Thursday, April 30, 2015

Kristof on Baltimore

When Baltimore Burned

As Riots Follow Freddie Gray's Death in Baltimore, Calls for Calm Ring Hollow - The Atlantic

As Riots Follow Freddie Gray's Death in Baltimore, Calls for Calm Ring Hollow - The Atlantic
by Ta Nehisi Coates // The Atlantic

Rioting broke out on Monday in Baltimore—an angry response to the death of Freddie Gray, a death my native city seems powerless to explain. Gray did not die mysteriously in some back alley but in the custody of the city's publicly appointed guardians of order. And yet the mayor of that city and the commissioner of that city's police still have no idea what happened. I suspect this is not because the mayor and police commissioner are bad people, but because the state of Maryland prioritizes the protection of police officers charged with abuse over the citizens who fall under its purview.
The citizens who live in West Baltimore, where the rioting began, intuitively understand this. I grew up across the street from Mondawmin Mall, where today's riots began. My mother was raised in the same housing project, Gilmor Homes, where Freddie Gray was killed. Everyone I knew who lived in that world regarded the police not with admiration and respect but with fear and caution. People write these feelings off as wholly irrational at their own peril, or their own leisure. The case against the Baltimore police, and the society that superintends them, is easily made:
Over the past four years, more than 100 people have won court judgments or settlements related to allegations of brutality and civil rights violations. Victims include a 15-year-old boy riding a dirt bike, a 26-year-old pregnant accountant who had witnessed a beating, a 50-year-old woman selling church raffle tickets, a 65-year-old church deacon rolling a cigarette and an 87-year-old grandmother aiding her wounded grandson ....
And in almost every case, prosecutors or judges dismissed the charges against the victims—if charges were filed at all. In an incident that drew headlines recently, charges against a South Baltimore man were dropped after a video showed an officer repeatedly punching him—a beating that led the police commissioner to say he was “shocked.”

Wednesday, April 29, 2015

President Obama remarks on Baltimore

Candidate Clinton laments mass incarceration, but proposes only a "national debate" to address it //Sentencing Law and Policy

Sentencing Law and Policy: Candidate Clinton laments mass incarceration, but proposes only a "national debate" to address it
by Prof. Douglas Berman
I have now had a chance to read this full text of Hillary Clinton's big policy speech on criminal justice reform delivered today at Columbia University (previewed here).  If forced to summarize my reaction in a word, I would probably go with ... MEH.  
The Clinton speech included plenty of heart-felt expressions of existing problems because, in Clinton's words, "we have allowed our criminal justice system to get out of balance."  She also claimed to have past legal experiences that enabled her to "see how families could be and were torn apart by excessive incarceration."  But despite staying that it was "time to change our approach [and] to end the era of mass incarceration," Clinton provided no concrete (or even not-so-concrete) proposals that could help chart a new approach that would help end the mass incarceration era. 
Though the Clinton speech merits a read in full, here are some excerpts from Clinton's comments on "how we approach punishment and prison":
It's a stark fact that the United States has less than 5 percent of the world's population, yet we have almost 25 percent of the world's total prison population. The numbers today are much higher than they were 30, 40 years ago, despite the fact that crime is at historic lows.
Of the more than 2 million Americans incarcerated today, a significant percentage are low-level offenders: people held for violating parole or minor drug crimes, or who are simply awaiting trial in backlogged courts. Keeping them behind bars does little to reduce crime. But it is does a lot to tear apart families and communities....
Without the mass incarceration that we currently practice, millions fewer people would be living in poverty. And it's not just families trying to stay afloat with one parent behind bars. Of the 600,000 prisoners who reenter society each year, roughly 60 percent face long-term unemployment. And for all this, taxpayers are paying about $80 billion a year to keep so many people in prison....
If the United States brought our correctional expenditures back in line with where they were several decades ago, we'd save an estimated $28 billion a year. And I believe we would not be less safe. You can pay a lot of police officers and nurses and others with $28 billion to help us deal with the pipeline issues.
It's time to change our approach. It's time to end the era of mass incarceration. We need a true national debate about how to reduce our prison population while keeping our communities safe.
I don't know all the answers. That's why I'm here — to ask all the smart people in Columbia and New York to start thinking this through with me. I know we should work together to pursue together to pursue alternative punishments for low-level offenders. They do have to be in some way registered in the criminal justice system, but we don't want that to be a fast track to long-term criminal activity, we don't want to create another "incarceration generation."

Supreme Court Upholds Bar on Judges Soliciting Contributions

Lanell Williams-Yulee -unsuccessful candidate
The First Amendment can be restricted when Courts limit the ability of judicial candidates for election to solicit contributions.  In a rare victory against the anti-regulatory use of free speech principles, the Supreme Court today rejected the claim that free speech rights trump restrictive state regulations.  Chief Justice Roberts wrote the opinion of the Court - one in which no other Justice fully joined. An excerpt from the Syllabus of today's fractured 5-4 rulings in Yulee v. Florida State Bar follows.
Justice Scalia dissented, joined by Kennedy, Thomas, and Alito. - gwc
Florida is one of 39 States where voters elect judges at the polls. To promote public confidence in the integrity of the judiciary, the Florida Supreme Court adopted Canon 7C(1) of its Code of Judicial Conduct, which provides that judicial candidates “shall not personally solicit campaign funds . . . but may establish committees of responsible persons” to raise money for election campaigns. Petitioner Lanell Williams-Yulee (Yulee) mailed and posted online a letter soliciting financial contributions to her campaign for judicial office. The Florida Bar disciplined her for violating a Florida Bar Rule requiring candidates to comply with Canon 7C(1), but Yulee contended that the First Amendment protects a judicial candidate’s right to personally solicit campaign funds in an election. The Florida Supreme Court upheld the disciplinary sanctions, concluding that Canon 7C(1) is narrowly tailored to serve the State’s compelling interest.
Held: The judgment is affirmed. 

Monday, April 27, 2015

Why Chief Justice John Roberts Might Support Gay Marriage -

Why Chief Justice John Roberts Might Support Gay Marriage -

by Joseph Landau // Associate Professor, Fordham Law School

As chief justice, John Roberts occupies a unique place in the judiciary. While it is not his job to simply validate the decisions of the lower court judges — the Supreme Court should reverse the lower courts when they err — having faith in the lower federal judiciary, and showing respect for the dialogue between the Supreme Court and lower federal courts, might be especially appropriate here.

Since the 2013 Windsor ruling [voiding the Defense of Marriage Act], four federal appellate courts and more than 30 federal trial judges have issued pro-marriage rulings for same-sex couples. (By contrast, only one federal appellate court — the Sixth Circuit, based in Cincinnati — and a handful of federal trial judges have ruled against same-sex couples.) These judges reflect a broad array of appointees by Republican and Democratic presidents alike. Does Chief Justice Roberts truly believe that so many of his lower-court colleagues have gotten the law wrong? Possibly — but the growing consensus on the ground could nudge him to side with a vast majority of his colleagues on the federal bench.
Read more

Chevron/Ecuador Oral Argument in 2nd Circuit// Bob Percival/GLOBAL ENVIRONMENTAL LAW:

Chevron (which merged with Texaco) obtained an order that under RICO that plaintiffs attorney Steve Donziger had corruptly procured a huge judgment against Texaco.  Damages are claimed for environmental damage by the oil company in the Equadoran Amazon.  Plaintiffs - who are alienated from Donziger - seek to enforce the judgment.  - gwc
GLOBAL ENVIRONMENTAL LAW: Chevron/Ecuador Oral Argument in 2nd Circuit, Four More Student Blog Posts (by Bob Percival):
"On April 20 a three-judge panel of the U.S. Court of Appeals for the Second Circuit heard an appeal of a RICO judgment obtained by Chevron to prevent villagers in the Oriente region of Ecuador from enforcing a $9 billion judgment by an Ecuadoran court against Chevron.  The three judges hearing the case were Amalya L. Kearse, Barrington D. Parker, and Richard C. Wesley. Judge Richard Wesley stunned both sides by asking at oral argument whether the Second Circuit had the power to order the entire dispute retried from scratch in federal district court. Counsel for the plaintiffs in the Ecuadoran lawsuit responded that the court could make such an order, while Ted Olson, arguing for Chevron, stated that he “couldn’t agree” to such a proposal.  Judge Wesley also questioned why Chevron was simultaneously pursuing an arbitration action against the state of Ecuador and the RICO action and asked what would happen if they reached contradictory conclusions.   "

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Evan Wolfson Freedom to Marry: He invented the gay marriage liberty and morality strategy.

If William Eskridge is the most prominent academic writing to legitimize same sex marriage (see his A History of Same Sex Marriage (1993)), Evan Wolfson - a New Jersey lawyer - has been its Ruth Ginsburg or Thurgood Marshall. - gwc
Evan Wolfson Freedom to Marry: He invented the gay marriage liberty and morality strategy.:
by Mark Joseph Stern // Slate

 "Evan Wolfson’s greatest hope for the Supreme Court’s upcoming marriage equality ruling is that it will put him out of a job. Wolfson has been fighting for nationwide legalization of same-sex marriage since the early 1980s, most recently as the president of Freedom to Marry, a wildly successful campaign. This June, his former dream may well become a reality—at which point Wolfson plans to declare victory, disband his campaign, and become the happiest unemployed person in America. MARK JOSEPH STERN Mark Joseph Stern is a writer for Slate. He covers science, the law, and LGBTQ issues. “The work of the gay rights movement will be far from over,” Wolfson told me in an interview earlier this month, “but the work of the campaign will be finished. Once we’ve won marriage, our job will be done.”"

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Sunday, April 26, 2015

For U.S. Catholic Bishops the Perfect is the Enemy of the Good

"The optimal environment for the raising of children is a family structure in which both a mother and a father are present and bonded together."
Brief of the U.S. Conference of Catholic Bishops in 
Obergefell v. Hodges 

Therefore couples who don't fit that mold should not be allowed the same legal rights, nor their bonds confirmed by government sanction....Classic non-sequitur.  The perfect is the enemy of the good.  
Fortunately many other denominations no longer follow that illogic, as William Eskridge - the intellectual father of the movement points out in this pre-argument Times Op-Ed.
- gwc

Saturday, April 25, 2015

N.J. First Lady Mary Pat Christie quits lucrative Wall Street day job |

Chris Christie styles himself a guy who will make the tough calls: like cutting my Social Security benefits.  Easy for him to say.  - gwc
N.J. First Lady Mary Pat Christie quits lucrative Wall Street day job |
Mary Pat Christie has been the primary breadwinner in the Christie family during Chris Christie's governorship. The household earned just under $700,000 in 2013, according to the Christie's 2014 tax returns. The bulk of that money, some half a million dollars, came from the First Lady's salary and other compensation from a partnership payout at Cantor-Fitzgerald that year.

"I feel like I drafted a really good pitcher in high school and she turned out to be a major leaguer," Christie told the Star-Ledger in 2012.

The Christies' income became source of controversy last week. The governor made national headlines after he told the editorial board of the Manchester Union-Leader in New Hampshire that "my wife and I...are not wealthy by current standards" – despite the fact that their combined income placed them well inside the top 1 percent of earners nationally. A likely 2016 candidate, Christie had been visiting New Hampshire to promote his plan for entitlement reform, which called for reduced Social Security benefits for retired seniors earning more than $80,000.

The Everest Moral Dilemma – Beyond the Edge

The Everest Moral Dilemma – Beyond the Edge

A line of climbers on the Lhotse Face of Mount Everest, Nepal; Christian Kober/Robert Harding World Imagery/Getty Images
by Mark Synnott of Synnott Mountain Guides on April 21, 2015

As another Himalayan season approaches, media attention focuses once again on the Everest guiding industry. The loss last season of 16 Nepalis in a single cataclysmic avalanche that raked the Khumbu Icefall has intensified a long-standing debate over the practice of stringing the mountain with miles of fixed ropes and constructing elaborate camps—complete with pallet-loads of bottled oxygen—all so affluent clients, many of whom have limited climbing experience, can stand on top of the world. More and more people are asking: Is this form of fully-catered climbing—enabled by a small army of Sherpas and other mountain workers who are exposed to enormous risk—really climbing at all?
It was none other than alpinism’s grand master Reinhold Messner, the first person (along with Peter Habeler) to ascend Everest without supplemental oxygen in 1978, which he followed up two years later with the mountain’s first unsupported solo summit, who famously said that he would climb Everest by “fair means” or not at all. In his landmark 1971 essay, The Murder of the Impossible, Messner decried the growing trend of climbers using oxygen and excessive amounts of equipment to bring down a mountain’s difficulty, rather than rising up to meet the mountain on its own terms. He famously wrote: “Today’s climber doesn’t want to cut himself off from the possibility of retreat: he carries his courage in his rucksack…”
In an article last year in the Guardian that ran shortly after the deadly avalanche, British journalist and climber Ed Douglas addressed the essence of the Everest moral dilemma, i.e. the growing trend of guiding companies outsourcing the inherent danger of Himalayan mountaineering to Sherpas. “What if the term ‘Everest climber’ were given to the people who climbed the features of the mountain directly, rather than awarded to those who ascended its pre-fixed ropes? More honest accounts might result in a clearer vision of what takes place on Everest—the beginnings, perhaps, of real discussions about effective and lasting solutions.”

When the SEC Pays Your Lawyer for Informing on You..Is that a Good thing?//Forbes

As we were discussing...gwc

When The SEC Pays Your Lawyer For Informing On You, Is That A Good Thing? - Forbes

The Securities and Exchange Commission announced it paid a $1 million bounty to a compliance officer who blew the whistle on his employer, the second such case where the agency has paid a company official charged with rooting out misconduct for bringing evidence of it to the SEC instead.

In its news release, the SEC is careful to note it adhered to rules it developed after the Dodd-Frank Act of 2010 authorized bounties for employees who bring information about securities law violations to the SEC. To avoid obvious conflicts of interest — not to mention a potential breach of the attorney-client privilege — whistleblowers who work within a company’s compliance division must first report the suspected wrongdoing to a superior, then wait 120 days before determining nothing will be done about it and going to the SEC.

But is that enough? Some lawyers, as well as the influential New York County Lawyers’ Association, think not. By paying the very people whose job it is to make sure a company is complying with the law for information suggesting it’s breaking it, the government is giving them a strong incentive to sit back, wait 120 days, and try to cash in.

When the SEC was developing the rules for whistleblowers, “a lot of comment revolved around `we can’t have a system that allows in-house counsel and compliance officials, who are tasked to be at the epicenter of problems and solve those problems, to be incentivized to end-run their employer and go to the SEC,’” said Gregory Keating, a shareholder with Littler Mendelson and management representative on the Congressional Whistleblower Protection Advisory Committee.

The special rules for compliance officials, most of whom are lawyers, are designed to prevent unethical behavior like allowing a problem to fester so the potential bounty is larger. Compliance officials can only turn over confidential information to the SEC if they suspect the company or investors are in danger of imminent financial harm, for example.

“I would submit that’s a malleable standard,” said Keating, as is the requirement that compliance officers first notify their superiors of the situation. “What is giving them information?” he said. “A lot of times the recipient of the information will say `you’re simply doing your job,’” which is to investigate wrongdoing, report it to superiors, and then come up with a solution.

The New York County Lawyers Association took a look at the issue and, in a 2013 opinion, held that there would be a conflict of interest in “the overwhelming majority of cases,” if a lawyer effectively went to work for the government under Dodd-Frank by turning over confidential information in search of a bounty. There are well-established exceptions to the attorney-client privilege when a lawyer learns his client is engaged in fraud, say, or supplied false information that corrupted a filing with the court. The lawyer doesn’t collect a payment for alerting the government or a judge to those situations, however.

“Even when disclosure is permitted under the New York Rules, for example, when clear corporate wrongdoing rising to the level of crime or fraud has been perpetrated through the use of the lawyer’s services, preventing wrongdoing is not the same as collecting a bounty,” the New York County association said.

Friday, April 24, 2015

The Liberal Arts vs. Neoliberalism | Commonweal Magazine

Far from the Tiger Moms and the standardized testing gradgrinds of Shanghai and leafy Connecticut suburbs was the Jesuit high school where I was educated on Carroll Street  in Brooklyn.  Taught by celibates, four years of Latin, three of ancient Greek, two of French, four of English...we certainly did not have a market-oriented education.  We hoped for meaningful careers and mostly got them.  - gwc
The Liberal Arts vs. Neoliberalism | Commonweal Magazine

William Deresiewicz's 'Excellent Sheep'
Excellent Sheep: The Miseducation of the American Elite and the Way to a Meaningful Life
William Deresiewicz
Free Press, $26, 245 pp.
by Jackson Lears
In Deresiewicz’s book, for starters. He does not mince words: “An undergraduate experience devoted exclusively to career preparation is four years largely wasted. The purpose of college is to enable you to live more alertly, more responsibly, more freely: more fully.” The key to this process is “developing the habit of skepticism and the capacity to put it into practice. It means learning not to take things for granted, so you can reach your own conclusions.” So it comes down to an effort at self-culture, as Emerson would have said. And self-culture involves an inward turn: it is “through this act of introspection, of self-examination, of establishing communication between the mind and the heart, the mind and experience, that you become an individual, a unique being—a soul. And that is what it means to develop a self.” Deresiewicz, the son of Orthodox Jewish parents, is not himself religious. But he finds religious language—beginning with the marriage of self and soul—inescapable in describing the intellectual quest fostered by the liberal arts. “People go to monasteries to find out why they have come, and college ought to be the same,” he writes. It takes real courage to make such claims amid the market-driven discourse of contemporary higher education.
It is a platitude that we cannot defend the humanities without slipping into platitudes. Why is that? Part of the answer involves the corrosive impact of contemporary intellectual fashion. We are besieged by a resurgence of positivist scientism—the transformation of science from a method to a metaphysic, promising precise answers to age-old ultimate questions. Yet while pop-neuroscientists, evolutionary psychologists, and other defenders of quantifiable certainty have beaten back postmodern philosophical critiques, the postmodern style of ironic detachment has flourished. The recoil from modernist high seriousness, epitomized by the turn from Abstract Expressionist painting to Pop Art, has persisted long after Andy Warhol displaced Jackson Pollock as the celebrity artist du jour. As a signifier of the dominant cultural tone, the furrowed brow has been largely eclipsed by the knowing smirk. The commitment to searching out deep truths has yielded to the celebration of playing with surfaces (in the arts) or solving problems (in the sciences). The merger of postmodern irony and positivist scientism has been underwritten by neoliberal capitalism—whose only standard of value is market utility.

Wednesday, April 22, 2015

Gender, the gay marriage fight's missing piece: Column

Keeping it simple. - gwc
Gender, the gay marriage fight's missing piece: Column: USA Today
by Andrew Koppelman (Northwestern Law School)
"As the Supreme Court considers the constitutionality of laws banning same-sex marriage later this month, few have noticed that the case can easily be resolved under existing precedent. Laws banning gay marriage are unconstitutional because they discriminate on the basis of gender. If same-sex marriage is forbidden, Anne is allowed to marry Bob, but Charles can't. Charles is denied the right to marry Bob, solely because Charles is a man. Denial of a legal right solely because of gender is the very essence of sex discrimination. Laws banning gay marriage discriminate on the basis of gender even more clearly than on the basis of sexual orientation. Anne is still allowed to marry Charles, even if one of them happens to be gay or lesbian. Bob is denied that right whether he is gay or not. The Supreme Court has long held that laws discriminating based on gender must be presumed unconstitutional and invalidated unless the government can prove that they can pass rigorous, heightened judicial scrutiny."

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Conviction Review Unit | The Brooklyn District Attorney's Office

Conviction Review Unit | The Brooklyn District Attorney's Office
 "The Conviction Review Unit, established in 2014, is tasked with reviewing and thoroughly investigating convicted offenders’ claims of innocence. The unit is comprised of 10 experienced assistant district attorneys, as well as a team of detective investigators and legal support staff. The unit is jointly led by Professor Ronald Sullivan, Jr., of Harvard Law School, and Mark Hale, a career prosecutor with over 30-years-experience trying homicides and other serious offenses. The unit’s work is further reviewed by an independent team made up of three long-tenured attorneys: Bernard W. Nussbaum, Jennifer G. Rodgers, and Gary S. Villanueva. To date, the unit’s work has led to the release of 13 defendants wrongfully convicted of various serious crimes."
 Brooklyn D.A. Kenneth Thompson's Address to NY City Bar Association (video)

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Tuesday, April 21, 2015

China Law Translate tool - An Interview With Jeremy Daum | China Law & Policy

When I first got interested in Chinese law I set about translating the first draft of what became the Tort Law. To my knowledge (and that of the Chinese editors who first published the translation) we had nothing that could print both the Hanzi 汉字and 拼音pīnyīn with tone marks. So the first translation appeared without tone marks over the pinyin characters. Today tools like Google pinyin input abound. I particularly find useful cjkware’s Key which enables multiple display formats, e.g. hanzi with tones, hanzi/zhuyinfao with tones, hanzi and pinyin.
But the China Law Translate tool is the most magical – enabling collaboration around the world. I remember my years in the Peace Corps outside Mumbai – 1967 – 1969. The most reliable way to communicate with others abroad was by Aerogramme – a folding airmail letter. - gwc
Do We Still Need to Translate China's Laws? An Interview With Jeremy Daum | China Law & Policy
by Elizabeth Lynch
In the past ten years, the number of Chinese-speaking foreign scholars of Chinese law has increased dramatically, and the number of Chinese lawyers who speak and read English has increased even more. Inevitably, this raises the question of whether translations of Chinese legal materials are still necessary and likewise for American laws translated into Chinese.?
For Jeremy Daum, the creator of China Law Translate, a community-based translation website, the answer is yes, and more so now than ever. China Law Translate (“CLT”) uses internet resources and a volunteer army of netizens to translate various legal documents – laws, regulations, articles, interpretations and news stories from Chinese into English and vice versa.

Monday, April 20, 2015

Who Subsidizes Restaurant Workers' Pitiful Wages? You Do | Mother Jones

Many people - not just Republican voters - harbor the view that people who get Food Stamps, etc. are lazy people who really need a kick in the ass.  But the Fight for Fifteen labor movement campaign is getting a boost from the recognition that Food Stamps, Medicaid, and Earned Income Tax Credit are really subsidies to low wage employers. - gwc
Who Subsidizes Restaurant Workers' Pitiful Wages? You Do | Mother Jones
by Hannah Levintova
Americans who like to eat out occasionally, the full-service restaurant industry is full of relatively affordable options—think Olive Garden, Applebees, or Chili's. But these spots aren't exactly a bargain once a hefty hidden cost is factored in: The amount of taxpayer assistance that goes to workers earning little pay.
Food service workers have more than twice the poverty rate of the overall workforce, and thus more often seek out public benefits. A new report published last week by the Restaurant Opportunities Centers United (ROC), a restaurant workers' advocacy and assistance group, calculated the tab and found that from 2009 to 2013, regular Americans subsidized the industry's low wages with nearly $9.5 billion in tax money each year. That number includes spending from roughly 10 different assistance programs, including Medicaid, food stamps, and low-income housing programs like Section 8.

Second Smoking Gun Of Prosecutorial Team Cheating Emerges In Death Penalty Case | OC Weekly

Second Smoking Gun Of Prosecutorial Team Cheating Emerges In Death Penalty Case | OC Weekly
by R. Scott Moxley

We reported earlier this week ("Dial Eme For Murder," April 15) that the Orange County district attorney's office (OCDA) won a 2007 death penalty case after hiding a key piece of evidence that would have undermined the government's trial position. Prosecutor Dan Wagner argued defendant Anthony R. Navarro, a Mexican Mafia associate and a prolific FBI informant, ordered three gang soldiers to carry out an October 2002 hit near Knott's Berry Farm. Navarro said he couldn't have commanded the soldiers because the gang wanted him dead for being a snitch, an assertion Wagner mocked as a "ridiculous" lie.

The prosecutor wasn't just wrong; law enforcement possessed evidence proving the error. Nearly two months before successfully asking jurors to impose death, government agents recovered the Mexican Mafia's secret "hard candy" list, which recorded the names of individuals the gang wanted murdered on sight, including Navarro, a.k.a. "Droopy." In a flagrant violation of ethics, officials hid that document from the defense, Judge Francisco P. Briseno and a jury of seven men and four woman. The 48-year-old defendant now lives on San Quentin State Prison's death row hoping the state Supreme Court will someday overturn his conviction.

But the Weekly has learned Wagner's prosecution of Navarro, his only death penalty victory before taking over the OCDA's homicide unit, cheated the defense of a second piece of critical exculpatory evidence: a letter written by Armando Macias, one of the gang soldiers that killed victim David Montemayor and months later used shanks in a murder attempt on Navarro inside a Fullerton courthouse holding cell.

Sunday, April 19, 2015

Israel’s Low Court of Justice helps perpetuate the occupation - Opinion - Israel News | Haaretz

Israel’s Low Court of Justice helps perpetuate the occupation - Opinion - Israel News | Haaretz
by Gideon Levy

Behold the most recent rulings by the fortress of Israeli justice. The so-called Anti-Boycott Law was approved in principle, as was the prohibition against Palestinian security prisoners studying behind bars. And for dessert, the state can continue confiscating Palestinian assets in Jerusalem simply because the owners are in the West Bank. We’re talking about heinous injustice, utter inequality before the law and glaring nationalism.

This is the court’s typical rubber stamp for the security apparatus. In such a situation, what do we have a High Court for? In practice, its damage outweighs its use. So maybe we should stop petitioning it on issues of the occupation.

According to the wind blowing through the High Court, it’s now prohibited to fight the occupation using the most legitimate means — a boycott. To provide a foundation for its rulings, the court needs to quote from the Passover Haggadah. The honorable justices found no better justification for a situation where it’s permitted to preach and confiscate everything but the products of injustice.

Trout Fishing, a Taut Line to Our Past -

Trout Fishing, a Taut Line to Our Past -
by James Prosek

To me, trout fishing, in particular fly-fishing, is many things, but above all, it is a conversation, a communication — with a creature to which we are connected by common ancestry not so very long ago (420 million years, give or take). The rod, the line and the hook are the tools of this communication, but the fly or lure is the ultimate translator between languages, between our world of names, structures, systems and hierarchies and theirs of instinct, impulse and experience. Trout fishing connects us not only to our ancestral past, but to our legacy as hunter-gatherers, to a time when we needed to catch and kill in order to survive. This, I have concluded after many years of doing it, must be primarily why we fish, to satisfy some latent impulse deep in our evolutionary fabric — even if now, as we release the fish, it is more of a kind of predatory performance art. (One could argue that many, or all, sporting activities are.) It is not, however, nor has it ever been, simply about the predation itself, but the whole assemblage of steps before and after, about engaging our senses with a larger interconnected whole (from anticipation and pursuit to the preparation and eventual ingestion of our prey).

Saturday, April 18, 2015

Terminating China Employees: The Basics

We know a lot of things... that in China workers have no rights because they have phony government controlled unions, right?  
Terminating China Employees: The Basics
by Grace Yang // China Law Blog

The People's Republic of China  Labor Contract Law permits employers to unilaterally terminate labor contracts without having to provide notice or economic compensation under one of the following circumstances:
  • The employee does not satisfy the conditions for employment during the probation period.
  • The employee materially breaches the employer’s rules and regulations.
  • The employee commits a serious dereliction of duty or practices graft, causing substantial damage to the employer.
  • The employee has established an employment relationship with another employer that materially impact the completion of his or her tasks with his or her existing employer, or he or she refuses to terminate such employment relationship with the other employer, after required to do so by the existing employer.
  • The employee uses deception or coercion, or takes advantage of the employer’s difficulties, to cause the employer to conclude the labor contract, or to make an amendment thereto, that is contrary to the employer’s true intent
  • The employee has criminal liability imposed against him or her.
Under one of the following circumstances, the employer may terminate the employee, but it must either give thirty days written notice or pay additional economic compensation equal to one month of the employee’s salary:
  • The employee falls ill or is injured for a non-work-related reason, and is unable to handle his or her original position upon expiration of the medical treatment period as prescribed, nor can he or she assume any other position as arranged by the employer.
  • The employee is incapable of doing his or her job and would remain so even with training or with adjustments to his or her position.
  • A major change in the objective circumstances relied upon at the time of the signing of the labor contract hinders continued fulfillment of the original contract and, after consultations, the employer and employee are unable to reach agreement on amending the labor contract.
In addition, under the Labor Contract Law, an employer may terminate employees by initiating mass layoffs, provided conditions are met under the relevant laws and regulations.

Chris Christie’s Budget ‘Sins’ - ProPublica

In pledging to fix New Jersey’s ailing finances, Gov. Chris Christie promised to avoid one-time budget fixes he called “sins of the past.”  A review by ProPublica and The Washington Post shows he’s committed some of the same sins – and some new ones.

Underfunding Pensions

How it worked: Christie has paid $2.2 billion into the state’s pension funds so far, less than agreed to under a landmark 2011 pension reform he championed.
Results: Because of skipped payments by Christie and predecessors, forecasts say the pension funds will run out of money by 2032.
Chris Christie’s Budget ‘Sins’ - ProPublica

Scott Walker faces the Blue Wall | GOPLifer

Scott Walker faces the Blue Wall | GOPLifer
by Chris Ladd
In the prevailing campaign narrative, we are supposed to believe that Wisconsin Governor Scott Walker is uniquely electable because of his success in a solidly blue state. Instead of demonstrating a Republican path to the White House, the Walker campaign demonstrates why the GOP’s current posture has eliminated it from national relevance. Walker probably is the most electable potential Republican nominee and he would lose his home state – and the election, to almost any Democratic candidate.
The Blue Wall gets its power from a single political phenomenon – the conversion of the former slave and Jim Crow states from single-party Democratic rule to single party Republican rule. A new generation of Neo-Confederates has found vast new room to operate inside a far weaker political organization. Freed from the shackles of a more powerful national party, Neo-Confederates inside the GOP are now dictating terms instead of accommodating.
This has given Republicans in the old Jim Crow belt tremendous new local power, but it has converted the Republican Party into a regional force with little or no appeal beyond aging whites. Success for northern Republicans in state and local races depends on two factors. First, the template of relevant issues is much narrower than in national races, meaning voters are sometimes willing to tolerate or ignore otherwise unpopular positions. Second, candidates in state and local races can often establish a safe distance from the positions of the national party. Those two criteria are impossible to meet in a campaign for the White House.
In Wisconsin, for example, Walker built his appeal on his willingness to break the smothering stranglehold of public employee unions on state and local politics. For all the noise on the issue nationally, that position has always been a winner there for very good reasons and it remains a winner today. That is a purely regional concern that voters in Missouri or Nevada or Texas likely do not even comprehend.
Walker’s first campaign tried to conceal his social conservatism, downplaying abortion and other issues. Voters were keen enough to see reforms in state government to roll the dice on social issues, betting that there was little harm he could do. Despite taking some extreme Tea Party positions, voters have stuck with him by a narrow margin out of fear that a loss by Walker would undo the valuable work he has done. Polls are making clear that those voters are not willing to tolerate his far-right positions in a role as powerful as the White House. Truth be told, after what he has tried to do to the state’s flagship university, they probably wouldn’t return him to another term in the Governor’s office. He’s finished.

Editorial: Clear all obstacles from the path to peace with Iran | National Catholic Reporter

Editorial: Clear all obstacles from the path to peace with Iran | National Catholic Reporter

We join others in urging completion of these talks with all due speed. Time is of the essence. Myriad details must be worked out by June 30. Much work remains. The negotiators cannot allow themselves to be distracted from their important work. But distracted they are.

At a time when all obstacles should be cleared from this peace path, Congress insists on throwing up roadblocks, impeding the peace process. It is simply outrageous that Congress cannot stand with the president to ensure a safer world. Ripping pages from their partisan playbooks on Obamacare and budget sequestration, the Republicans try to apply them to foreign policy. They restrict the president's actions but offer no credible alternative. Instead, they offer overheated, hyperbolic rhetoric about standing tough and being strong. Their words are petty and pandering and ultimately diminish the credibility of our governing institutions.

In an inexplicable capitulation to the basest of Republican partisanship, Democrats joined Republicans to elbow themselves up to the negotiating table, where they neither belong nor fit. On April 14, the Senate Foreign Relations Committee unanimously approved a bill that would require Congress to review, and then vote on, the final text of a nuclear deal.

The bill is likely to be passed by both chambers. It shouldn't get that far. It should be stopped. We're all for transparency and for congressional oversight of presidential actions, but the framework agreement is neither the right issue nor the right time for Congress to be meddling. The added steps introduce needless, perhaps dangerous, uncertainties into the negotiating process.

Thursday, April 16, 2015

Does Inequality make Us More Conservative? // xpostfactoid

Does Inequality make Us More Conservative? // xpostfactoid
by Andrew Sprung

Thomas Edsall cites disturbing research indicating that as inequality has grown in the U.S. over the last forty years, Americans' support for policies that redistribute wealth has shrunk. Specifically, more recently, support for universal healthcare has declined over the period in which the ACA was debated, passed and enacted:
The erosion of the belief in health care as a government-protected right is perhaps the most dramatic reflection of these trends. In 2006, by a margin of more than two to one, 69-28, those surveyed by Gallup said that the federal government should guarantee health care coverage for all citizens of the United States. By late 2014, however, Gallup found that this percentage had fallen 24 points to 45 percent, while the percentage of respondents who said health care is not a federal responsibility nearly doubled to 52 percent.
This shorter term shift is unsurprising.  As I've noted before, Henry Aaron and Gary Burtless calculated in early 2014 that the ACA would directly distribute income only to Americans in the lower 20-25% of the income distribution. Data recently published by HHS bears this out: 68% of the 11.6 million private plan buyers on the ACA exchanges have incomes below 200% of the Federal Poverty Level -- and all 12 million beneficiaries of the ACA Medicaid expansion have incomes under 138% FPL. We all stand to benefit if the ACA really is helping to control healthcare cost growth, as from the certainty of available (and, in periods of low income, affordable) insurance -- pre ACA, a third of the population in a three-year period suffered periods of uninsurance. Large portions of the population also suffer periods of poverty. But the perception that the ACA right now is primarily benefiting the poor is grounded in reality.

That fact highlights a perpetual dilemma for Democrats: it's politically advantageous to be perceived to be helping the middle class -- and politically hazardous to be perceived to be helping primarily the poor.

Read more

It’s had some military success, but the Islamic State is no existential threat - The Washington Post

It's had some military success, but the Islamic State is no existential threat - The Washington Post:
"By Rosa Brooks  [Senior fellow at New America and a law professor at Georgetown University. From 2009 to 2011, she served as a senior adviser to the undersecretary of defense for policy.]

ISIS The State of Terror By Jessica Stern and J.M. Berger Ecco. 385 pp. $27.99

It is dangerous to underestimate your enemies — or overestimate them. The United States has an uncanny knack for doing both, often at the same time. Take the self-proclaimed Islamic State. On the one hand, President Obama tells us that the group, also known by the acronym ISIS,“has no vision other than . . . slaughter” and “can never possibly win [anyone] over by its ideas or its ideology — because it offers nothing.” There is no need to send U.S. ground troops into combat against the militants: “It’s not necessary to defeat [them].”

 On the other hand, former defense secretary Chuck Hagel insists that the Islamic State is an “imminent threat to every interest we have,” Sen. Bill Nelson (D-Fla.) says the group is “a clear and present danger,” and Sen. Lindsey Graham (R-S.C.) urges the president to deploy U.S. ground troops to fight the extremists in Iraq and Syria “before we all get killed here at home.”

 Jessica Stern and J.M. Berger’s new book, “ISIS,” should be required reading for every politician and policymaker. Though it bears some of the inevitable scars characteristic of books written in a great hurry — it is uneven and a bit rough around the edges — their smart, granular analysis is a bracing antidote to both facile dismissals and wild exaggerations."

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A settlement boycott is the least we can do | Ibishblog

Israeli security forces hold a position during clashes with Palestinian youths from the Jalazoun refugee camp in the Beit El settlement, north of Ramallah, following a protest against Israeli settlements in the West Bank on 13 March 2015. (AFP/Abbas Momani)
A settlement boycott is the least we can do | Ibishblog:
by Hussein Ibish

With Israeli-Palestinian diplomacy, the peace process and the viability of the only workable formula for peace—a two-state solution—on life support following the reelection of Israeli Prime Minister Benjamin Netanyahu on a platform of opposing the creation of a Palestinian state, the world cannot simply throw up its hands and walk away. The temptation may be overwhelming, but the irresponsibility of “benign neglect” of the Israeli-Palestinian conflict will become painfully evident sooner rather than later. History shows that the issue does not remain quiet for long—it has an impeccable track record of erupting without warning in an extremely dangerous and destabilizing manner.
Among the numerous measures that ought to be employed by the international community to salvage the prospects for an eventual peace—without which the parties in the region are doomed to interminable conflict which will simply get more violent and intractable over time—one of the most obvious and indispensable is a thoroughgoing international economic boycott of Israel’s illegal settlements in the occupied Palestinian territories. The settlements are a direct violation of black letter international law, most notably Article 49 of the Fourth Geneva Convention. They are prohibited because they are a human rights violation against people living under occupation, who have a right not to be forcibly colonized by a foreign military power. This principle was not controversial in the immediate aftermath of the Second World War, when the Convention was drafted and approved.
Moreover, the settlements are by far the most damaging of all of the destabilizing elements that threaten short-term calm and long-term peace. They, alone, fundamentally alter the strategic landscape and basic reality that define relations between the occupying power, Israel, and the occupied Palestinian people. With every new settlement home, the Jewish Israeli constituency with a vested interest against making the compromises necessary for peace is enlarged and strengthened. From a Palestinian point of view, Israel’s aggressive settlement activity makes a mockery of negotiations by systematically prejudicing the future of key areas that are, or theoretically should be, the subject of peace talks, and would be indispensable parts of a future Palestinian state.

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Most GM Ignition Key Claims Barred

Torts Today: Most GM Ignition Key Claims Barred:
"Despite the "Valukas Report" which established see no evil  stance of GM and its General Counsel which actively sought to know less rather than more about liability actions, victims of injuries due to the defective GM ignition key system have been barred from pursuing their actions because GM's debts were discharged in bankruptcy and the new company that emerged after reorganization did not carry that burden. "New GM" - aware that it is in fact the same company - has hired the ADR icon Kenneth Feinberg to pay the claims on terms the company sets."-gwc

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Professional Responsibility Blog: Discussion of California proposed ethics opinion on e-discovery and the duty of competence

Professional Responsibility Blog: Discussion of California proposed ethics opinion on e-discovery and the duty of competence
by Prof. Alberto Bernabe
As you know by now, I am sure, the comment to Model Rule 1.1 on competence has been amended to state that the duty of competence includes the duty to be knowledgeable about "technology."   And that probably includes "e-discovery."

Enter California’s Proposed Formal Opinion 11-0004, a proposed opinion, not yet adopted by the rules committee, that discusses the issues that arise when an attorney who doesn’t know anything about e-discovery suddenly finds himself facing e-discovery problems that have crept into his case. It suggests that litigators should have minimal competence in e-discovery and may be violating their duty of competence if they do not either become competent or bring in someone who is competent.  Go here for a discussion of this important Opinion.

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Tuesday, April 14, 2015

Chris Christie tax avoider

Judge Rakoff Speaks Out at Harvard Conference: Full Speech | Big Law Business

Judge Rakoff Speaks Out at Harvard Conference: Full Speech | Big Law Business:
"...Of course, even lawyers devoted to the Fourth Principle may have different views as to what societal issues are of such central concern that lawyers should feel a professional responsibility to speak out about them. Nevertheless, I want to suggest one such issue, and I submit that it is one that is so deeply connected to the administration of law that even a Whitney North Seymour would have no difficulty seeing it as an appropriate subject for bar association resolutions and the like: and that is the issue of mass incarceration in our country today.

 But I should mention at the outset that the relative failure of organized bar associations and lawyers in general to speak out on this issue pales in comparison to the silence of the judges, who, I submit, have a special duty to be heard on this issue. Indeed, the commentary to Canon Four of the Code of Conduct for United States judges expressly encourages federal judges to speak out on issues relating to the administration of justice in general and criminal justice in particular. Yet, for too long, too many judges (including me) have been too quiet about an evil of which we are ourselves a part: the mass incarceration of people in the United States today. The basic facts are not in dispute. More than 2.2 million people are currently incarcerated in U.S. jails and prisons, a 500 percent increase over the past 40 years. Although the United States accounts for about 5 percent of the world’s population, it houses nearly 25 percent of the world’s prison population. The per capita incarceration rate in the U.S. is one-and-a-half times that of second-place Rwanda and third-place Russia, and more than six times the rate of neighboring Canada. Another 4.8 million Americans are subject to the state supervision imposed by probation or parole.

 Most of the increase in imprisonment has been for non-violent offenses, such as drug possession. And even though crime rates in the United States have declined consistently over the last 24 years, the number of incarcerated persons has continued to increase over most of that period, both because more people are being sent to prison for offenses that once were treated with other measures and because the sentences are longer. For example, even though the number of violent crimes has steadily decreased over the past two decades, the number of prisoners serving life sentences has steadily increased, so that one in nine persons in prison is now serving a life sentence.

 And whom are we locking up? Mostly young men of color. Over 840,000, or nearly 40 percent, of the 2.2 million U.S. prisoners are young African-American males. Put another way, one in nine African-American males between the ages of 20 and 34 is currently in prison, and, if current rates hold, one third of all black men will be imprisoned at some point in their lifetimes. Another 440,000, or 20 percent, of the 2.2 million U.S. prisoners are Hispanic males. This mass incarceration – which also includes about 800,000 white and Asian males, as well as over 100,000 women (the great majority of whom committed non-violent offenses) – is the product of statutes that were enacted, beginning in the 1970s, with the twin purposes of lowering crime rates in general and deterring the drug trade in particular.

These laws imposed mandatory minimum terms of imprisonment on many first offenders. They propounded sentencing guidelines that initially mandated, and still recommend, substantial prison terms for many other offenders. And they required life-time imprisonment for many recidivists. These laws also substantially deprived judges of sentencing discretion and effectively guaranteed imprisonment for many offenders who would have previously received probation or deferred prosecution, or who would have been sent to drug treatment or mental health programs rather than prison."

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Chart of the Day: Yet More Good News For Obamacare | Mother Jones

Chart of the Day: Yet More Good News For Obamacare | Mother Jones:
by Kevin Drum // Mother Jones
"During Obamacare's initial open enrollment period, the uninsured rate dropped dramatically. Then it leveled out a bit when enrollment closed. So how are things going in its second year? The latest Gallup numbers tell the story. During the first month of open enrollment, the uninsured rate dropped moderately, and then dropped sharply again during the first quarter of 2015. It's now down to 11.9 percent:"

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Monday, April 13, 2015

Medicaid blocked for millions by GOP

A Tenured Professor On Why Hiring Adjuncts Is Wrong

A Tenured Professor On Why Hiring Adjuncts Is Wrong:
As the college admissions season winds down, I hav­e some hard choices to make, but my dilemma is not about choosing where to enroll. It’s about how many adjunct instructors I will hire to teach required courses next fall. As a department chair at Columbia University, I am compelled to hire many people on a part-time basis, although they want and deserve full-time jobs. These adjuncts are among the finest, longest-serving instructors in many universities, and it’s well known that their lasting contributions can transform the lives of their students. It’s also no secret that they are getting a raw deal. Overworked and underpaid, they often struggle to get by and, when taken to an extreme, the consequences can be tragic. 

With each passing year, it becomes clearer that cheap labor has become the hidden foundation of American higher education. According to the American Association of University Professors, more than 50 percent of all faculty hold part-time appointments. A vast workforce of mostly non-unionized adjunct instructors—the so-called “contingent faculty”—now comprises the core of the teaching faculty. They often teach as many courses as full-time instructors, but because they are considered part-time, they have no voting power in departments or universities, no benefits, no job security and no office in which to meet with their students."

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