Monday, September 28, 2015

Florida Supreme Court adopts Bar Rules defining retainer, flat fee and advance fees and clarifying deposits of fees | Lawyer Ethics Alert Blogs

Florida Supreme Court adopts Bar Rules defining retainer, flat fee and advance fees and clarifying deposits of fees | Lawyer Ethics Alert Blogs
Hello and welcome to this Ethics Alert which will discuss the recent opinion of the Supreme Court of Florida which adopted Bar Rules which define retainer, flat fee and advance fees and clarifying deposit of fees.  The opinion is In Re: Amendments to Rules Regulating The Florida Bar 4-1.5—Fees and Costs for Legal Services, No. SC14-2112 (September 17, 2015) and the opinion is HERE:  The amendments will become effective on October 1, 2015.
The opinion adopted amendments filed by The Florida Bar adding subdivision (2) to Florida Bar Rule 4-1.5, which defines the terms retainer, flat fee and advance fee.  The amendment also adds language to the Comment under “Terms of payment” stating that nonrefundable flat fees and nonrefundable retainers should not be deposited into the lawyer’s trust account; however, advance fees must be held in trust until earned.  The Comment also states that nonrefundable fees can still be excessive.
The amendment also moves the language in the Comment regarding contingent fees in criminal and domestic relations cases under the header “Prohibited contingent fees.”
Bottom line: these amendments to Rule 4-1.6 resulted from recommendations made by the ABA Ethics Commission 20/20.  As I pointed out in a previous Ethics Alert, the current amendments were drafted after an earlier attempt by The Florida Bar to place definitions in the Comment to Rule 4-1.5 was rejected by the Florida Supreme Court in an opinion stating that any definitions should be in the rule.
Be careful out there.
Joseph A. Corsmeier, Esquire

Pope's model of church one of transformation | National Catholic Reporter

In his little noted address to 300 bishops Pope Francis summed up his approach, one which the later Cardinal Joseph Bernardin called the "seamless ethic of life".   He has not challenged any doctrines or dogma.  But he has changed the tone.  For decades the message from U.S. Catholic Bishops has been that the only thing they really care about is abortion, and stopping gay marriage.  They have cared less about the victims of sexual misconduct.  Their progressive messages about immigrants, the poor, and peace have had a sort of footnote feel: not because the Church has not served the poor - it has - but because the passion was on the culture war issues like refusing Communion to Catholic politicians who departed from the Church on abortion rights.  Francis has made clear on his U.S. trip that his view of the gospel is that justice issues are on the top of his list. - gwc
San Diego bishop: Pope's model of church one of transformation | National Catholic Reporter

by Tom Roberts

“The innocent victim of abortion, children who die of hunger or from bombings, immigrants who drown in the search for a better tomorrow, the elderly or the sick who are considered a burden, the victims of terrorism, wars, violence and drug trafficking, the environment devastated by man’s predatory relationship with nature – at stake in all of this is the gift of God, of which we are noble stewards but not masters.”

“I believe what he is telling us,” said McElroy, “is that our notion of the life issues has been impoverished and too truncated. What we’ve done is place them in two hermetically sealed boxes,” one labeled dignity issues and the other life issues.

“He’s saying all of them are life issues,” said McElroy, that economic matters and poverty and the environment are all life issues as well as dignity issues.

The Next Justices | The Weekly Standard

Two years ago at a Fordham symposium on "Originalism" everyone acted like  Georgetown Law Prof Randy Barnett was a respectable thinker.  But respectable and responsible are not synonyms.  Barnett was the author of the theory that Congress could not compel people to buy health insurance.  That would be tyranny - to compel people to "engage in commerce".  That off the wall idea stuck to the walls of the Supreme Court.  Only C.J. John Roberts' vote to recognize the penalty as a tax saved the Affordable Care Act so that millions of people got the health insurance Congress had provided before the Republican takeover.

Now in a candid article Barnett is plain: the "judicial restraint"  that was the right's battle cry for years is now outmoded.  Go for activism, is the blunt advice of the influential conservative activist,  - gwc
The Next Justces | The Weekly Standard
by Josh Blackman and Randy E.Barnett

Presidential candidates should reject the vapid labels of “restraint” and “legislating from the bench” and focus instead on what a prospective nominee’s proven track record and paper trail (see above) say about his or her constitutional philosophy. The heart of the inquiry should be whether the nominee is willing to engage and enforce the Constitution against the other branches, not whether they can parrot clichés about “strict constructionism” or “calling balls and strikes” during a confirmation hearing.

Why The Most Urgent Civil Rights Cause Of Our Time Is The Supreme Court Itself

Why The Most Urgent Civil Rights Cause Of Our Time Is The Supreme Court Itself

The stakes are high. On non-controversial cases, or cases where the ideological stakes are low, the Justices often agree and are sometimes unanimous. In such cases, the Justices act much like lower court judges do, applying precedents, text, history, and a range of interpretative tools to decide cases. In the most controversial cases, however—those involving issues such as gun rights, affirmative action, abortion, money in politics, privacy, and federal power—the value judgments and ideology of the Supreme Court Justices, and increasingly the party affiliation of the president appointing them, are good predictors of each Justice’s vote.
What happens when Kennedy and the other older Justices leave, potentially shifting the balance of power? Under a more conservative Supreme Court, abortion could become all but impossible to obtain, at least in red states. More reasonable gun control laws could fall to Second Amendment challenges, and the Environmental Protection Agency’s power to protect our air and water further diminished. The Court could allow the wealthy to give $1 million contributions or more directly to candidates. It could declare unconstitutional more affirmative action plans and voting rights protections. Congress’s power to combat climate change could be undermined, unions deprived of power, and consumer protections further gutted.
Keep reading

Thursday, September 24, 2015

Fordham Rescinds Cosby Honorary Degree

September 24, 2015 | 1 p.m.

In 2001, Fordham University presented comedian and actor Bill Cosby with an honorary doctor of fine arts degree, not least because of the significant role he played in breaking the color barrier in American television and popular culture, and his position as an inspirational figure for millions of African Americans. At the time, there was no public awareness of the allegations of rape against him.

Today Joseph M. McShane, SJ, president of Fordham, put before the University Board of Trustees a motion to rescind Mr. Cosby’s honorary degree. The trustees voted unanimously to do so, officially rescinding Mr. Cosby’s Fordham degree. The University has taken this extraordinary step in light of Mr. Cosby’s now-public court depositions that confirm many of the allegations made against him by numerous women.

Fordham has never before rescinded an honorary degree. A recipient's actions would have to be both unambiguously dishonorable and have a deep impact. By his own admission, Mr. Cosby’s sexual exploitation of women was premeditated and ongoing. Equally appalling is his longtime strategy of denigrating the reputations of women who accused him of such actions.

That Mr. Cosby was willing to drug and rape women for his sexual gratification, and further damage those same women's reputations and careers to obscure his guilt, hurt not only his victims, but all women, and is beyond the pale.

As a Jesuit university, Fordham could no longer stand behind the degree it had bestowed upon Mr. Cosby, hence this unprecedented action.

When Popes Confront the Political World

When Popes Confront the Political World
Pope Francis spoke as an orthodox Catholic - he is for compassion, for the poor, immigrants, the disabled, and the unborn.  He will likely persuade no one but will inspire all because each can take his or her own message from the carefully crafted remarks. James Carroll's father was the first director of the NSA.  His father - like all in Congress today - was a "realist".  His conventional wisdom played a major role in driving us into the nightmare of Vietnam - a nightmare principally because men like his father "knew" that the Pope was speaking of ideals - not actuality. - gwc

When Popes Confront the Political World

Wednesday, September 23, 2015

No. Sorry. You're Not a 'Constitutional Conservative'

The Constitution does not mean whatever you wish it to mean.  `Strict construction' does not yield a solution - because no strict command can be found in words like "equal protection" or "due process of law".  Even Antonin Scalia under pressure retreated to "original public meaning", admitting that the words alone don't suffice.
Today's conservative view is that weak federal government is what the constitution requires.   But as Josh Marshall (a trained historian) explains below  Alexander Hamilton and James Madison saw weak states as the problem and designed a strong federal government - while mollifying critics with reassuring rhetoric in the op-ed pieces now known as the Federalist Papers.
I first grasped this not in grad school or law school but twenty years later when I read James Madison's Notes of the Constituional Convention 1787.  It is plain there that Madison sought a strong national government.  Hamilton then devised the key strategy for building that government: adopting the revolutionary war debts of the states and promising full payment to those who held the unpaid notes.  National debt thus bound the moneyed classes to the new federal government - as it does today.  If you have an FHA-insured mortgage, savings in US Treasury bonds, an FDIC-insured savings account, Social Security benefits, or Medicare you are similarly bound to a strong federal government. The government's obligations are to its citizens.  If you want those guarantees you need a strong, not an emaciated, revenue starved government. - gwc
No. Sorry. You're Not a 'Constitutional Conservative'
by Josh Marshall // Talking Points Memo

***[James Madison and Alexander Hamilton's] central belief was that localism and a weak national government would prevent the United States from ever achieving greatness among the states of the world and condemn it to being the plaything or pawn of the great powers of the day. State governments, far from being the anchors or liberty or legitimacy, were obstacles to progress on almost every front. And a central aim of the constitutional project was, again, to bring the states to heel.

To be clear, it's not that Hamilton and Madison were liberals by any reasonable modern definition. In fact, in the final years of his life, Hamilton made what was probably the first effort in American history to create a political party based on the defense of Christianity - in addition to the Constitution. But in trying to create a strong state - stronger in key ways than many of us today would like - they were the polar opposites of today's Tea Partiers.

In fact, it gets even worse.

One of Hamilton's (and at least very early on Madison's) core ideas was to use a national debt (and a central bank) to bind the men of wealth to the embryonic state. This was the thought behind Hamilton's ingenious logic to have the federal government assume the revolutionary debts of the states. Not only was this a necessary inducement to get the states to ratify the Constitution. It was, as Hamilton realized, a positive good in itself.

By investing the country's elites, the men of wealth as they were then called, in the future of the federal state (both literally and metaphorically), they could ensure its survival and growth. The wealthy and powerful wouldn't conspire against the state if they were the beneficiaries of the state's debt obligations. Both men looked to the example of Great Britain and how it had used its national debt to create the first modern fiscal state - with an ability to borrow, tax and spend in ways that no other state of the day could.

The brilliance of the effort was that they realized that creating a strong state required strong protections to harness and contain the state's power. That's where Hamilton needed Madison because it was a concern the former was not nearly as sensitive to as the latter. But it was almost entirely - and rightly - the rights of individuals that he was concerned with. The ratification process also played a key role here - in pushing for an explicit list of protections. It was a push that Madison fully embraced and one to which the moderate anti-Federalists and their intellectual descendants can point to show they ended up playing a key, formative role in the process.

Tuesday, September 22, 2015

A "stamp of animus"? Plaintiffs in Miller v. Davis ask court to order Deputy Clerks to issue unadulterated marriage licenses //Balkinization

Balkinization: A "stamp of animus"? Plaintiffs in <i>Miller v. Davis</i> ask court to order Deputy Clerks to issue unadulterated marriage licenses

by Marty Lederman

The plaintiffs in the Kim Davis case have now made a motion to Judge Bunning to require the Deputy Clerks in Rowan County to go back to issuing marriage licenses in the form that Deputy Clerk Mason was issuing while Clerk Kim Davis was in federal custody--rather than the radically adulterated form that Davis directed Mason to issue once she returned to work. (For much more on the machinations that led to this motion, and the differences between the two marriage license forms, see my post from Saturday.)

The plaintiffs are also asking the judge to require the Deputy Clerks to reissue, in proper (i.e., pre-Sept. 14) form, any licenses that they issued over the past week, and to specifically order Kim Davis not to interfere with the Deputies' issuance of licenses. For the time being they are not asking the judge to hold Davis in contempt of his orders; but they are asking the judge to put Davis on notice that any violation of the new order--that is, any interference on her part--"will result in civil sanctions, including but not limited to (a) the placement of the Rowan County Clerk’s Office into a receivership for the limited purposes of issuing marriage licenses, and (b) the imposition of civil monetary fines as appropriate and necessary to coerce Davis’ compliance with this Court’s Order."

What is the ground for plaintiffs' complaint about the Davis-prescribed, adulterated form of marriage licenses? They do not invoke the Fourteenth Amendment in so many words but, as I read it, they are alleging that the use of the altered forms violates their rights under the Fourteenth Amendment in two respects:

Monday, September 21, 2015

Protect Lawyers' Rights: China's Supreme Court, Prosecutors, Public Safety and State Security Bureaus

Some counsel that it is pointless to petition the Communist Party leaders of China. Others are overly sensitive such as the American Bar Association which tepidly commented on detentions and arrests of lawyers for disfavored groups. But in a sign that China's leaders do hear protests from abroad,  just days before the arrival in the U.S. of President Xi Jin Ping, China's Supreme Court, Prosecutor, Public and State Security bureaus issued a joint "regulation" 规定 on protecting lawyers' freedom of advocacy. It begins with a broad command to courts, prosecutors, police, state security bureaus, and legal administrators 【 司法行政机关】: Article 2 "Do not obstruct a lawyer's legal advocacy or representation of others, and do not infringe on a lawyer's legal rights." "第二条:。。。不得阻碍律师依法履行辩护、代理职责,不得侵害律师合法权利."

The Committee to Support Chinese Lawyers may find tools here to advocate for those whose rights they champion - to turn fine words into action. - gwc

最新:五部委关于依法保障律师执业权利规定 (全文及7大权威解读)|法客帝国

Legal Implications of the Iran Deal on U.S. and Foreign Businesses | New York Law Journal

Legal Implications of the Iran Deal on U.S. and Foreign Businesses | New York Law Journal
by Maryam Jazini Dorcheh

With the ending on Sept. 17, 2015, of the congressional review period for the historic accord reached between Iran and the E3/EU+ 31 countries (the Joint Comprehensive Plan of Action or JCPOA), which restricts Iran's nuclear program in return for the easing of nuclear-related sanctions, U.S. and foreign-based businesses are wondering to what extent the Iran market is now open for business and how they will be impacted by the deal. This article analyzes how the sanctions regime will be changed by the accord and what, if any, impact it will have on various industries dealing with Iran. Perhaps surprising to some, the deal will have only limited impact on U.S. businesses as the main relief of U.S. sanctions will be focused on non-U.S. Persons. Foreign businesses will have few restrictions and will be well positioned to take advantage of Iran's almost untapped market.

Read more:

Friday, September 18, 2015

How the Pope Might Renew the Church - The New York Times

Three unmentionables- not only mentioned, but advocated by  a Catholic bishop:  a married priesthood, women priests, welcome divorced people at Communion.  - gwc
How the Pope Might Renew the Church - The New York Times
by Francis A. Quinn (former Bishop of Sacramento)

Sacramento — I AM a Catholic, born in 1921 of Italian and Irish families and raised in California seminaries. After decades of work as a priest, I was astonished that Pope Paul VI appointed me a bishop in San Francisco. I love my church, and every night I pray that I might die in her warm, loving arms.
Yet I worry about my church’s future. Basic doctrines will not change. But the church may change policies and practices after doing serious study.
So, as we await Pope Francis’ visit to America, I offer a peaceful contribution to the controversies that convulse the church today.
American Catholics are divided, primarily, by three internal church conflicts.
The first is over priestly celibacy. Observers within and outside the church point to mandatory celibacy as a principal factor driving down the number of American priests.
A celibate life is admirable for a priest who personally chooses it. For 1,000 years, great good has been accomplished because priests could fully devote their lives to their ministry.
Nevertheless, in recent years married clergy of other Christian churches have been accepted into service in the Catholic Church. So far, the ministry of these married priests has appeared successful.
The church should start relieving the desperate shortage of clergy members by also accepting for ordination men of mature age, of proven character and in stable marriages.
Optional celibacy allows a choice between an abstinent life, totally free for ministry, or a married life that enables better understanding of the lives of parishioners.
American Catholics are also divided over the ordination of women as priests.
Recent popes have said publicly that priesthood for women cannot be considered because the gospel and other documents state that Christ ordained men only.
Yet women have shown great qualities of leadership: strength, intelligence, prayerfulness, wisdom, practicality, sensitivity and knowledge of theology and sacred Scripture.
Might the teaching church one day, taking account of changing circumstances, be inspired by the Holy Spirit to study and reinterpret this biblical tradition?
Finally, why is a divorced Catholic who has remarried denied the Eucharist? Such people are considered living in an irregular union.
Valid marriages remain indissoluble. However, in confession a priest, after reviewing the circumstances with a remarried penitent, already can assist that person to develop a clear conscience with God and resume receiving the Eucharist.
Last month, Pope Francis stated that divorced and remarried Catholics were “not excommunicated,” perhaps suggesting that prohibition of the Eucharist is under review.
In surveys today, the question “to what church do you belong?” increasingly prompts the answer “none.” Polls show that many high school and college students have gradually come to believe that what they learned as children about the nature of God can be erased as readily as Santa Claus and the tooth fairy.
Keep reading

Libertarianism's Iron Cage | Commonweal Magazine

Arguing with a libertarian is a fruitless proposition.  It's a closed circle.  there's an answer for everything.  Reason is the asserted core but there is more to humanity than reason but not to libertarian ideology.  Alan Wolfe develops the argument. - gwc
Libertarianism's Iron Cage | Commonweal Magazine
by Alan Wolfe

Libertarianism... is not just a set of policy prescriptions, but an ideology. It is, moreover, atotal ideology, one that addresses every aspect of how people live. There is a libertarian way of riding a bicycle, of taking your medicine, finding a spouse, giving blood, and even calling a cab (can you say, “Uber?”). Where liberalism raises questions, libertarians seek answers, and always find the right ones. Their philosophy is an antidote to the doubt, inconsistency, and vagueness that has always been built into liberalism. Libertarians come in different forms, and can argue vehemently over concepts and applications. Yet there nonetheless does exist a general libertarian outlook on life—and it is very different from the liberal one.

Thursday, September 17, 2015

Deputy Attorney General Sally Quillian Yates Delivers Remarks at New York University School of Law Announcing New Policy on Individual Liability in Matters of Corporate Wrongdoing | OPA | Department of Justice

Deputy A.G. Sally Yates has announced that henceforth "regardless of how challenging it may be to make a case against individuals in a corporate fraud case, it’s our responsibility at the Department of Justice to overcome these challenges and do everything we can to develop the evidence and bring these cases. The public expects and demands this accountability. Americans should never believe, even incorrectly, that one’s criminal activity will go unpunished simply because it was committed on behalf of a corporation. We could be doing a bang-up job in every facet of the department’s operations – we could be bringing all the right cases and making all the right decisions. But if the citizens of this country don’t have confidence that the criminal justice system operates fairly and applies equally – regardless of who commits the crime or where it is committed – then we’re in trouble."

Wednesday, September 16, 2015

Constitutionally, Slavery Is No National Institution - The New York Times

 A couple days ago Senator Sanders spoke at Liberty University - a school founded by Rev. Jerry Falwell - a segregationist who learned to temper his views and founded the insufferably named organization The Moral Majority. Sanders was reported to have said that this country was "founded on racist principles".  Well...not quite - this country was founded on a deplorable compromise, not an open embrace of racist principles.  Lincoln thus was able to draw on the Declaration of independence to defend the union.   Princeton historian Sean Wilentz amplifies the point well. - gwc
Constitutionally, Slavery Is No National Institution - The New York Times
by SeanWilentz

Far from a proslavery compact of “racist principles,” the Constitution was based on a repudiation of the idea of a nation dedicated to the proposition of property in humans. Without that antislavery outcome in 1787, slavery would not have reached “ultimate extinction” in 1865....
Keep reading

Tuesday, September 15, 2015

Bring them here to St Louis ~ Guardian

'Bring them here': the case for St Louis to welcome Syrian refugees

Monday, September 14, 2015

America Is Great - The New York Times

NY Times columnist Roger Cohen is a hard guy to pigeon hole.  He supported the 2003 invasion of Iraq- and still does.  He is sharply critical of Israel and has a nuanced view of Iran.  He is not a fan of Donald Trump's `Make America Great Again' meme.  - gwc
America Is Great - The New York Times
by Roger Cohen

From Sweden to Sicily, greatness is looked at askance. It feels like a code word for bellicosity, self-delusion and shoot-from-the-hip hubris. It has a whiff of danger: far better to curtail ambition and embrace ordinariness. Better to be the face in the crowd than the face on the cover of Time magazine.

ABA Response to Lawyer Detentions in China Too Mild | New Jersey Law Journal

ABA Response to Lawyer Detentions in China Too Mild | New Jersey Law Journal
by the Editorial Board
Since July, across China authorities have detained or questioned some 225 Chinese "right violation" lawyers and staff who represent dissenters of one sort or another. Some are held in house arrest but others are held at locations unknown to their families—a violation of recently amended Article 73 of the criminal procedure law, which limits such detention to national security or major bribery cases where secrecy is essential to effective investigation.
China's ruling Communist Party last year made rule of law its overriding theme. They mean it. But they don't mean it the way we mean it. They are talking about the regularization of procedures, of ways of doing things. They do not mean that lawyers and judges are free to contravene official policy. They mean effective governance, not an independent bar and judiciary. Such civil society progress is important—environmental laws have been strengthened, courts improved, judicial decisions published on the Internet, etc.
But anyone who challenges the Communist Party's monopoly on political power faces arrest. So do those who would split Tibet or Xinjiang from China. But also vulnerable is anyone who rattles the cage, as the lawyers for dissident groups have found. One lawyer—Sui Muqing, based in Guangzhou—has now been charged with "inciting subversion of state power" as a result of her work on public interest cases. Other lawyers and legal activists have been charged with "picking quarrels and provoking troubles."
We American lawyers welcome the regularization and strengthening of the everyday operation of the Chinese legal system. We have fruitful exchanges and collaborations. Courts are improving. Law is developing. Lawyers and law professors take law seriously. But advocacy that touches "sensitive" issues—a common Chinese euphemism—can run afoul of the authorities. That sort of repression we properly oppose. The American Bar Association President recently stated that the ABA "encourages the Chinese Government to permit lawyers to discharge their professional duty to assure achievement of the fair and just legal system that the Communist Party has promised to all its citizens (and) encourages other foreign institutions that are objecting to the current treatment of lawyers in China to join in supporting those lawyers and cooperating with China."
We think that is putting it rather too mildly. We understand that there is a fear of jeopardizing working relationships. Such a tepid statement seems to show the chilling effect of the recent wave of arrests and detentions of dissident lawyers.
By contrast, the City Bar in a letter to China's President Xi Jinping called for the Chinese government to "immediately release the lawyers, legal activists, support staff, and family members targeted in this attack. Any ongoing detentions should conform to international standards of detention and ensure that detainees are held in official detention facilities, have regular access to legal counsel, and have access to their families. Moreover, we urge the Chinese government to take other steps to ensure that lawyers in China are free to carry out their professional obligation without intimidation, hindrance, harassment, or improper interference, in conformity with international standards and Chinese domestic law."
In our opinion the forthright statement of the New York City Bar Association strikes the right note.

Read more: http://www.njlawjo

John Oliver - You have the right to an attorney - Public Defenders

Sunday, September 13, 2015

Justice Dept: Hillary Clinton had right to delete personal emails

Justice Dept: Hillary Clinton had right to delete personal emails
by Amy Cramer and Chris Geidner - BuzzFeed
In a little noticed brief, filed on Wednesday to a federal court, Department of Justice lawyers outlined a comprehensive defense of the contentious decision by Hillary Clinton to wipe the private email server she used as secretary of state: The attorneys assert that, regardless of whether she used a personal or government account, Clinton was within her legal right to handpick the emails that qualified as federal records — and to delete the ones she deemed personal.
“There is no question that former Secretary Clinton had authority to delete personal emails without agency supervision — she appropriately could have done so even if she were working on a government server,” write the Justice Department attorneys, representing the State Department in the brief.
The lawyers add that under policies issued by the State Department and by NARA, the National Archives and Records Administration, government employees “are permitted and expected to exercise judgment to determine what constitutes a federal record.”
The filing is the latest in a long-running fight between the State Department and the conservative public interest group, Judicial Watch, over public records related to Clinton’s tenure in the administration. The brief this week, as first reported by the Washington Times, concerns Clinton’s personal emails in particular.
Late last year, in response to an administration record-keeping request, Clinton and her attorneys conducted a review of four years’ worth of email from her personal account, which she used to conduct government business as secretary of state. And in December, Clinton sent the State Department copies of emails she identified as work-related. The 31,830 remaining emails, described as strictly personal, were deleted.
In all the complexity of the email controversy — involving a tangle of concerns about server technology, anachronistic record-keeping practices, and the government’s oblique classification system — a more straightforward question has lingered since news of the email account broke in March: Was it a sound decision by Clinton to, without third-party oversight, determine the emails considered work-related, and therefore part of the federal record — and to then delete the rest?
On both counts, the Justice Department lawyers argue in the affirmative.
The attorneys, representing the State Department, filed the brief in response to a proposed “preservation order” by Judicial Watch: essentially a request that the State Department obtain and/or preserve the 31,830 emails not turned over in December “until the court can fully brief and consider relevant questions of law.” The sought preservation order, proposed to the federal court last week, is part of a Judicial Watch Freedom of Information Act case, re-opened this spring following the disclosure of Clinton’s personal email server. (Of the 30 outstanding FOIA suits relating to Clinton’s tenure at the State Department, Judicial Watch has filed 16.)
The group’s preservation order would also ask that Clinton, her lawyer, and her IT company “confirm in writing under penalty of perjury” whether they or anyone else still hold the emails from the server not already turned over to the State Department.

Saturday, September 12, 2015

Colleges Flush With Cash Saddle Poorest Students With Debt - ProPublica

Colleges Flush With Cash Saddle Poorest Students With Debt - ProPublica
by Annie Waldman and Sisi Wei

New York University is among the country’s wealthiest schools. Backed by its $3.5 billionendowment, the school has built campuses in Abu Dhabi and Shanghai, invested billionsin SoHo real estate, and given its star faculty loans to buy summer homes.
But the university does less than many other schools when it comes to one thing: helping its poor students.

Debt By Degrees

Use our interactive database to search new federal data on almost 7,000 schools in the U.S. to see how well they support their poorest students financially. Explore the app.
(Sisi Wei and Annie Waldman, ProPublica)
A ProPublica analysis based on new data from the U.S. Department of Education shows that students from low-income families graduate from NYU saddled with huge federal loans. The school’s Pell Grant recipients – students from families that make less than $30,000 a year – owe an average of $23,250 in federal loans after graduation.
That’s more federal loan debt than low-income students take on at for-profit giant University of Phoenix, though NYU graduates have higher earnings and default less on their debt.
NYU is not the only university with a billion-dollar endowment to leave its poorest students with heavy debt loads. More than a quarter of the nation’s 60 wealthiest universities leave their low-income students owing an average of more than $20,000 in federal loans.
At the University of Southern California, which has a $4.6 billion endowment, low-income students graduate with slightly more debt than NYU’s graduates: $23,375. At Boston University ($1.5 billion endowment), it’s $27,000, and at Wake Forest University ($1.1 billion endowment) low-income students graduate with $29,150 in debt.

This new data on student debt is drawn from numbers that the Obama administration assembled as part of a planned effort to create grades for every college. In the face of fierce lobbying from universities, the administration backed away, but has made much of the data public on a new website called College Scorecard. ProPublica has used that material to create Debt By Degrees, an interactive database that allows you to search information for almost 7,000 schools. The data provides an unprecedented level of detail on the financial burden that the poorest college students face, showing for the first time how much federal debt poor students take on compared to their wealthier peers, and how well these students are able to repay their loans. The database also shows how much graduates earn on average after leaving school.

Judges, Juries, and the Politics of Tort Reform by David Andrew Logan :: SSRN

Former Roger Williams Law School Dean David Logan mounts something all too rare: an academic's defense of the jury system and a straightforward critique of the so-called "tort reform" movement.  - gwc
Judges, Juries, and the Politics of Tort Reform by David Andrew Logan :: SSRN

The civil justice system has many repeat players with a deep interest in the civil justice system because they are often the target of personal injury lawsuits, most prominently product manufacturers and physicians, and the companies that insure them. Following a blueprint drafted by leading corporate lawyer Lewis Powell, prior to his appointment to the Supreme Court of the United States, these deep pocket interests have spent four decades and tens of millions of dollars maligning the civil jury and trying, with notable success, to influence legislators, administrators, and judges, both state and federal, under the catchy, but misleading banner of “tort reform.” These campaigns have been amplified by media coverage of the civil justice system that has been unsophisticated, and at times misleading.

This article argues that separation of powers concerns counsel that we should be cautious about constricting the role of the jury, one of our most democratic institutions. Juries provide checks and balances on government; juries are independent; juries bring community values into the judicial system; juries are fair; juries legitimatize the civil justice system; and, juries generally “get it right.”

Instead of draconian reforms like damage caps, the article argues for the primacy of judges when adjustments to the civil justice system are called for. Judges bring legal experience and knowledge not shared by most legislators and administrators; the nature of the judicial process makes judges predictable and their work transparent; judges are far less likely to be “captured” by special interests than legislators and administrators; and state judges have the best perspective of how the civil justice system works and are thus in the best position to implement reforms when necessary.

The article concludes with a survey of various tools, some time-tested and others novel, by which judges can oversee the work of juries, and the civil justice system more generally.

When good intentions fall short in fixing schools - The Washington Post

When I saw the photo - of Mark Zuckerberg, Chris Christie, and Cory Booker - announcing the Harvard dropout Facebook CEO's huge donation to the Newark Public Schools I knew enough to be very skeptical.  Christie alone was enough to spoil the party - guaranteeing that attacks on the teacher's union would be part of the plan.  I don't know how to fix the Newark Public Schools - but firing teachers and eliminating their job security is surely not among them. - gwc
When good intentions fall short in fixing schools - The Washington Post

Who’s in Charge of America’s Schools?
By Dale Russakoff
Houghton Mifflin Harcourt. 246 pp. $27
Five years ago, a cluster of superstars aligned for an unprecedented and ambitious reform of Newark’s long-struggling school system. Two formidable politicians, Newark’s Democratic mayor, Cory Booker, and New Jersey’s Republican governor, Chris Christie, put aside partisan differences and conspired to overhaul the Brick City’s schools. The revamp sought to open more charter schools, change the teachers’ contract to more easily fire weak teachers and reward high-performing ones, and aggressively close schools with lagging test scores.
These reforms are being tested and debated in cities across the country, but Booker and Christie enlisted some particularly deep pockets to help bring them to Newark: Facebook founder Mark Zuckerberg donated $100 million in grant money with the condition that the New Jersey politicians find donors to match it. When the earnest young billionaire, the suave mayor and the tough-talking governor announced the gift during an episode of Oprah Winfrey’s talk show in September 2010, raising another $100 million seemed easy. With free publicity, ample political capital and gobs of Silicon Valley cash, what could go wrong?
Just about everything, it turns out, as documented in former Washington Post reporter Dale Russakoff’s incisive new book, “The Prize.” Russakoff gives her accounting in chapters that (roughly) alternate between the stories of key leaders — especially Booker and Newark school Superintendent Cami Anderson — as they attempt to impose top-down reform on a skeptical community, and the tales of educators and students working to improve their own lives and schools. The narrative is rooted in vivid, sometimes incongruous events, from the buffet dinner at a Sun Valley townhouse where Booker first pitched his vision to Zuckerberg, to the bloody handprints that a charter school leader found on the walls of her school one morning, detritus of a late-night brawl involving nine young men.
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*Sarah Carr is the author of “Hope Against Hope,” which tells the story of the New Orleans schools after Hurricane Katrina. She directs the Teacher Project, an education reporting fellowship at Columbia Graduate School of Journalism.

Friday, September 11, 2015

In Praise of Law Reviews (And Jargon-Filled, Academic Writing) by Cass R. Sunstein :: SSRN

In Praise of Law Reviews (And Jargon-Filled, Academic Writing) by Cass R. Sunstein :: SSRN

Many people, including many lawyers and judges, disparage law reviews (and the books that sometimes result from them) on the ground that they often deal with abstruse topics, of little interest to the bar, and are sometimes full of jargon-filled, excessively academic, and sometimes impenetrable writing. Some of the objections are warranted, but at their best, law reviews show a high level of rigor, discipline, and care; they have a kind of internal morality. What might seem to be jargon is often a product of specialization, similar to what is observed in other fields (such as economics, psychology, and philosophy). Much academic writing in law is not intended for the bar, at least not in the short-term, but that is not a problem: Such writing is meant to add to the stock of knowledge. If it succeeds, it can have significant long-term effects, potentially affecting what everyone takes to be “common sense.”

DOJ Outlines New Policy Regarding White Collar Cases Against Individuals | WilmerHale

DOJ Outlines New Policy Regarding White Collar Cases Against Individuals | WilmerHale
The Department of Justice has released a new policy intended to further the Department’s effort to hold individuals accountable for corporate wrongdoing. The policy was laid out in a September 9, 2015 memorandum authored by Deputy Attorney General Sally Quillian Yates. The new policy is more than a clarification of existing practices; it constitutes the most significant new measures taken since the Department intensified its focus on pursuing white collar cases against individuals last year. The policy, and in particular the requirement that corporations provide the Department with “all relevant facts relating to the individuals responsible for the misconduct” in order to receive any cooperation credit, could have significant implications for how corporations investigate potential misconduct and share factual findings with the Department.