Tuesday, June 30, 2015

Mary Ann Glendon - Religious Freedom in Danger

Mary Ann Glendon's lament is a mystery to me.  I see nothing in my liberal family that remotely resembles what she is talking about.  I see her world view as upside down.  In my mind social conservatives eschew social responsibility.  Individual fulfillment is distorted by the profit motive which they celebrate.

Sexual morality is important - freedom to marry - or not, respect for women, acceptance of homosexuals, and planned parenthood are liberal values that seem to me to deserve to be championed.

As to the scourge of irresponsible fathers - that seems to me to be a consequence of the forces that drive down wages - among whom Glendon's Republican allies are prime movers. - gwc

The 2015 Cardinal Egan Lecture

Religious Freedom: Yesterday, Today and Tomorrow 

Mary Ann Glendon

Learned Hand Professor of Law at Harvard University, Former Ambassador of the United States to the Holy See
Member, United States Commission on International Religious Freedom

"At the heart of this turn to expressive individualism, of course, was a revolution in sexual mores, where the pursuit of individual self-fulfillment at all costs caused more and more people to fall away from churches that uphold rigorous standards of sexual morality. Like other revolutions, the sexual revolution had its
costs and casualties, some of which took time to come into view. With hindsight, though, it was the beginning of what George Weigel has aptly called a “long march through the institutions of American life, and through the public moral culture those institutions once embodied as well as sustained.” Those embattled institutions include three great mainstays of human well-being: the rule of law, the Church, and the marriage-based family."

And so it came to pass that the very period when some of us saw the civil rights movement as expanding the inclusiveness of what Rev. King called the Beloved Community, was actually a time when individual self-expression was about to become an overriding value. Five decades later, we can see the effects of this transformation in practically every aspect of life, including the appearance of a new public morality that turns the Judeo-Christian moral inheritance upside down, and that brooks no dissent from its rigid new dogmas.

We can also see that the zeal for maximizing individual self-fulfillment took its heaviest toll on the most defenseless. When one considers the epidemic of fatherlessness and the havoc wrought by abortion, it is hard to pretend that you can have freedom without responsibility, rights without duties, and sex without

Support Greece Against IMFAusterity Demands - Economics as Religion

Economics as Religion //AFL-CIO NOW
by William E. Spriggs

Yesterday and today, the world watches, slacked jawed at the endgame of the Greek government’s debt negotiations. The stakes are higher than many Americans understand. So far, the U.S. financial press has viewed this as isolated to the Eurozone. That is in large part because, having endured the Great Recession, there is a view that things are only bad if they threaten the “too big to fail” American banks that can create systemic risks for the U.S. financial sector. But, that view of the world that only bank stability matters is what is so incredulous.
The advanced economies have not recovered from the Great Recession. The United States has done by far the best, because of a very early and large stimulus package that stabilized the real economy—the one where people make things and earn income to buy things, and governments perform basic services. Europe turned quickly to reducing public debt and shrinking government, which has left its real economy with high unemployment and slow growth. And, its reticence to regulate their banking sector has many of its major banks still in poor condition. This stems from accepting the neo-liberal model that the universe revolves around the financial sector as religion. It is a theocracy, but of the most ancient, it is the transformation of the worship of the golden calf; but now money.
At the time of the 2008 financial crisis, various governments were in different positions. Spain’s government was running fiscal surpluses, and was very stable. Greece’s government faced some underlying challenges of rising debt and weak tax collection. These were two extremes of the spectrum. Like financial institutions, governments need a growing and strong real economy. So, both the Spanish and Greek governments ran into difficulty. But, the economy is a system, and strong real economies need financial institutions and governments.
The neo-liberal model dictated that everyone must rescue the financial sector, making what is a system that needs all parts to be healthy, into a machine that only needs an engine. But, a healthy financial sector without government or workers and consumers is an engine disconnected from the wheels and chassis: it will go nowhere. The corollary is that there are banks too big to fail, but governments are not. And, as we saw in the U.S. case, there were those willing to say, “and there are industries, like the American automobile industry, that are not too big to fail.”
The concessions that the International Monetary Fund and the European Commission are trying to force on Greece are steeped in this set of beliefs. The IMF and EC have pushed cuts in the Greek government, threatening its very ability to function, to deliver the basic services that are the chassis holding the economic vehicle together. Of course these cuts have not pushed the Greek economy ahead; instead the economy shrank 25% and unemployment is mired above 25%.
But, beyond fiscal austerity, the IMF and the EC insist that Greece cannot get on the right track unless it institutes “structural” reforms to its economy. Here, the IMF and EC mean creating an unfettered capitalist state. Greece must weaken its collective bargaining structures; lower its labor standards and wages, so that the Greek people must be forced to bow to the will of the market. This is borne of a view that the Greeks are profligates who must be taught the value of hard work and repay their debts. More importantly, this sacrifice of the Greek people is necessary to discourage people in Spain, Portugal and Ireland from staging similar revolts against the neo-liberal order demanding a different reconciling with the debt crisis.
This is religion, because the IMF’s own current research says that inequality hurts economic growth. And, further, it is the IMF’s own current research that says that unions, in particular, are vital to combating inequality. Taking actions based on faith in the unseen and not on empirical evidence is the definition of religion or superstition.
Similar mean-spirited thoughts guided post-World War I policies in dealing with Germany and its allies in handling the financial strain of the costs of that war. Fortunately, at the conclusion of World War II, it was felt that passions that fueled those decisions were not rational. A new set of institutions would be created to handle global government finances to insure the stability of governments, with a realization that at the end, it is the economy that must serve the people and their governments, not the other way around. One of those institutions, oddly, was the IMF.
In the U.S. we must take the side of Greece in this fight. It is in our interest, as the immediate problem of the instability this is causing is a rising dollar that will hurt U.S. exports and jobs. And, we can never be sure of the interrelated nature of financial collapses since so much of the banking sector remains in the shadows; with global derivatives trading at values greater than global output.
More importantly, we must also revolt against this economic order. It is the same order that saved JP Morgan Chase, but let Detroit and now Puerto Rico fail. It is the same religion that would sacrifice the earnings of American students with rising student debt and de-invest in public higher education. It is the same religion that would sacrifice American jobs and labor standards and back the Trans-Pacific Partnership. We must see these as the same struggle to restore sanity and purpose to role of government and its servant, the economy.
And, most importantly, we must remember the lesson of World War I. We cannot predict what the response of people will be to austerity. It is every bit as likely to bring about hostility that is not rational. It might inspire little minds to unimaginable evil. 

Supreme Court ( 5-4) Strikes EPA Power Plant Regs

Michigan v. EPA - Supreme Court Strikes Green House Gas Regs as Irrational

Judicial modesty is a virtue embraced principally in dissent, it seems.  Congress directed the EPA to study the problem of power plant emissions, a major source of pollution because coal burns inefficiently.  The EPA is an agency with substantial scientific expertise.  But, according to the Supreme Court's conservative majority the EPA irrationally failed to consider costs in its calculus.

In the minority's view Justice Scalia's opinion is a dressed up version of the usual talk show laments  - EPA out of control, etc.  The four dissenters, speaking through Justice Elena Kagan, declare:
Despite that exhaustive consideration of costs, the Court strikes down EPA’s rule on the ground that the Agency “unreasonably . . . deemed cost irrelevant.”  On the majority’s theory, the rule is invalid because EPA did not explicitly analyze costs at the very first stage of the regulatory process, when making its “appropriate and necessary” finding. And that is so even though EPA later took costs into account again and again and . . . so on. The majority thinks entirely immaterial, and so entirely ignores, all the subsequent times and ways EPA considered costs in deciding what any regulation would look like. That is a peculiarly blinkered way for a court to assess the lawfulness of an agency’s rulemaking. I agree with the majority—let there be no doubt about this—that EPA’s power plant regulation would be unreasonable if “[t]he Agency gave cost no thought at all.”   But that is just not what happened here.

Monday, June 29, 2015

President Obama's Eulogy for Rev. Clementa Pinckney | whitehouse.gov

 Remarks by the President in Eulogy for the Honorable Reverend Clementa Pinckney | whitehouse.gov
by Barack Obama, June 26, 2015
***Over the course of centuries, black churches served as “hush harbors” where slaves could worship in safety; praise houses where their free descendants could gather and shout hallelujah -- (applause) -- rest stops for the weary along the Underground Railroad; bunkers for the foot soldiers of the Civil Rights Movement.  They have been, and continue to be, community centers where we organize for jobs and justice; places of scholarship and network; places where children are loved and fed and kept out of harm’s way, and told that they are beautiful and smart -- (applause) -- and taught that they matter.  (Applause.)  That’s what happens in church.  
That’s what the black church means.  Our beating heart.  The place where our dignity as a people is inviolate.  When there’s no better example of this tradition than Mother Emanuel -- (applause) -- a church built by blacks seeking liberty, burned to the ground because its founder sought to end slavery, only to rise up again, a Phoenix from these ashes.  (Applause.) 
When there were laws banning all-black church gatherings, services happened here anyway, in defiance of unjust laws.  When there was a righteous movement to dismantle Jim Crow, Dr. Martin Luther King, Jr. preached from its pulpit, and marches began from its steps.  A sacred place, this church.  Not just for blacks, not just for Christians, but for every American who cares about the steady expansion -- (applause) -- of human rights and human dignity in this country; a foundation stone for liberty and justice for all.  That’s what the church meant.  (Applause.)   
We do not know whether the killer of Reverend Pinckney and eight others knew all of this history.  But he surely sensed the meaning of his violent act.  It was an act that drew on a long history of bombs and arson and shots fired at churches, not random, but as a means of control, a way to terrorize and oppress.  (Applause.)  An act that he imagined would incite fear and recrimination; violence and suspicion.  An act that he presumed would deepen divisions that trace back to our nation’s original sin.
Oh, but God works in mysterious ways.  (Applause.)  God has different ideas.  (Applause.)  
He didn’t know he was being used by God.  (Applause.)  Blinded by hatred, the alleged killer could not see the grace surrounding Reverend Pinckney and that Bible study group -- the light of love that shone as they opened the church doors and invited a stranger to join in their prayer circle.  The alleged killer could have never anticipated the way the families of the fallen would respond when they saw him in court -- in the midst of unspeakable grief, with words of forgiveness.  He couldn’t imagine that.  (Applause.)  
The alleged killer could not imagine how the city of Charleston, under the good and wise leadership of Mayor Riley -- (applause) -- how the state of South Carolina, how the United States of America would respond -- not merely with revulsion at his evil act, but with big-hearted generosity and, more importantly, with a thoughtful introspection and self-examination that we so rarely see in public life.
Blinded by hatred, he failed to comprehend what Reverend Pinckney so well understood -- the power of God’s grace.  (Applause.)  ***

Friday, June 26, 2015

Disparate ImpactHousing Litigation Survives Supreme Court Challenge : SCOTUSblog

Torts Today: Disparate ImpactHousing Litigation Survives Supreme Court Challenge : SCOTUSblog
We dodged another bullet today in the Texas Fair Housing Act case.  Writing for the 5-4 majority Justice Anthony Kennedy held to his very formalistic view of racial discrimination but found his way to the plaintiffs side.  Generally only intentional race-based choices satisfy him as improper.  He allows for some flexibility but is deeply skeptical otherwise, as Lyle Denniston notes at Scotusblog But today the weight of precedent put in his hands the swing vote that allowed "disparate impact" cases to survive.  He frames the issue thus:

In contrast to a disparate-treatment case, where a
“plaintiff must establish that the defendant had a discriminatory
intent or motive,” a plaintiff bringing a disparate impact
claim challenges practices that have a “disproportionately
adverse effect on minorities” and are otherwise
unjustified by a legitimate rationale. Ricci v. DeStefano,
557 U. S. 557, 577 (2009) ... The question presented for the Court’s determination
is whether disparate-impact claims are cognizable
under the Fair Housing Act (or FHA) 42 U. S. C. §3601 et seq. 
Important is his recognition of the weight of history (documented by the Innovative Communities Project amicus brief) legal segregation, white flight, and the redlining of places like the one I grew up in - the archetypal suburb Levittown where unenforceable covenants to sell only to "Caucasians" were in every deed:
De jure residential segregation by race was declared
unconstitutional almost a century ago, Buchanan v. Warley,
245 U. S. 60 (1917), but its vestiges remain today,
intertwined with the country’s economic and social life.
Some segregated housing patterns can be traced to conditions
that arose in the mid-20th century. Rapid urbanization,
concomitant with the rise of suburban developments
accessible by car, led many white families to leave the
inner cities. This often left minority families concentrated
in the center of the Nation’s cities. During this time,
various practices were followed, sometimes with governmental
support, to encourage and maintain the separation  of the races. 
Valerie Schneider offers a first look at today's decision. - gwc

Symposium: The sweetness of the status quo: The Court upholds over forty years of precedent : SCOTUSblog

Thursday, June 25, 2015

Supreme Court Allows Nationwide Health Care Subsidies - The New York Times

Prof. Julius Cohen taught Legislation in my first semester in law school.  Surprisingly the subject went into disfavor in later years, only to be revived recently.  We learned canons of construction.  Among the first was to construe a law not literally but so as to effectuate the legislators' intent.  That rule had its origins in the seventeenth century when the Parliament raised the New Model Army and went to war against the Royalists, culminating in parliamentary supremacy with the Glorious Revolution of 1688.
Our Constitution sought to diffuse power, creating an often dysfunctional system.  In the 1930's the Supreme Court found in Congress's power to regulate commerce among the states the  power to overcome the small government view of federalism that James Madison and the much overrated Thomas Jefferson heralded.  Babbit-like resentment of the costs imposed by federal regulation have been a cornerstone of modern conservatism.  It has led them to embrace state's rights and a sharply limited view of the Supreme Court's powers.  But as conservative ideological preeminence grew in the past forty five years the denunciation of "judicial activism" became a ritual cry but not an operating principal.

When the Affordable Care Act became law conservatives saw an opportunity to undermine the commerce clause jurisprudence which is the jurisprudential foundation of the modern regulatory state.  In 2011 they came very close to a win in Sebelius v. National Federation of Independent Businesses.  Five justices, including the Chief Justice,concluded that the ACA was not authorized under the commerce clause.  "Obamacare" was saved by C.J. John Roberts opinion that the tax power authorized the insurance requirement.

When King v. Burwell was accepted by the Supreme Court the entire legislative structure was put at risk - over what appeared to be a drafting error.  But there is little more appealing to a lawyer than the words of a statute.  And here the words called for an "exchange established by the State" as the portal through which federal health insurance tax credit subsidies would be allocated.  The justices faced the question: what will prevail: the words of the provision or an expansive, saving construction of the entire Act, whose sprawling 2000 pages sent a general message that Congress's intent was to subsidize health insurance for low and moderate wage earners.   The dilemma for (it proved) Justices Roberts and Kennedy was that construction of the phrase in context meant a green light for a law the structure of which was unconstitutional, in their view.  Construing Congressional intent requires discipline of the judge because today's Congress is led by men who have voted dozens of times to repeal the entire ACA.
Such a choice is inevitably driven by the jurist's view of the desirable outcome.  But that view is a broad one.  There are competing canons of construction: the literal approach and the overall purpose approach.  A judge may consider  the impact of a decision, not just adherence to the canon of construction that one must be bound by the words of the statute.  Searching for implied intent is an invitation to abandon the words, and seek one's own preferred meaning.  In Justice Scalia's view that is what the majority has done. The ACA should be called "Scotuscare" now he cried.  Antonin Scalia certainly knows how to coin a word.  But his ability to govern is suspect.  The wisdom of the King V. Burwell majority's ruling in my view is that deference to legislation requires recognition of drafting failures, and an appreciation that a major regulatory measure like the ACA creates new classes of expectations - such as the expectation of millions that their health insurance will continue to be made affordable thanks to public largess.  - gwc

Supreme Court Allows Nationwide Health Care Subsidies - The New York Times
by Adam Liptak
The question in the case, King v. Burwell, No. 14-114, was what to make of a phrase in the law that seems to say the subsidies are available only to people buying insurance on “an exchange established by the state.”

Continue reading the main story


Supreme Court Decision on Health Care Subsidies

The Supreme Court ruled that President Obama’s health care law may provide nationwide tax subsidies to help poor and middle-class people buy health insurance.

Chief Justice Roberts wrote that the words must be understood as part of a larger statutory plan.
“In this instance,” he wrote, “the context and structure of the act compel us to depart from what would otherwise be the most natural reading of the pertinent statutory phrase.”
“Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them,” he added. “If at all possible, we must interpret the act in a way that is consistent with the former, and avoids the latter.”

Wednesday, June 24, 2015

How The South Lost The War But Won The Narrative //Tony Horwitz //Talking Points Memo

Statute of the treasonous General Robert E. Lee,
Monument Avenue, Richmond, VA
In For Cause and Comrade:  Why Men Fought and Died in the Civil War the great historian James M. McPherson explores letter of soldiers on both sides.  The title conveys the thesis.  It was, as Kevin Philips calls it, a cousins war.  People fought to defend what they believed in and for their comrades and tribesmen.  In that sense there was honor on both sides.  Former Sen. Jim Webb makes this point. But the modern use of the Confederate battle flag has nothing to do with that.   It is part of the southern legend, the trail of heroes - the justification of the Jim Crow laws, of racial segregation, of white supremacy.  If any good comes from the Emanuel A.M.E. Church massacre it will be the beginning of the end of the lionization of the justly defeated cause. - gwc

How The South Lost The War But Won The Narrative
by Tony Horwitz//TPM
 ***With the Civil Rights struggle, scholars of the Civil War era gave new emphasis to race and slavery, and this trend has continued ever since. The evidence is overwhelming that Southern states seceded and fought to maintain slavery. Don’t believe me; believe the words of secessionists and Confederate leaders. Among the most often cited is Confederate vice-president Alexander Stephens who in 1861 declared the Founders “fundamentally wrong” in judging all humans equal. “Our new government is founded upon exactly the opposite idea; its cornerstone rests upon the great truth, that the negro is not equal to the white man; that slavery—the subordination to the superior race—is his natural and normal condition.”

The same view was expressed by the secessionist conventions in Southern states that published their reasons for leaving the Union. The authors sometimes couched their declarations in Constitutional arguments about sovereignty, but left no doubt about the state right at issue. Mississippians bluntly declared, “Our position is thoroughly identified with the institution of slavery—the greatest material interest of the world.” Texans cited a Northern “crusade” against the “beneficent and patriarchal system of African slavery,” and Texans’ conviction that bondage “should exist in all future time.”

There are countless such statements, scores of scholarly works documenting the cruelties of the slave economy and how much it was bound up with Southern life and politics. Most textbooks follow suit. Yet the prevailing popular view of the Civil War still reflects a strong Southern bias: that the Confederacy fought for vaguely defined “states’ rights,” and its battle flag isn’t intrinsically racist, it’s an anodyne emblem of Southern “heritage.”

I’m not very optimistic that the debate over South Carolina’s flag will bring a deeper reckoning. Furling the statehouse flag may bring temporary relief to South Carolinians, but what we truly need to bury is the gauzy fiction that the antebellum South was in any way benign, or that slavery and white supremacy weren’t the cornerstone of the Confederacy. Only then, perhaps, will we be able to say that the murdered in Charleston didn’t die in vain, and that the Lost Cause, at last, is well and truly lost.

Nina Simone’s Time Is Now, Again - The New York Times

Nina Simone's Live at the Village Gate was Satruday night makeout music in m girlfriend's basement in 1963.  Her version of House of the Rising Sun was the first one I heard.  Then came Black is the color of my true love's hair, Sinnerman, and Mississippi Goddamn - her anthems sung as she accompanied herself on piano.  I was caught up in the folk revival and knew that the civil rights marchers were the good guys but was just a naive Catholic School boy with no real engagement in the outside world.  But I knew there was something special going on with Nina Simone.  Fifty years later her magic is captivating people.  And we are again struggling with racism, though the circumstances are much changed, as our Black President affirms, the legacy of America's original sin haunts us still. - gwc
Nina Simone’s Time Is Now, Again - The New York Times

Nina Simone is striking posthumous gold as the inspiration for three films and a star-studded tribute album, and she was name-dropped in John Legend’s Oscar acceptance speech for best song. This flurry comes on the heels of a decade-long resurgence: two biographies, a poetry collection, several plays, and the sampling of her signature haunting contralto by hip-hop performers including Jay Z, the Roots and, most relentlessly, Kanye West.

Fifty years after her prominence, Nina Simone is now reaching her peak.

Tuesday, June 23, 2015

Charleston & the Politics of Evasion | Commonweal Magazine

Charleston & the Politics of Evasion | Commonweal Magazine
by E.J. Dionne

As for our truly twisted national policies on firearms, even advocates of sane gun regulations are so discouraged that they don’t even try to rally us to action when horror strikes. Obama spoke plainly when he declared that “this type of mass violence does not happen in other advanced countries ... with this kind of frequency.” But then he acknowledged that “the politics” of guns forecloses doing much at all. At best, he hoped that the American people will “at some point ... come to grips with it.”
But when will we arrive at such a point when the first argument of the gun lobby is that the solution to the problem of too many guns is—more guns? We now have an estimated 270 million to 310 million guns in the United States. Will another 10 million, 20 million, 100 million make us safer? Must we all be ready to pack heat when we go to pray for salvation from violence and hatred?
Are our politics so demented and our senators and house members so cowardly that they cannot even pass laws to keep guns out of the hands of the troubled, the insane and those with a history of violence? Apparently so.
Millions of words will be written and spoken about the victims in Charleston. We’ll deal with everything—except the need to change.

Monday, June 22, 2015

Why can’t I have landmines? | GOPLifer

Common sense.
Why can’t I have landmines? | GOPLifer
by Chris Ladd
If Americans didn’t possess nearly half the world’s total inventory of guns in private hands it would be harder for the occasional lunatic get his hands on a weapon and mow down a Bible study group. So what? We need those weapons to protect our liberty from the gangs of roaming thugs who want to oppress us. And from Obama.
America is the only country in the world that endures mass shootings on a regular basis in peacetime because we are the only country on Earth that truly understands freedom. Every decent person unclouded by progressive Communistic propaganda recognizes that there is one way to respond to incidents of random gun violence – arm ourselves even more.
If that church in Charleston had been ringed by landmines, and its doors defended by turret guns attached to heartbeat sensors, and each parishioner was armed with a pistol held on their hip, this tragic incident would maybe still have occurred, but it sure would have looked different. This is what happens when limp-wristed progressives take away our right to self-defense.

Why the ACA remains unpopular, cont. | xpostfactoid

Figure 3
When I first went into business in 1980 providing family group health insurance was an automatic.  That was what decent employers did. By 1990 we were informing employees of the cost, including it in their statements of their annual compensation,and giving them "choices"  - like charging the difference between parent-child and family coverage, letting people go on their spouse's policy etc. And deductibles and co-pays went up - because we had "choices" - pay more get less, pay a lot more, stay even. Now when costs go up employers blame it on "Obamacare" instead of the insurance company.  - gwc
Why the ACA remains unpopular, cont. | xpostfactoid
by Andrew Sprung
Over at the Huffington Post, Jonathan Cohn has teamed up with pollster Mark Blumenthal for a deep dive into why the ACA's approval ratings remain underwater* and why more people continue to say that the law has personally harmed than helped them (though the gap had narrowed. to 22-19 when Kaiser last polled this question in March).

There are two main takeaways: 1) polling results are overwhelmingly partisan, and Republicans are more passionate in their hatred of the law than Democrats are in support of it, and 2) Americans tend to attribute any changes in their health plans -- usually price hikes or coverage cutbacks -- to the ACA. That's especially true of people with employer-sponsored insurance, a third of whom said they'd been hurt by the law.**

While those conclusions are spot-on, and Cohn and Blumenthal provide a nuanced overview of the ACA's effects on various groups, I'd like to throw one sidelight and add a couple of caveats.

First, the sidelight. Noting that the largest category of those who say the law hurt them say it drove their costs up, Cohn and Blumenthal suggest that the perception is not accurate:

Would “concealed carry” have stopped Dylann Roof’s church shooting spree? - The Washington Post

Image result for an armed society is a safe society
Would “concealed carry” have stopped Dylann Roof’s church shooting spree? - The Washington Post
by David Fortunato   (University of California, Merced)

On its face, the claim that increasing the number of gun carriers would reduce crime seems logical (at least to an economist). If more people carry guns, then criminals would understand that the likelihood of their victims defending themselves with a gun is higher and would therefore be less likely to commit crime. In simple economic terms, easing concealed carry seeks to increase the cost assailants pay to commit a crime, so they choose not to, we hope.
But scientific research on the ability of concealed carry to reduce crime has yielded mixed results. A few studies suggest these policies are effective, buteven more suggest that making concealed carry easier does not reduce crime and may even increase instances of firearm injury. Why is this the case? My research (gated final, ungated draft) suggests an explanation.
The ability of concealed carry to reduce crime is dependent on almost perfect information. This is how the policy should work:
  • A new law makes it easier to legally carry a concealed firearm
  • More people choose to carry firearms
  • Criminals observe (or infer) that more people are carrying firearms
  • Criminals choose not to commit crime, because they understand that the price of crime has increased because there are more firearm carriers
But if people do not believe that there are more firearm carriers because concealed carry laws have gotten more permissive, then they do not register that the price of crime has increased, and therefore crime rates will not fall.
My article presents evidence that this second result is likely the case. I surveyed 1,000 Americans and asked them how many people they believe are carrying firearms....

UN Gaza Inquiry finds credible allegations of war crimes committed in 2014 by both Israel and Palestinian armed groups

When one chooses sides one chooses one's poison.  In the Palestinian camp the poison is vengeful, if often relatively impotent, attacks on civilians.  In the Israeli case it is a refusal to recognize that they are settlers in a foreign land, and callous, vengeful retaliation with superior firepower.  The results are plain. - gwc
UN Gaza Inquiry finds credible allegations of war crimes committed in 2014 by both Israel and Palestinian armed groups
GENEVA (22 June 2015): The United Nations Independent Commission of Inquiry on the 2014 Gaza conflict has gathered substantial information pointing to the possible commission of war crimes by both Israel and Palestinian armed groups.
“The extent of the devastation and human suffering in Gaza was unprecedented and will impact generations to come,” the chair of the commission, Justice Mary McGowan Davis told a press briefing today, adding that, “there is also on-going fear in Israel among communities who come under regular threat”.
The 2014 hostilities saw a huge increase in firepower used in Gaza, with more than 6,000 airstrikes by Israel and approximately 50,000 tank and artillery shells fired. In the 51 day operation, 1,462 Palestinian civilians were killed, a third of them children. Palestinian armed groups fired 4,881 rockets and 1,753 mortars towards Israel in July and August 2014, killing 6 civilians and injuring at least 1,600.

Impunity prevails across the board for violations allegedly committed by Israeli forces, both in Gaza and the West Bank. “Israel must break with its lamentable track record in holding wrong doers accountable,” said the commissioners, “and accountability on the Palestinian side is also woefully inadequate”. 

 The Report - a preliminary document intended to guide the more complete investigation may be found HERE

New docketing procedures come to the Chinese courts | Supreme People's Court Monitor

When a case is filed in an American Court we generally are confident that it will be allowed to proceed and that we will get to engage in discovery, etc.  But in China when a hot potato lands in a court the claimanntsmayfind neither rejection nor aceeptance.  Just a stone wall.  That was the experience of some aquaculturists in the Bohai Bay after a 2010 oil spill at a platform operated by Conoco.  Cases were filed but the fisheries got no response.
At last year's Plenum the CPC central committee announced it would reform the case filing procedures. New regulations, reported here by the indispensable Susan Finder, show the process has gotten underway.
It is a more complicated problem than one might think.  Chinese courts do not have the competence we have developed for handling large scale litigation.  There is nothing comparable to the MDL procedures or the class action mechanisms we have.  Nor are Chinese law firms equipped financially to undertake the kinds of enormous efforts that we see - e.g. in the hundreds of thousands of claims brought on contingent fee basis in the BP Deepwater Horizon oil spill cases.  - gwc

New Docketing Procedures Come to the Chinese Courts
 by Susan Finder

New docketing procedures (case filing) (立案) have come to the Chinese courts. Chinese courts have a separate case filing divisions, which up until 1 May of this year acted as gatekeepers to courts. They exercised their approval authority over cases in a non-transparent manner, which meant for litigants in Chinese courts that their cases could be and were rejected without having the opportunity to argue why they should be accepted. Case filing divisions also were known to put troublesome filings aside, without issuing a rejection, or repeatedly asked for supplementary documents, seeking to drive away litigants by repeated formalistic demands.

More background is given in these blog posts and law review article. It has been an ongoing problem for many years, provoking endless complaints and articles by ordinary people, lawyers, academics, and NGOs, and has been one of the issues driving petitioners to the streets.

The Supreme People’s Court (Court) leadership identified case filing as one of the needed reforms (and as one of the many contributing factors to the low prestige of the Chinese judiciary), even before the Third Plenum. Because of that, the Communist Party’s 4th Plenum Decision and the 4th Five Year Court Reform Plan flagged this as a priority. (Unsurprisingly), the language in the two documents is almost identical...

Sunday, June 21, 2015

Gun Rights? Jim Jeffries -Australian Stand Up Comic

Australia essentially banned guns in 1996 after the Port Arthur massacre. They are blessed with no Second Amendment.  They've got racists, anti-immigrant sentiment, etc.  But they don't have the frontier myth.  Jim Jeffries, an Australian comic, ridicules our anti gun control politics.

Ninth Circuit en banc Reconsiders Peruta v. San Diego Pro-gun Ruling

In Peruta v. County of San Diego a panel (2-1) in an opinion by Judge Diarmuid O'Scannlain struck a California law requiring an applicant for a handgun permit to show "good cause".  California A.G. Kamala Harris asked the Ninth Circuit for en banc review by the entire panel.  O'Scannlain wrote that the Second Amendment affords the  right to carry a concealed weapon in public for "self defense".   The case was argued June 16, 2015.  The full docket is HERE.

Saturday, June 20, 2015

Gun Control: The Public Health and Rational Basis Review

The Public Health and Rational Basis Review of Gun Control

In sum, we hold that the District's ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense. Assuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home.
-Antonin Scalia writing for the majority in Heller v. District of Columbia

Every country has hateful or mentally unstable people. What’s different is that not every country is awash with easily accessible guns. So I refuse to act as if this is the new normal. Or to pretend that it is sufficient to grieve, or as if any attempt to act is politicizing the problem.
- Barack Obama, June 19, 2015 - speaking after the  Emanuel AME Church massacre

The Supreme Court - finding for the first time a personal right to bear arms - in Heller v. D.C. (2008)  left unsaid what disqualifies a person to obtain a license to carry a gun “in the home”.  As a nation  we are divided tribally.  One deplores the nation’s huge arsenal of privately held guns as the source of the 100,00 shootings and 30,000 deaths we suffer in a typical year.  President Obama is in that camp.  Another tribe embraces the right of possession because “[s]elf defense is a basic right...the central component of the Second Amendment’s guarantee of an individual’s right to keep and bear arms”, as Justice Clarence Thomas wrote recently dissenting in Jackson v. San Francisco.

No one disputes that the unlawful use of guns is a grave problem that stains our country.  But without recantation by the Supreme Court can these two polar views ever be reconciled?  If so there must be a way for the law to express it.  Embedded in the Second Amendment’s “well regulated militia” is the undisputed power of government  to license weapons.  The battle must be fought over what constitutes proper regulation since compulsory disarmament has now been taken off the menu in Heller.

Despite the recurrent mass killings, and the less noticed everyday homicides and suicides Congress has refused to enact new gun control measures.  Some states have acted.  Washington State  voters in Initiative 594 enacted universal background checks by referendum; while Texas has expanded rights to carry arms even to college campuses.  New York and Connecticut have enacted new controls.  In New Jersey N.J.S. 2C:58-3 (c)(5) provides that a permit may be denied “[t]o any person where the issuance would not be in the interest of the public health, safety or welfare … ."  In two recent decisions panels of the Appellate Division have relied on the public health, safety, and welfare  provision to deny permits.
In Appeal of the Denial of the Application of Z.L. the Appellate Division of the Superior Court of New Jersey recently upheld the discretionary denial of applications for three handgun permits to a man whose temper had led to several 911 calls by his wife.  Though he was not found guilty of domestic violence (a statutory disqualifier) the local police chief denied the permits citing “the public health, safety or welfare”.

In Appeal of the Denial of Applications of J.H. a panel upheld the denial of four permits sought by J.H. not because of his conduct but because his wife was disqualified due to prior CDS convictions and because she had on at least one occasion lost her temper and struck the applicant.  His wife’s presence in the house, the police concluded, outweighed the blameless applicant’s statutory right to own guns.

These two decisions wisely upheld the discretionary denial of gun permits.  Across the country courts have generally found a way to uphold state gun control measures, but as we have noted the standard of review remains unspecified by the highest court.  Justice Thomas laments that “lower courts, including the ones here, have failed to protect [the right]. Because Second Amendment rights are no less protected by our Constitution than other rights enumerated in that document” he would have granted review even absent a conflict among the Circuit Courts of Appeals.

Justice Thomas has misconstrued rights jurisprudence and slighted governmental authority to protect the public welfare.  Not all constitutional rights are created equal.  Some are more equal than others.   Therefore the degree of scrutiny courts may impose varies.  Searches must be reasonable.  Abortion restrictions must respect the privacy of the patient-physician relationship.  The right to counsel at government expense extends only to serious punishments.  The process due to a right holder varies with circumstances. For some government - before it acts -  must afford notice and an opportunity to be heard as in welfare entitlements under Goldberg v. Kelly (1969).  But more broadly as Matthews v. Eldridge (1976) explained the process due is a function of “1] the private interest that will be affected by the official action; the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and 3] the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.”

In free speech cases “strict scrutiny” has prevailed; in gender discrimination or professional regulation some intermediate standard is seen; and in review of most state criminal laws the deferential “rational basis” review has prevailed.   In our view the dangers of gun possession are so great that neither strict scrutiny nor some intermediate review is warranted.   Recreational and hypothetical need for self-defense claims should be subject to a different level of review: strict scrutiny of the applicant’s need and the highest regard for the compelling need to reduce the incidence of gun violence.

When viewing the public interest in avoiding unlawful violence and weighing it against the right of the person who seeks to license a gun it appears clear that neither strict scrutiny nor intermediate review is warranted. The public health and safety is a compelling interest - even the fundamental purpose of government.  When rights are in conflict - the public health and the individual’s hypothetical need to defend himself - the discretionary authority of public health and safety offices should be at its broadest.  The Appellate Division decisions in J.H. and Z.L.  should be endorsed.  And because the dreadful has become awfully familiar it is important for the state's Supreme Court to take the opportunity to affirm that the broad statutory discretion our police possess is constitutionally well grounded.


Thursday, June 18, 2015

Senator Bernie Sanders on Charleston Church Shootings

Statement on Charleston Church Shootings - Senator Bernie Sanders of Vermont
WASHINGTON, June 18 – Sen. Bernie Sanders (I-Vt.) issued the following statement today on the killing of nine people by a white man at a black church in Charleston, South Carolina:
“The Charleston church killings are a tragic reminder of the ugly stain of racism that still taints our nation.  This senseless violence fills me with outrage, disgust and a deep, deep sadness.  The hateful killing of nine people praying inside a church is a horrific reminder that, while we have made significant progress in advancing civil rights in this country, we are far from eradicating racism. Our thoughts and prayers are with the families and their congregation.” 

Again - Charleston Church Massacre - President Obama

Wednesday, June 17, 2015

Why Michael Oren's Blame Game on Israel Is So Wrongheaded - Israel – Forward.com

Why Michael Oren's Blame Game on Israel Is So Wrongheaded - Israel – Forward.com
by J.J. Goldberg
Every so often an idea or phrase enters the public square in a way that changes the discourse, often for the worse, sometimes dangerously so. Example: Michael Oren’s wrongheaded June 15 op-ed essay in The Wall Street Journal, “How Obama Abandoned Israel.”
It’s not easy to say this. Oren is a distinguished historian who writes with well-earned authority. As Israel’s former ambassador in Washington he was an eyewitness to much of what he describes. And he’s a genuinely decent person, all too rare in public life. But this article gets the Obama-Israel relationship wrong in a big way.
The biggest mistake actually isn’t Oren’s, but the Journal headline writer’s. The article actually doesn’t say Obama “abandoned Israel.” It accuses him of “abandoning the two core principles of Israel’s alliance with America.” Specifically, the principles of “no daylight” — that America and Israel “always could disagree but never openly” — and of “no surprises,” meaning clearing things with each other in advance.
Abandoning these operating principles would certainly unsettle the relationship, but it’s not the same as abandoning Israel. Headlines have a powerful impact, though. When they’re wrong, readers are left believing something that isn’t true.
Unfortunately, Oren’s actual accusations are also wrong. They misread the events, which is odd given Oren’s presence as an eyewitness. And they garble the historical context, which is even odder coming from a historian.

Read more: http://forward.com/opinion/israel/310175/michael-oren-wrongheaded-blame-game/#ixzz3dNVqXWch

Tuesday, June 16, 2015

Death toll rises to 114 in GM ignition defect recall cases //AP

Last year the Valukas report - prepared by Jenner & Block for the GM Board presented a devastating account of the willful blindness entrenched by GM's General Counsel.  Since the blind do not see it appears that no one knew or cared to know of the scale of the catastrophe an odd little flaw in the ignition switch mechanism had wrought.

Phrases like getting away with murder come to mind.  GM was shielded by the bankruptcy of "old GM" and the continuation of its business b "new GM".  In my view the discharge was fraudulently obtained by GM due to that willful blindness.  GM should hae been subjected to civil liability including punitive damages.

The company smartly appointed Kenneth Feinberg to clean up the mess by offering settlements to claimants - free, of course, from the threat of punitive damages.

But the Justice Department has not concluded its investigation and indictments seem likely.  - gwc

Death toll from defective GM ignition switches rises to 114

DETROIT (AP) — The death toll from faulty ignition switches in General Motors small cars has risen by three to 114.
Victims’ families are being offered compensation of at least $1 million each by attorney Kenneth Feinberg, who was hired by GM last year. In addition, Feinberg will make offers to 229 people who were injured in crashes caused by the switches in the Chevrolet Cobalt and other older cars.
GM recalled 2.6 million of the cars last year, but acknowledged it knew about the switch problems for more than a decade.
Feinberg’s compensation fund received 4,342 claims by the Jan. 31 deadline. About 3 percent remain under review. About 90 percent were deemed deficient or ineligible. So far, Feinberg has made 245 compensation offers; 179 have been accepted and six rejected, Camille Biros, deputy administrator of the compensation fund, said in an email. Sixty offers are still being considered, she said.
GM paid $200 million to settle claims filed with Feinberg as of March 31.
Through last year, GM estimated that 13 people had died because of the switches, but the company said that number would rise. Lawmakers estimated the total would be more than 100.

Monday, June 15, 2015

Torts as Wrongs by John C. P. Goldberg, Benjamin C. Zipursky :: SSRN

I have certain differences with Ben Zipursky and John Goldberg - mainly for overemphasizing the private law aspect of tort, over its public, judgmental aspect. But those deviations are small compared to our shared critique of the soulless utilitarianism of the "loss based" accounts exemplified by Richard Posner's law & economics, Guido Calabresi's Costs of Accidents, and Steven Shavell's welfare economics. - gwc
Torts as Wrongs by John C. P. Goldberg, Benjamin C. Zipursky :: SSRN

Torts scholars hold different views on why tort law shifts costs from plaintiffs to defendants. Some invoke notions of justice, some efficiency, and some compensation. Nearly all seem to agree, however, that tort law is about the allocation of losses. This Article challenges the widespread embrace of loss-based accounts as fundamentally misguided. It is wrongs not losses that lie at the foundation of tort law. Tort suits are about affording plaintiffs an avenue of civil recourse against those who have wronged them.

Although torts were once routinely understood as wrongs, since Holmes’s time, tort scholars have tended to suppose that the concept of a wrong is either too moralistic to explain the terms on which liability is imposed or so capacious as to be vacuous. We demonstrate that torts can be understood as a special kind of wrong without draining the content from the concept of a wrong. Specifically, every tort is a legal, relational, civil, and injury-inclusive wrong. In turn, tort law provides victims of such wrongs with a power to obtain recourse against those who have wronged them.

A view of torts as wrongs is not only conceptually available but interpretively superior to loss-based views. Indeed, the latter prove to be incapable of accounting for basic features of tort law, including: claims that are viable without proof of loss; claims that are not viable even though an actor has foreseeably caused a victim to suffer a loss; suits giving rise to remedies that do not involve the shifting of a loss; suits in which recovery turns on whether a certain kind of loss is parasitic on a predicate injury; and suits in which recovery is denied, or defenses rendered inapplicable, because there is a heightened or attenuated connection between the agency of the defendant and the plaintiff’s injury. In contrast to loss-based theories, a wrongs-based theory can easily account for all of these aspects of basic tort doctrine.

Perhaps the greatest challenge to wrongs-based theories lies in explaining what value there is, apart from loss-shifting, in having tort law. Our answer is that tort law is law for the recourse of wrongs. Hand-in-hand with their articulation of legal wrongs, courts provide victims of such wrongs with an avenue of civil recourse against their wrongdoers. This is what tort law does. It makes real the principle that for every right there is a remedy.

The man behind the BDS movement||972 Magazine


PrawfsBlawg: Is Heller Being Narrowed From Below?

I hope so.  In New Jersey there is a statutory right to purchase and possess a firearm unless you fall into one of the exceptions, the broadest of which is that a permit may be denied: "To any person where the issuance would not be in the interest of the public health, safety or welfare" N.J.S. 2C:58-3 (c)(5)

   A New Jersey man sought permits for three handguns.  He had been the object of several 911 calls by his wife.  No convictions of domestic violence but ill temper was evidenced. In Appeal of the Denial of the Application of Z.L the Appellate Division agreed with the trial court and the local police chief that the applicant was not a good bet.
I suppose it all depends on how you view the "self-defense" rationale enunciated in Heller and how intrusive you think the federal government should be in an area of traditional state primary jurisdiction.  But to my mind the "well regulated militia" contemplates a high degree of state control and even accepting Heller the right should be closely tied to a demonstrable need for self defense and a determination that the gun possessor is an appropriate bearer of arms.  To some that is virtual repeal. 

Justice Clarence Thomas recently complained in Jackson v. San Francisco that "Despite the clarity with which we described the Second Amendment’s core protection for the right of self-defense, lower courts, including the ones here, have failed to protect it. Because Second Amendment rights are no less protected by our Constitution than other rights enumerated in that document, I would have granted this petition."

Unlike Justice Thomas I see the public health as a powerful support for the kind of broad discretion that the statute permits.  Some - like the majority of the New Jersey Law Journal Editorial Board from which I dissent - worry, like Justice Thomas that courts are too lax or standards too low.  In my view not all rights are created equal.  Strict scrutiny for speech should not be extended to regulation of weapons. - gwc
PrawfsBlawg: Is Heller Being Narrowed From Below?
by Prof. Richard M. Re (UCLA School of Law)
Last week, Justice Thomas dissented from the Court’s denial of certiorari in the Second Amendment case Jackson v. San Francisco. Joined only by Justice Scalia, Thomas argued that San Francisco had adopted a firearm regulation substantially identical to the one struck down in Heller v. District of Columbia. The most interesting feature of the case was Thomas’s allegation that the decision below is an example of a much broader pattern. According to Thomas, “lower courts, including the ones here, have failed to protect” the right to bear arms and so have drained Heller of practical effect. If Thomas is right, then Jackson provides an important example of what I’ve called “narrowing from below”—that is, of lower courts narrowing higher-court precedent.
San Francisco generally prohibits people from having handguns in the home unless the weapons are “carried on the person” or stored in a locked container. In Jackson, a group of gun owners argued that the San Francisco law burdened their ability to defend themselves. While sleeping, for instance, private firearm owners must lock their weapons. And if an intruder attacked in the night, then a gun owner may have to spend precious time unlocking her firearm. One of Thomas’s examples involved a 79-year-old woman who is concerned about having to find her glasses to unlock her weapon before using it in self-defense.

In arguing that the Court should have granted review, Thomas conceded that there was no conflict in the courts of appeals. To deal with that shortcoming, Thomas pointed toward a less common basis for granting certiorari: a conflict with Supreme Court precedent. To wit, Thomas contended that “[t]he decision of the Court of Appeals is in serious tension with Heller.” Thomas accordingly argued that the Court should have granted review “to reiterate” the reasoning of Heller.

Red Dawn Flickers in Kansas - The American Interest

This is what rational Republicanism looks like.  I still ain't one. For example the phrase "core government functions" would not come from me as a limit on government.  As a socialist of some sort I have no inherent preference for private over public in a wide range of things.  Efficiency, yes.  But "that government is best which governs least", no.  But there will always be two sides of that debate. - gwc
Red Dawn Flickers in Kansas - The American Interest
by Walter Russell Mead
....What about another path: enacting reforms in the way government works and the role it plays in society, then cutting taxes as these policies either a) reduce the cost of government b) grow the economy and therefore the tax base or c) a mix of the two? The goal would be a virtuous circle: more efficient government plus smarter policies yields faster growth and lower taxes…
Very often, especially at the state level, the real barriers to growth aren’t the cost of income, sales, and property taxes. It’s the weight of regulations administered slowly by inefficient bureaucracies, impeded by NIMBY lawfare and licensing, zoning, and other policies intended to protect entrenched interests. The tort system in many states is a huge barrier to growth and cheap government alike, imposing large burdens on all economic activity and especially on health care. Policies that chip away at the size of bureaucracies by streamlining their operations, limit government to its core functions and then execute those core functions quickly and effectively, and begin to dismantle and where necessary reform and update the encrusted and outdated regulatory structures and methods—and then progressively return the savings to taxpayers in the form of lower taxes…that’s governance. That’s what a political movement looks like that can shift the ground in American debates.
Red Dawn Republicans started out as insurgents—peasants with pitchforks and torches. But political movements have to evolve and grow to do lasting good. In the last few years we’ve seen that the Tea Party and associated insurgent Republican movements were, unlike, say, the much ballyhooed Occupy movements, real political movements that could change the electoral landscape. What remains to be seen is whether these movements can offer real solutions to the country’s problems—as opposed to serving as protest movements that vent steam but don’t lead to lasting changes in the way the country works.
With the tax increases in Kansas, it looks as if Red Dawn 1.0 has come to an end in that state. The question now is whether Kansas Republicans can bring in an upgrade that fixes the bugs and enhances performance.