Monday, August 31, 2015

Judge should have removed juror for bias: New Jersey Appeals Court

Adam Liptak recently reported in the New York Times that racial strike patterns in jury selection is widespread - and often without consequence.

In the days before Batson v. Kentucky (1985) when I was trying cases for the Public Defender and Joseph Donahue was an Assistant County Prosecutor in Newark New Jersey we (defenders and prosecutors) with scarcely a second thought peremptorily struck jurors on the basis of their race and gender. Blacks were routinely stricken by the prosecutors, and we struck anyone who had a third cousin who was a cop, or was Italian from a town we considered racist.

When we once got the bright idea to object - in a case where Joe (now Judge) Donohue was the prosecutor - the judge brushed our objection aside saying "I will not have attorneys in my courtroom accusing each other like that". Now - over 30 years later - an Appellate Division panel in New Jersey has reversed car jacking convictions won in Donohue's courtroom, They instructed that judge and prosecutor that a casual attitude toward racial prejudice is unacceptable. The message is as apt for civil cases as it is for criminal cases.

The harm of sterotyping is not merely to the parties - plaintiff or defendant. As Louisiana attorney James Doyle argued to the Supreme Court in Edmonson v. Leesville Concrete [501 U.S. 614 (1991)] ]the insult, the equal protection violation, extends to the excluded juror, as this film from the Annenberg Center explains. 

The Rules of Professional Conduct provide little guidance. In fact the Comments to MRPC 8.4 specifically state that a judge's finding that a peremptory challenge was "exercised on a discriminatory basis does not alone establish a violation of this rule." Does such a soft touch explain in part Judge Donohue's "we all have some prejudice in us" approach in the case excerpted below? - gwc

The Appellate Division of the  Superior Court in State of New Jersey v. Brown the Appellate Division has reversed two convictions for first degree carjacking  
"because the trial judge failed to remove a deliberating juror who disclosed her racial bias to two of her fellow jurors and to the judge. Specifically, on the second day of deliberations, Juror 4 told Jurors 5 and 12 she was "concerned" and "nervous" because she had seen two African-American men that morning in the neighborhood where she lives. Juror 4 noted, "[t]hey certainly don't live around there, and they don't hang around there." Juror 5, who works in that area, agreed that this seemed strange because that area "mostly is Italian and White people. There really are no Black people around there." Because both defendants are African-American, Juror 4 feared the presence of two African-American men in her neighborhood may have had some kind of sinister connection to the trial."
Jurors 5 and 12  enouraged her to express her concerns - which she did to the Sheriff's officer who advised the judge Joseph Donohue.  After perfunctory questioning of jury number 4 the judge ruled on the motion to remove the juror, saying in open court in the presence of the jury:

I want to make one comment, and I've already ruled on this, but in terms of creating the record, there's been an expression by [Juror 4] -- and also [Juror 5] to a certain extent - - expressed some racial consciousness and potential racism by their comments. However, what they both said was that the circumstances were unusual, that the area in which they were, it would be unusual for someone who was Black to be in that area. I can't say -- I can't say that myself. I don't know whether any counsel can say it, but these individuals said that that was unusual. And [Juror 4] expressed some initial concerns with it. I don't think that that's even an expression of racism. [(Emphasis added).]
The Appellate Division harsh in its assessment of the judge:
These remarks coming from a sitting judge in a criminal trial are plainly inappropriate under any circumstances, but especially when they are uttered in a trial involving two African American defendants. A juror's expression of "racial consciousness and potential racism" must be immediately repudiated, and the juror must be removed from the jury. Thereafter, the trial judge must conduct a thorough, comprehensive, and probing investigation to determine what influence the juror's noxious sentiments had on other jurors. Here, the judge's voir dire of Jurors 3, 5, and 12 was completely inadequate and fell far short of what was required.
"When Juror 4 inferred a sinister conspiratorial purpose from a facially innocuous event, based solely on the race of the participants, she revealed a deeply rooted, latent racial bias that required her removal from the jury... Her initial instinctive, subliminal association of race with criminality or wrongdoing far trumped her subsequent assurances of impartiality."
Read more:

Sunday, August 30, 2015

Law, Naturally - New Rambler Review John Goldberg on Helmholz

Law, Naturally - New Rambler Review
For reasons beyond my current capacity to explain little heed is paid in the academy to theory's impact on practice; and little heed is paid in practice to theory.  But as John Goldberg shows lawyers have used Natural Law" theory to shape the law.  The idea that truth can be revealed by reason is a powerful one; muddied too often in recent times by positivism and cultural relativism.  Liberals have been particularly prone to dismissing natural law - seeing it as Catholic and therefore suspect.  But the tradition is much richer than that (not that there's anything wrong with being Catholic).
For me the notion persists that there are some fundamental ideas and values that arise necessarily from human society - from human nature.  Respect for each other seems tome to be an irreducible principle of justice. - gwc

by John C.P. Goldberg - Review of Natural Law in Court: A History of Legal Theory in Practice, by R. H. Helmholz
Harvard University Press, 2015

In its 5-4 decision in Alden v. Maine (1999), the Supreme Court held that the defendant state was immune from suit by employees seeking back pay under federal labor law. Writing for the majority, Justice Kennedy reasoned that the Framers of the Constitution did not mean to enable Congress to use its power over interstate commerce to abrogate states’ sovereign immunity. In dissent, Justice Souter accused the majority of erroneously attributing to the Framers a “natural law” understanding of sovereign immunity, according to which it was treated as “a universally applicable proposition discoverable by reason.” In reply, Justice Kennedy insisted that his opinion rested on an “appealto no higher authority” than the Constitutional text.

Evident in this exchange are three ideas about natural law. First, it is “universally applicable” across societies and “discoverable by reason.” Second, it possesses a “higher authority” than mere positive or enacted law. Third, it is not today recognized within our legal system as a legitimate, freestanding ground of judicial decision, which is why reliance upon it is to be disavowed.

In this compact but rich volume, the eminent legal historian Richard Helmholz invites us to look back to times and places, some not so long ago or far away, in which jurists were not so shy about invoking natural law. For each of three legal ‘theaters’—continental Europe from about 1500 to 1800, England during the same period, and antebellum America—he reviews teaching materials and records of court proceedings to give readers a sense of how natural law figured in legal practice.
A third reading of Helmholz’s study—one he seems reluctant to embrace—would take it to suggest that once we better understand what past jurists actually had in mind when they talked about natural law, we will recognize that (for better and worse) we continue to think about law similarly, even though we sometimes use different terminology. Consider in this regard the Supreme Court’s 1950 decision in Mullane v. Central Hanover Bank and Trust Co. It held unconstitutional a New York statute allowing trustees of common trusts to alert potential beneficiaries of trust settlements exclusively through notices published in newspapers. Said Justice Jackson for the Court: “Many controversies have raged about the cryptic and abstract words of the Due Process Clause but there can be no doubt that at a minimum they require that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case.” While Mullane rests most immediately on an interpretation of the Fourteenth Amendment’s Due Process Clause, its morally informed reading of that text seems very much of a piece with the medieval ‘notice’ cases that Helmholz describes and, more generally, with the methods of the jurists whom Helmholz so vividly brings to life.

Maybe we aren’t quite the natural law skeptics we think we are.

Deacons for Defense // Film Review

Pro-gun sentiment is often rooted in recreational hunting, or unlikely self-defense scenarios, or the even more unlikely self-defense against the government itself.   But for some there is a much deeper resonance: defense against the Ku Klux Klan and white supremacists.  The Deacons for Defense in Louisiana were such a group. - gwc
Deacons for Defense  
by Amin Sharif
The first time I heard about the Deacons for Defense was early June of 1965. There had been another murder down in the Deep South. This time it wasn't three civil rights workers in Mississippi who had been slain. This time the victim was a Black Deputy Sheriff and the place was Bogalusa, Louisiana. But there was something different going on in Bogalusa. A group of Black men had decided to stand up to the white terror. A group of Black men had decided to take on the Klu Klux Klan. These Black men called themselves the Deacons for Defense and Justice.
The Deacons were as mysterious as they were legendary for their courage. For they did in the Deep South what the Black Panther Party would later attempt in the West. The Deacons -- Black men -- had armed themselves against the terror of white racism. One must remember what these men were up against to understand what they did in Bogalusa. In the Deep South, a Black man could be lynched for not stepping into the gutter as a white man, woman or child passed him in the street.
The Jim Crow of the South held the entire Black population hostage to the whims of any white person. And then there was the Klan or the Nightriders, as some called them, dressed in sheets and gowns always ready to defend "white honor" by murder and terror. For a Black man to raise a hand to a white man under these conditions was an automatic death sentence. For a Black man to point a gun at a white man was an act of insanity. Now Showtime has brought the story of the Deacons for Defense to cable television. Starring Forrest Whitaker and the great Ossie Davis, this production is as true a dramatization as we can expect from a commercial undertaking.
The story of the Deacons is deftly told through the eyes of Marcus Clay played by Whitaker. Marcus Clay is a mill worker at the highly segregated plant that owns the town of Bogalusa. Owing his livelihood to the white folks at the plant, Marcus is no friend to the efforts that are erupting throughout the deep South to end segregation. He has grown up with white violence and wishes to keep it away from his family. But Marcus' dream of  living alongside of white violence is shattered when a friend is beaten for placing his name on a list reserved for white men at the plant where he works and when his daughter suffers the same fate during a civil rights march to desegregate the town. The final straw comes when, after attempting to save his daughter from her beating, he find himself taken out and beaten by the local police. Marcus Clay's answer to the violence visited upon friend and family is to form the Deacons for Defense.
The story continues in the expected manner. There are a series of victories and set backs for the Deacons. Houses are burned. White civil rights workers try unsuccessfully to turn the Deacons back towards Martin Luther King's technique of non-violence. Next, there is a dramatic showdown between the Deacons and the Klan. But despite a plot where all the moves of the players are predictable, the Deacons for Defense succeeds in gathering sympathy from its audience. And, if the history of the Deacons gets a little disjointed, not to worry. Showtime has smartly added a small documentary on the Deacons after the movie. Whatever is lost in the movie is more than covered in the documentary called "Defending the Deacons."  
Taken together, the movie and the documentary do more justice to the legend of the Deacons than harm. All in all, the Deacons for Defense (with the documentary) is well worth watching. 

China toughens laws, but reduces crimes subject to death: Xinhua - Channel NewsAsia

China toughens laws, but reduces crimes subject to death: Xinhua - Channel NewsAsia

China repealed the crime of sex with prostitutes who are underage and instead made it rape, a crime subject to harsher punishment, Xinhua said.

Previously under the law, people who had sex with prostitutes aged below 14 years old faced a maximum of 15 years in prison, according to the agency. It added that those convicted of raping a child may face the death sentence.

Prostitution is illegal in China but an estimated several million sex workers operate from establishments including karaoke bars, hair salons, saunas and massage parlours.

China's public security ministry ordered a nationwide crackdown on the sex trade last year following an expose of a city known for prostitution amid criticism that authorities long turned a blind eye.

The NPC also approved the removal of the death penalty for nine crimes, Xinhua said.

These include smuggling of weapons, ammunition, nuclear materials and counterfeit currency; the counterfeiting of currency; fraudulently raising funds; arranging for a person or forcing a person to carry out prostitution; the obstruction of duty of a police officer; and creating rumours during wartime to to mislead people.

Xinhua said that the maximum penalty for those crimes would become life in prison.

- AFP/ec

Saturday, August 29, 2015

Of Ferguson and Constitutional Theory // Mark Graber // Balkinization

Constitutional discourse today focuses on abstractions.  The Affordable Care Act is asserted to be an overreach because the "commerce clause" does not authorize the national government because "The individual mandate...does not regulate existing commercial activity. It instead compels individuals to become active in commerce by purchasing a product, on the ground that their failure to do so affects interstate commerce." (C.J. Roberts -NFIB v. Sebelius)
Same sex marriage must be recognized because it is a matter of "liberty" (Justice Kennedy - Obergefell v. Hodges).

But there is another way to approach the entire problem: how can we assure the health of our people?  Will we advance the "pursuit of happiness" by allowing people to bond in marriage regardless of sex?  That approach is a functional constitutionalism - not one that seeks to limit government.
The abstract approach leads those who write about the constitution to pay little heed to the question: how can we improve the lives of the people? Mark Graber addresses the problem. - gwc
Balkinization: Of Ferguson and Constitutional Theory
by Mark Graber

***Perhaps constitutional theory is partly returning to its late eighteenth century roots. A good deal of scholarship suggests that the main impetus for the Constitution of 1789 was a sense among elites that they were losing in state politics. Nationalizing politics would greatly improve the chance that rights elites believed were fundamental (contracts) would be protected while throwing obstacles in the paths of rights (binding instructions) less affluent Americans wanted protected. The Constitution of 1868 had a different premise. The persons responsible for the Fourteenth Amendment were far more concerned with constructing a constitutional politics that would protect persons of color than with determining the best interpretation of equal protection of the law, a matter on which they disagreed. If the citizens of Ferguson, Missouri are to be restored to their central place in American constitutionalism, we need to think more about the constitutional questions concerning how a constitutional order can be constructed that treats all persons with equal concern and respect and less about the interpretive questions historically at the margins of the constitutional enterprise.

Lawyers from left to right

Family Synod should include `sensus fidei' // National Catholic Reporter

It has often struck me that Catholic doctrine and American constitutional adjudication have a good deal in common. The hermeneutic - interpretation of the Gospels - is based on texts that contain both broad statements of equitable principles "love your neighbor, what you do for these the least of my brethren you do for me", parables, and a few commands.

Catholic doctrine is rooted in the text, the teachings of the Church and the experience of the faithful. Biblical command plays little role. Understandings change - and doctrine evolves by paying attention to the experience of the faithful.

So too has our constitution evolved. Equal protection in the original conception did not include women, and gays were not in anyone's mind. Now we consider the extension of such principles to women and gays to be pretty much undisputable.

The danger is that when there is a final authority - Pope or Supreme Court - the understanding can be frozen or reversed, the views of the people discarded. Popular opinion is not a command in law or theology but the impact of doctrine should never be ignored. It informs even where it does not command. - gwc
Synod members should include sensus fidei | National Catholic Reporter
Pope Francis has called for new ways for the journey of faith of the pilgrim people of God. By exercising the collegiality envisioned by the Second Vatican Council, he has encouraged the Synod of Bishops on the family to participate in open discussions on the various issues. As we await the second session of this synod, it seems particularly valuable to benefit from the 2014 document issued by the International Theological Commission, "Sensus Fidei in the Life of the Church."

As a retired pastor who was blessed with the opportunity to study John Henry Newman for a doctorate in theology at the Catholic University of Leuven, it was a pleasure to read his insights on the development of doctrine and the sense of the faithful, revived in our era by this Vatican commission. In this short article without footnotes, and with modest credentials, the best I can do is to offer some highlights from the commission's document and recommend that the synod participants become familiar with its profound theological perspective.

In our Catholic church, we believe in the indwelling of the Holy Spirit within all the baptized faithful. By the gift of the Holy Spirit, all of the baptized participate in the prophetic office of Jesus Christ. As a result, the faithful have an instinct for the truth of the Gospel that enables them to recognize and endorse authentic Christian doctrine and practice, and to reject what is false.

The Second Vatican Council strongly emphasized the importance of the sense of the faithful, especially in the Dogmatic Constitution on the Church. Although distinguishing between the teaching church (ecclesia docens) and the learning church (ecclesia discens), the council affirmed that all the baptized participate in their own proper way in the three offices of Christ -- as prophet, priest and king.

The council clearly taught that the laity are not merely passive recipients of what the hierarchy teaches and theologians explain; rather, they are living and active subjects within the church. All believers play a vital role in the articulation and development of the faith.

As our church moves through the challenges of history, we are confronted with new circumstances, with the progress of knowledge and culture. We have been asked to read the signs of the times, to interpret them in the light of the divine word and to discern how they may enable revealed truth itself to be "more deeply penetrated, better understood, and more deeply presented."

The sense of the faithful is not only reactive but also proactive and interactive as the church and all its members make their pilgrim way in history. The sensus fideiis therefore not only retrospective but also prospective, and both these aspects are highly important.

‘Give Us the Ballot,’ by Ari Berman - The New York Times

In Shelby County v. Holder the C.J. argues that the Voting Rights Act is no longer needed- so much has been accomplished.  Its strictures now unfairly burden the reformed southern states.  But, Berman and Rosen remind us, Roberts has long been motivated to gut the Act.  
Conservatives in the Reagan administration lobbied against the amendments, including John Roberts, then a 26-year-old special assistant to the attorney general, who wrote more than 25 memos opposing them. “An effects test would eventually lead to a quota system in all areas,” Roberts wrote. Nevertheless, the Senate and the House restored the effects test by a nearly unanimous vote, and President Ronald Reagan signed the amendments, which he followed with a reception attended by Coretta Scott King.
Roberts' elevation gave him the power, with four like-minded colleagues to accomplish what political considerations had prevented his master from accomplishing thirty years ago.   - gwc

‘Give Us the Ballot,’ by Ari Berman - The New York Times
Reviewed by Jeffrey Rosen

“Give Us the Ballot” is an engrossing narrative history rather than constitutional analysis. Berman does not explore why justices who are devoted to the original understanding of the Constitution have repeatedly voted to narrow the scope of the Voting Rights Act with the argument that the equal protection clause of the 14th Amendment is colorblind. (In fact, as Justice John M. Harlan observed in his 1964 dissent from one of the original Supreme Court decisions regarding “one man, one-vote,” the framers of the 14th Amendment believed that the equal protection clause did not regulate voting or apportionment at all.) Still, Berman vividly shows that the power to define the scope of voting rights in America has shifted from Congress to the courts, a result that would have surprised the Reconstruction-era framers.


The Modern Struggle for Voting Rights in America
By Ari Berman
372 pp. Farrar, Straus & Giroux. $28.

Owen Labrie of St. Paul’s School Is Found Not Guilty of Main Rape Charge - The New York Times

I am no longer expert in criminal law, particularly the law of sexual assault which is particularly fraught.  The American Law Institute's membership has been wrought with bitter debate about `affirmative consent'.   But surely anyone has the right to say No at any time - and it should be heeded.  The jury's compromise verdict does not seem unreasonable to me.  Owen Labrie is bound for jail instead of Harvard.  His behaviour was deplorable - on his own account.  I have some slight experience with men who aim to "score", etc.  The Senior Salute is a particularly noxious practice.  The Rector and Board President of St. Paul's School, in a statement that is respectful of the young woman, acknowledge that such a practice existed - but deny that it was long-standing.  Maybe.  But there seems little doubt that at this rich kids school there was an attitude toward women that is deeply offensive. - gwc
Owen Labrie of St. Paul’s School Is Found Not Guilty of Main Rape Charge - The New York Times
by Jess Bidgood

CONCORD, N.H. — The prep school graduate accused of raping a younger student at the elite St. Paul’s School dropped his head and sobbed for the first time since the start of his trial: He had been found not guilty on Friday of felony sexual assault charges, but was convicted of having sex with a girl who was below the age of consent.
The accuser sat in the front row, tightly flanked by her family, her father’s hand on her head, her mother’s arm around her shoulders. She cried, too, in the main hall of the drab courthouse here, before stepping out the back door.

So ended the trial of Owen Labrie, 19, and with it a rare exploration of the backslapping sexual culture among some students at one of the nation’s most exclusive boarding schools. Over nearly two weeks, jurors listened to prosecutors and defense lawyers ask witnesses about a custom called the “senior salute,” in which older students at St. Paul’s propositioned younger classmates for a last-chance encounter before graduation.

Friday, August 28, 2015

E-Competence? California Advises Attorneys on Requisite Competence in the Handling of E-Discovery | Legal Ethics in Motion

E-Competence? California Advises Attorneys on Requisite Competence in the Handling of E-Discovery | Legal Ethics in Motion
On June 30, 2015, the State Bar of California Standing Committee on Professional Responsibility and Conduct released Formal Opinion No. 2015-193 addressing an attorney’s ethical duties in the handling of the discovery of electronically stored information (“ESI”). ESI is information created, communicated, and stored on either computer hardware or software (i.e., emails, Word documents, videos, etc.). Given ESI’s pervasive presence in litigated matters, it is critical that attorneys understand electronic discovery so as to avoid potential ethical violations and exposure to unnecessary disputes.
The committee’s opinion focused its analysis around a detailed hypothetical that demonstrated the unfortunate, but relatable, missteps taken by an attorney that was familiar with discovery, but unfamiliar with electronic discovery. Consequently, and among other things, the attorney’s actions exposed him to various ethical violations. The committee specifically addressed Rules 3-110 and 3-100, the duties of competence and confidentiality, respectively. (Note: California has not adopted the ABA Model Rules of Professional Conduct; however, 3-110 and 3-100 generally echo the duties described in ABA Rules 1.1 and 1.6, versions of which of been adopted in all of the other states.)
With respect to the duty of competence, the committee broadly interpreted the existing language of the rule to include knowledge of electronic discovery. Depending on the case, the duty of competence may require a practitioner with a high level of technical knowledge and ability. If, however, the attorney lacks the requisite skillset, he has three available options: (1) acquire sufficient learning and skill before performance is required; (2) associate with or consult technical consultants or competent counsel; or (3) decline the client representation. Moreover, the committee counseled that if an attorney chooses the second option, the attorney is always responsible for and obligated to supervise outside counsel and consultants.
Additionally, an attorney has a fundamental duty to protect confidential communications between the attorney and client. Thus, an attorney’s failure to diligently monitor the production of ESI could result in both an ethical violation and a waiver of attorney-client privilege. An attorney dealing with electronic discovery must take action to review a client’s network, instruct and supervise the client’s disclosure, develop a narrow list of acceptable search terms, and review the retrieved data before it is ultimately disclosed.
Please click here to read the full opinion.

Thursday, August 27, 2015

Lawyers in cubicles - are law profs next? TaxProf Blog


Frankly, I think it makes sense.  Space is expensive.  There were reasons for the old style: confidentiality a prime factor.  But nobody talks on the phone anymore - thanks to smartphones.  And young lawyers rarely see clients.  But the collaboration argument?  I don't buy it.  For that you want a place to go and chat - an office.  Now as to law profs...please.  No.  - gwc
TaxProf Blog
by Paul Caron

Wall Street Journal Law Blog, Lawyer Cubicles Are Coming to New York:

Here at Law Blog, it’s not often we see a large law firm do something unprecedented when it comes to running its business. But we’re pretty sure Paul Hastings LLP is about to forge new ground when it moves its New York office next spring.

In its new midtown Manhattan space, junior lawyers won’t get the offices many dream of in law school. Instead, they’re getting a cubicle.

The move will only affect first- and second-year associates, who will be seated in pods of 12 in prime window-lined real estate on the ends of floors. For now, the firm is calling them the “end zones.”

“I really do believe first- and second-years will benefit from true collaboration—they feed off each other,” said Barry Brooks, the chair of the firm’s New York office. “I don’t feel bad about it.” ...

Architecture firms have long been pushing law firms to make radical changes, like using open space. But firms have been reticent to veer from tradition.

“It’s going to be pioneering,” said Steven Martin, a principal at Gensler, the architecture firm that designed the office. Mr. Martin notes that in London, firms routinely put attorneys, including partners, in open space. “That’s just been a cultural difference between London and the U.S.,” he said. ...

We’ll be watching to see if other law firms begin to embrace the lawyer cubicle. Ken Rapp, a vice chairman at real estate firm CBRE who’s worked with Paul Hastings and other law firms, put it best: “The way it works in the legal industry, one or two do something, then the rest tend to follow after that.”

Wednesday, August 26, 2015

Economist's View: 'John Kenneth Galbraith on Writing, Inspiration, and Simplicity'

Economist's View: 'John Kenneth Galbraith on Writing, Inspiration, and Simplicity'

Tim Taylor lauds John Kenneth Galbraith as one of the finest writers on economics and social policy. JFK's Ambassador to India, his liberalism - particular in The New Industrial State, influenced me. Key to that was his lucidity as a writer. - gwc

John Kenneth Galbraith on Writing, Inspiration, and Simplicity: John Kenneth Galbraith (1908-2006) was trained as an economist, but in books like The Affluent Society (1958) and The New Industrial State(1967), his found his metier as a social critic. In these books and voluminous other writings, Galbraith didn't propose well-articulated economic theories, and carry out systematic empirical tests, but instead offered big-picture perspectives of the economy and society of his time. His policy advice was grindingly predictable: big and bigger doses of progressive liberalism, what he sometimes called "new socialism."

"All writers know that on some golden mornings they are touched by the wand — are on intimate terms with poetry and cosmic truth. I have experienced those moments myself. Their lesson is simple: It's a total illusion. And the danger in the illusion is that you will wait for those moments. Such is the horror of having to face the typewriter that you will spend all your time waiting. I am persuaded that most writers, like most shoemakers, are about as good one day as the next (a point which Trollope made), hangovers apart. The difference is the result of euphoria, alcohol, or imagination. The meaning is that one had better go to his or her typewriter every morning and stay there regardless of the seeming result. It will be much the same. ..."

"My advice to those eager students in California would be, "Do not wait for the golden moment. It may well be worse." I would also warn against the flocking tendency of writers and its use as a cover for idleness. It helps greatly in the avoidance of work to be in the company of others who are also waiting for the golden moment. The best place to write is by yourself, because writing becomes an escape from the terrible boredom of your own personality. It's the reason that for years I've favored Switzerland, where I look at the telephone and yearn to hear it ring. ..."

Monday, August 24, 2015

Deficits will be the ruin of us, driving up interest rates, bankrupting us

Everybody "knows" that.  It's what J.K. Galbraith called crackpot realism.
To wit: Interest rates over the past ten years. - gwc
10-year Treasury

Doubling Down on Racial Discrimination: The Racially Disparate Impacts of Crimmigration Law | Casetext

Prosecutorial discretion is a principal driver of disparities in law enforcement in the U.S.  But behind that is often police discretionary enforcement.  the U.S. Supreme Court has virtually blocked challenges based on racial or ethnic disparate impact absent rigorous proof of discriminatory intent.   Since Washington v. Davis(1976) more than "volition" or "awareness of consequences" is required to prove purposeful discrimination.
Dean Johnson therefore sees little reason to expect courts to address the racially disparate impacts of deportation enforcement which is driven for many reasons by the ordinary criminal justice process.  Legislators are more likely to be responsive, he suggests.  Is it unrealistic to hope that prosecutors and defenders could be drivers of a campaign to improve our record on the principle of treating like cases alike? Is RPC 8.4's command against "conduct prejudicial to the administration of justice"  a tool against discrimination?  Or is it limited to purposeful "bias" in the Washington v. Davis sense?  - gwc 
Doubling Down on Racial Discrimination: The Racially Disparate Impacts of Crimmigration Law | Casetext
by Kevin Johnson (Dean, UC Davis Law School)
The U.S. immigration removal system targets noncitizens who are involved in criminal activity.  Relying on state and local police action, which many claim is racially biased due to such practices as racial profiling, the U.S. government removes nearly 400,000 noncitizens a year, with more than 95 percent from Mexico and Latin America (even though the overall immigrant population is much more diverse).  State and local governments have resisted some of the federal government’s aggressive removal efforts through “sanctuary laws,” which are designed to build the trust in immigrant communities necessary for effective law enforcement by local police.  Reforms in the immigration laws are necessary to reduce the racially disparate impacts of reliance on the criminal justice system for immigration removals. 

The Modern Immigration Removal System

The Obama administration’s signature immigration enforcement program, Secure Communities, proved to be highly efficient at facilitating removals of large numbers of noncitizens, including lawful permanent residents as well as undocumented immigrants, arrested for minor, as well as more serious, crimes.  Indeed, the program was so effective that removals spiked to record highs in the neighborhood of 400,000 noncitizens a year.  
Total removals of noncitizens by the U.S. government reached an all-time high of 438,421 in 2013:  “Mexican nationals accounted for 72% of all aliens removed in 2013.  The next leading countries were Guatemala (11 percent), Honduras (8.3 percent), and El Salvador (4.7 percent).  These four countries accounted for 96 percent of all removals in 2012.” Dep’t of Homeland Security, Office of Immigration Statistics, Immigration Enforcement Actions:  2013, at 6 (Sept. 2014) (emphasis added). From 2003-13, men accounted for 91% of all deportees.  These statistics are consistent with an immigration removal system that relies primarily on the criminal justice system and its racial profiling of Latino males by state and local police.
Simultaneous with ending Secure Communities, the Obama Administration announced the creation of the “Priority Enforcement Program” (PEP) with the stated intent of re-focusing removal efforts on serious criminal offenders; PEP changed federal policy to restrict requests for immigration “holds” to noncitizens actually convicted of crimes rather than merely arrested for them.  Memorandum dated November 20, 2014 to Thomas S. Winkowski, Acting Director, U.S. Immigration and Customs Enforcement, Megan Mack, Officer Office of Civil Rights and Civil Liberties, Philip A. McNamara, Assistant Secretary for Intergovernmental Affairs, from Jeh Charles Johnson, Secretary, U.S. Department of Homeland Security, at 2-3 PEP continues to target “criminal aliens” for removal.
One commentator aptly summarized contemporary developments in American immigration enforcement as in effect creating “a criminal removal system.”  Ingrid V. Eagly, Criminal Justice for Noncitizens:  An Analysis of Variation in Local Enforcement, 88 NYU L. Rev. 1126, 1128 (2013). Police in traffic stops and other law enforcement activities rely on race.  And, because immigration enforcement today relies increasingly on state and local criminal arrests, removals have fallen overwhelmingly on Latina/o immigrants. 

Sunday, August 23, 2015

Are Lawyers Getting Dumber? //Bloomberg News

Are Lawyers Getting Dumber? - Bloomberg Business

by Natalie Kitroeff

Last August, the tens of thousands of answer sheets from the bar exam started to stream into the National Conference of Bar Examiners. The initial results were so glaringly bad that staffers raced to tell their boss, Erica Moeser. In most states, the exam spans two days: The first is devoted to six hours of writing, and the second day brings six hours of multiple-choice questions. The NCBE, a nonprofit in Madison, Wis., creates and scores the multiple-choice part of the test, administered in every state but Louisiana. Those two days of bubble-filling and essay-scribbling are extremely stressful. For people who just spent three years studying the intricacies of the law, with the expectation that their $120,000 in tuition would translate into a bright white-collar future, failure can wreak emotional carnage. It can cost more than $800 to take the exam, and bombing the first time can mean losing a law firm job.
When he saw the abysmal returns, Mark Albanese, director of testing and research at the NCBE, scrambled to check his staff’s work. Once he and Moeser were confident the test had been fairly scored, they began reporting the numbers to state officials, who released their results to the public over the course of several weeks.
In Idaho, bar pass rates dropped 15 percentage points, from 80 percent to 65 percent. In Delaware, Iowa, Minnesota, Oregon, Tennessee, and Texas, scores dropped 9 percentage points or more. By the time all the states published their numbers, it was clear that the July exam had been a disaster everywhere. Scores on the multiple-choice part of the test registered their largest single-year drop in the four-decade history of the test.
“It was tremendously embarrassing,” says Matt Aksamit, a graduate of Creighton University School of Law, who failed Nebraska’s July bar exam last year. “I think a lot of people can relate to what it’s like to work hard for something and fall short of what you want.” (Aksamit took it again in February and passed.)
Panic swept the bottom half of American law schools, all of which are ranked partly on the basis of their ability to get their graduates into the profession. Moeser sent a letter to law school deans. She outlined future changes to the exam and how to prepare for them. Then she made a hard turn to the July exam. “The group that sat in July 2014 was less able than the group that sat in July 2013,” she wrote. It’s not us, Moeser was essentially saying. It’s you.
“Her response was the height of arrogance,” says Nick Allard, the dean of Brooklyn Law School. “That statement was so demonstrably false, so corrosive.” Allard wrote to Moeser in November, demanding that she apologize to law grads, calling her letter “offensive” and saying that the test and her views on the people who took it were “matters of national concern.” Two weeks later, a group of 79 deans, mostly from bottom-tier schools, sent a letter asking for an investigation to determine “the integrity and fairness of the July 2014 exam.”

Joe Conason: Clinton Emails: Is This Watergate? Or Just Another Whitewater? - Truthdig

Joe Conason: Clinton Emails: Is This Watergate? Or Just Another Whitewater? - Truthdig

...Obscured by sensational and often stupid media coverage, the fundamental facts are simple. There is no evidence that Hillary Clinton violated any law in her use of a private email server, however badly advised. There is no evidence that she knowingly sent any previously classified information to anyone at any time. There is no evidence that any national security breach occurred in her email system. And there is no statute under which she can be held liable for sending information that was retroactively classified, many months after she sent it, when the State Department was reviewing her emails for public release.

The true scandal is the Republican attempt to invent a scandal that will derail the Democratic presidential candidate they fear most, by misusing the oversight powers of Congress—and the eagerness of major media outlets, including the nation’s most important newspaper, to collude in that scheme.

Ohio Ethics Board Says Judges May Not Refuse to Perform Same Sex Marriages

Judicial Performance of Civil Marriages of Same-Sex Couples
Opinion 2015-1
Ohio Supreme Court Board of Professional Conduct

The Supremc Court of Ohio's Board of Professional Conduct has issued advisory opinion 2015-1.  The Board concludes that in its opinion "A judge who exercises the authority to perform civil marriages may not refuse to perform same-sex marriages while continuing to perform opposite-sex marriages. A judge may not decline to perform all marriages in order to avoid marrying same-sex couples based on his or her personal, moral, or religious beliefs. "
In the opinion of the Board the oath of office to uphold the state and federal constitutions, and the Code of Judicial Conduct's injunction to comply with the law (Jud. Cond 1.1) )act fairly and impartially (Jud. Cond. R. 2.2), and act without "bias of prejudice (Jud. Con. 2.3) compel the conclusion that a judge may not refuse to perform same sex marriages while performing heterosexual marriages.

One conservative Catholic, Richmond law prof Kevin C. Walsh, laments at Mirror of Justice blog that the opinion turns the judicial authority to perform marriages into a mandate.  He further objects that the Ohio Board's opinion "gets worse when it goes far beyond the holding of Obergefell in concluding, for example, that "[a] judge may reasonably be perceived as having a personal bias or prejudice based on sexual orientation if he or she elects to perform opposite-sex marriages, but declines to perform same-sex marriages."
Walsh continues, saying
"The opinion also reflects ignorance of the actual role of public opinion in the creation of new constitutional law these days when it brings in the requirement that judges "apply the law without regard to whether the law is 'popular or unpopular with the public, the media, government officials, or the judge’s friends or family.'" Can anyone say with a straight face that Justice Kennedy, the author of Obergefell v. Hodges, himself applied the law without regard to all these factors? Aside from judges' personal, moral, or religious beliefs about marriage, one good legal reason to avoid extending Obergefell beyond its holding is precisely to limit the damage done to the law when judges shape it to better conform with changed public opinion, as Justice Kennedy and his colleagues in the majority did in Obergefell."
 Walsh's lambastes would be well founded, in my view, if a judge were asked to bless a same sex union contrary to her belief that such conduct is sinful.  But of course the Board said no such thing.  At the root of Walsh and like-minded critics view is a confusion of the sacred and the secular.  The performance of a marriage is a ministerial, not a Ministerial function.  Judges like other public employees cannot pick and choose among favorites based on legally irrelevant criteria.  If the issue were granting permits to march  based on the religious or anti-religious message of the march Walsh, et al. would certainly agree that a judge cannot pick and choose.  But marriage evokes a different set of emotions and Walsh loses sight of the basic point.- gwc

Breaking the Teachers Unions - Scott Walker’s Real Legacy by Donald F. Kettl | The Washington Monthly

Union Representation of Government Employees 2004 - 2014

Republicans hate government employee unions as an article of faith.  Its easy to see why: they have little use for government (except for cops and soldiers and  ethanol for midwest farmers). More pay for teachers means higher taxes.  No Scandinavian high paid professional teachers for them.  Teachers don't  teach - they sit around the teachers lounges complaining (Ohio moderate John Kasich); so getting rid of the complainers' unions would be  "nirvana" (Chris Christie).
So what has Gov. Scott Walker's union busting accomplished? Made things worse for those to whom Wisconsin  entrusts its children:
In a fascinating 2012 paper in ILR Review, three professors of business, David Lewin of UCLA, Jeffrey Keefe of Rutgers, and Thomas A. Kochan of MIT, reviewed that literature and conducted their own analysis of data sets on wages and benefits. On average, counting wages as well as retirement and other benefits, they found that, compared to private-sector employees, state and local government employees are undercompensated by 5.6 percent, with the gap smaller for local government employees (4.1 percent) than for state employees (8.3 percent).
The authors also confirmed a connection, observed in many other studies, between education and pay. Put simply, the higher the education levels of public servants, the less they are paid relative to what people with the same levels of education earn in the private sector. On the other hand, those government workers with lower levels of education tend to be paid the same or more than they would make in the private sector.
Scott Walker’s Real Legacy by Donald F. Kettl | The Washington Monthly

This past February, at the Conservative Political Action Conference (CPAC) outside Washington, D.C., Wisconsin Governor Scott Walker rolled up his sleeves, clipped on a lavalier microphone, and without the aid of a teleprompter gave the speech of his life. He emerged from that early GOP cattle call as a front-runner for his party’s nomination for president. Numerous polls this spring placed him several points ahead of former Florida Governor Jeb Bush, the preferred candidate of the Republican establishment, in Iowa and New Hampshire. Those same polls showed him with an even more substantial lead over movement conservative favorites such as Ted Cruz, Rand Paul, and Mike Huckabee. In late April, the Koch brothers hinted that Walker would be the likely recipient of the nearly $900 million they plan to spend on the 2016 election cycle.

The source of Walker’s appeal—his singular calling card, in fact—is not hard to identify. In 2011, the governor signed legislation stripping most of Wisconsin’s public-sector unions of their rights to collective bargaining and to require dues from members, essentially busting those unions. He went on to survive a bitter 2012 recall effort backed by national unions and to win reelection in 2014 in a state Barack Obama won in 2012. He then signed “right to work” legislation that massively undercut the state’s dwindling private-sector unions, too. In his twenty-minute CPAC speech, Walker referred to his battles with labor six times directly and as many times indirectly. It is the core of his message.

It is hard to exaggerate the attractiveness of that message to Republican voters. Back in the day, progressive Republicans like Wisconsin’s own Senator and Governor Robert La Follette championed the labor movement, but today’s GOP is overwhelmingly hostile to unions. Only 44 percent of moderate-to-liberal Republicans, and 23 percent of conservative Republicans, have a favorable view of labor unions, according to the Pew Research Center. By contrast, 70 percent of moderate-to-conservative Democrats and 80 percent of liberal Democrats rate unions favorably. Union support is one of the biggest wedge issues.

Where’s the Gaza housing boom? | Gisha

About half of the materials went towards Qatar-funded projects, many of which began before the war. Photo: Eman Mohammed
Where's the Gaza housing boom? | Gisha  report on the Gaza Reconstruction Mechanism
Gisha is an Israeli not-for-profit organization, founded in 2005, whose goal is to protect the freedom of movement of Palestinians, especially Gaza residents. Gisha promotes rights guaranteed by international and Israeli law.

On June 24, 2015, Palestinian Housing Minster, Mufid Al-Husayneh, announced the beginning of a new phase in Gaza’s reconstruction – the rebuilding of homes destroyed during Operation Protective Edge. Ten months after the fighting ended, despite massive destruction and international mobilization, Gaza took its first step toward rebuilding the first out of thousands of homes that were completely destroyed. What took so long?
The Gaza Reconstruction Mechanism

Prior to Operation Protective Edge, Israel imposed severe restrictions on the sale of construction materials to Gaza, arguing that these were “dual use” materials, meaning that they could be used for both civilian and military purposes (see box on chronology of restrictions). The main argument was that Hamas might use construction materials purchased in Israel to build bunkers and since late 2013, that materials could be used to build tunnels for the purpose of launching attacks on Israeli territory.

Gisha has and continues to object to the definition of a basic civilian commodity such as construction materials as “dual use”, thus paving the way for blanket bans, especially when considering the fact that the ban has not proven effective in preventing tunnel building. The restrictions, coupled with the closure of most smuggling tunnels out of Egypt, did play a role in the unemployment rate in Gaza’s spiking from 27.9% in the second quarter of 2013 to 40.8% in the first quarter of 2014. The construction sector, which contributed 17% of Gaza’s GDP in the second half of 2013, before the closure of the Gaza-Egypt tunnels, and provided jobs to more than 24,000 individuals in mid-2013, has since collapsed almost completely. True to the second quarter of 2015, only 4.2% of employed workers in Gaza, or about 11,000 people, are employed in the construction sector. The unemployment rate currently stands at 41.5%.

Friday, August 21, 2015

A More Affordable Care Act | The Incidental Economist

A More Affordable Care Act | The Incidental Economist
by Andrew Sprung

Review: ObamaCare is a Great Mess: A View of the Affordable Care Act Without Partisan Blinders & How to Fix It. By Jed Graham. Amazon, June 2015

Those who have closely followed the drama of Affordable Care Act implementation as it’s unfolded in the media may be familiar with the sharp criticisms of Jed Graham, a reporter at Investor’s Business Daily. Given the title of Graham’s e-book assessing the law, ObamaCare is a Great Mess, a sometime reader of Graham’s articles might assume that he’s one of the ACA’s many implacable ideological opponents. That would be to ignore the subtitle, A View of the Affordable Care Act Without Partisan Blinders & How to Fix It, as well as its substantive criticisms and recommendations.

Graham identifies the law’s shortcomings from an essentially progressive perspective, highlighting what he presents as the regressive impact of its mandates and the limited affordability of its offerings for many buyers. “The heart of the ACA is basically sound,” he writes. “The goal of reform should be to unclog the arteries and let the heart do its job.”

The artery blockages Graham alleges include the following:
The ACA subsidy structure renders coverage genuinely affordable only for insurance seekers with incomes up to about 150% of the Federal Poverty Level, or 200% FPL at best. Those at higher income levels are voting with their feet, forgoing marketplace offerings.
For too many buyers, the only premiums that look affordable are those charged for the lowest-tier bronze plans — yet high deductibles and cost-sharing render these plans close to useless for most low-income buyers.
The ACA’s limited age-rating, allowing insurers to charge the oldest customers three times as much as the youngest rather than the pre-ACA industry standard of 4-to-1, renders coverage unaffordable to too many young adults and hence is producing risk pools that are too old and sick.
The high price of unsubsidized insurance renders coverage unaffordable for many prospective buyers — older ones in particular — whose incomes are modestly above the subsidy threshold.
The tax penalty for those who forgo coverage is unduly harsh for those faced with the unaffordable-silver-vs. unusable-bronze choice.

His “sound heart” avowal notwithstanding, Graham views the ACA’s somewhat spotty successes to date through a resolutely glass-half-empty prism. The core problem he identifies — the marginal affordability of ACA private plans offerings for many of the uninsured — is real. But he tends to downplay offsetting facts and factors — for example, that more than three quarters of buyers who are eligible for the Cost Sharing Reduction (CSR) subsidies that are available only with silver plans do in fact choose silver, or that large percentages of the still-uninsured who are eligible for subsidies remain unaware of the help available.