Saturday, April 30, 2016

Daniel J. Berrigan, Defiant Priest Who Preached Pacifism, Dies at 94 - The New York Times

Our apologies, good friends, for the fracture of good order, the burning of paper instead of children. How many must die before our voices are heard, how many must be tortured, dislocated, starved, maddened? When, at what point, will you say no to this war?
Daniel J. Berrigan, Defiant Priest Who Preached Pacifism, Dies at 94 - The New York Times
The Rev. Daniel J. Berrigan, a Jesuit priest and poet whose defiant protests helped shape the tactics of opposition to the Vietnam War and landed him in prison, died on Saturday in New York City. He was 94.
His death was confirmed by the Rev. James Martin, a Jesuit priest and editor at large at America magazine, a national Catholic magazine published by Jesuits. Father Berrigan died at Murray-Weigel Hall, the Jesuit infirmary at Fordham University in the Bronx.
The United States was tearing itself apart over civil rights and the war in Southeast Asia when Father Berrigan emerged in the 1960s as an intellectual star of the Roman Catholic “new left,” articulating a view that racism and poverty, militarism and capitalist greed were interconnected pieces of the same big problem: an unjust society.
It was an essentially religious position, based on a stringent reading of the Scriptures that some called pure and others radical. But it would have explosive political consequences as Father Berrigan; his brother Philip, a Josephite priest; and their allies took their case to the streets with rising disregard for the law or their personal fortunes.
A defining point was the burning of Selective Service draft records in Catonsville, Md., and the subsequent trial of the so-called Catonsville Nine, a sequence of events that inspired an escalation of protests across the country; there were marches, sit-ins, the public burning of draft cards and other acts of civil disobedience.

At Yale, a Right That Doesn’t Outweigh a Wrong - The New York Times

This week Yale's leaders decided to retain John C. Calhoun as the name of one of its residential colleges.  Calhoun was the South Carolina Senator, and Vice President whose advocacy of slavery and nullifcation make him themost deplorable man ever to hold the office ofVice President of the United States of America,
Yale explained  that it would be whitewashing history to remove his name.  Instead they changed the names of two other colleges to Benjamin Franklin and Anna Pauline Murray - a black civil rights leader of great historical importance.  It's a balancing that I don't buy. Certainly students and others should learn of the respect once accorded to slavers by our leading instituions. But I think that retaining the name is a shame. -gwc
At Yale, a Right That Doesn’t Outweigh a Wrong - The New York Times
by Glenda Elizabeth Gilmore
"****his week at Yale, the arc of justice bent both ways. It reached back to sustain Calhoun’s name on a college where students of color have to live throughout their Yale experience. But it moved forward to sustain the Yale community with Pauli Murray’s lived imperative to fight injustice. Murray, not Calhoun, represents Yale values today; yet his name remains. Murray, not Calhoun, teaches us the lessons we need to learn about discrimination in all of its manifestations.
When A. Bartlett Giamatti, Yale’s president at the time, presented an honorary doctorate in divinity to Murray in 1979, he told her: “You are an inspiration to those who seek the upward way for the soul and for society. Others have always followed after.” It is only a matter of time before Calhoun will be forced to make his exit, and Murray will, once again, see her “lost causes found.” "

Bishops release religious freedom video for 50th anniversary of 'Dignitatis Humanae' | National Catholic Reporter

The United States Conference of Catholic Bishops has issued a statement on religious freedom on the 50th Aanniversary of the Vatican II statement Human Dignity an inspring call for freedom of consciousness at the height of the ecumenical movement.  Led by John Courtney Murray, S.J. the Church moved beyond centuries of intolerance.  The other epochal event of the time was the Church's renunciation of the anti-Semitism that had long scarred Christendom.  The story of the struggle is brilliantly recounted in John Connelly's From Enemy to Brother.

Unfortunately the culture warriors who dominate the U.S. Catholic Church have used this anniversary to pen a hyperbolic doom and gloom video.  By linking the grim situation of Christians in the Arab world to the "heroic" efforts of the Little Sisters of the Poor to avoid even the slightest complicity with contraception the Bishops' video shows how little they understand about conscience: that people have the right to control their procreation and they do all their other creative efforts. Sad! - gwc
Bishops release religious freedom video for 50th anniversary of 'Dignitatis Humanae' | National Catholic Reporter
by Tom Roberts

"Look at what's happening to Christians in the Middle East," says Lori, as shots of heavily armed forces appear in another unidentified foreign city. "Look at the non-violent but increasing exclusion of religion from the public square," he continued, as the video cuts to a shot of the Ten Commandments monument that was removed last year from the Oklahoma Capitol grounds because that state's supreme court decided it violated provisions of the state constitution.
Noticeably lacking from the video and its discussion of the erosion of religious liberty and religious presence in the public square were the visits to the United States by four of the most recent popes, dating back to Paul VI and including the 2015 visit by Pope Francis.
It perhaps would have been too contradictory of the video's thesis of cultural hostility toward religion and religious institutions to show Francis speaking to a special joint session of Congress, or being greeted at the airport upon arrival by President Obama. There followed several days of public adulation of the pontiff with throngs of people lining streets in Washington, D.C. and New York City and concluding with a huge outdoor Mass and other celebrations on Philadelphia's Benjamin Franklin Parkway, all of it amply protected by law enforcement paid for by the public."

Tuesday, April 26, 2016

NJ Justices Expand Fee-shifting Rule to Non-Clients

Rejecting the entreaties of the State Bar Association, the New Jersey Supreme Court expanded its fee shifting rule for prevailing legal malpractice plaintiffs.  The Court - which has since 1996 adhered to a judge-made rule that it slowly extended, first beyond negligence-based claims, to those involving other breaches of duty to clients.
But now in Innes v. Marzano-Lesnevich the court has extended the rule of Saffer v. Willoughby (1996) to  a non-client - the beneficiary of an escrow agreement breached intentionally by the defendant attorney.
Despite the slippery slope arguments of the dissenters the limitation to intentional breaches of duty by lawyers as escrow agents will in fact sharply limit the further expansion of the exception to the so-called American Rule.

The case arose from the decision of a successor attorney not to abide by the agreement of the parties - that the divorcing wife's attorney would hold the child's passport to prevent removal of the young child from the United States. The defendant lawyer handed over the passport to the mother without the father's consent, the child was taken to Spain where Spanish courts, ruling in the father's absence barred any contact with the young child of the marriage.  The mother was jailed for reusing to return the child to the U.S. and eventually convicted of child-napping.  A large verdict for plaintiff was awarded in the Superior Court,

I was plaintiff's expert on breach of fiduciary duty at trial.  After initially denying that she had handed over the escrowed passport in violation of the agreement, the defendant admitted it.  She asserted that the  parties had abrogated the signed escrow agreement.   I treated the breach as a flagrant violation of a duty implied in law when she retained the passport and agreement as successor attorney in a divorce case.  But the case was sent to the jury as a negligence case.  The Supreme Court has now remanded the case to the trial judge to make a specific fact finding on intentional breach.  The court observed that the record was sufficient to support such a finding, so it is likely that the trial judge will make the required finding.  - GWC

NJ Justices Expand Fee-shifting Rule to Non-Clients
by Michael Booth//New Jersey Law Journal.

A sharply divided New Jersey Supreme Court ruled April 26 that attorneys can be held liable for counsel fees if they are found to have intentionally breached their fiduciary duty to non-clients.
In a 3-2 ruling in Innes v. Marzano-Lesnevich, the majority expanded the fee-shifting standards set in its 1996 ruling in Saffer v. Willoughby, where the court said attorneys could be held liable for counsel fees when their clients are successful in legal malpractice actions.
Justice Lee Solomon, writing for the majority, said the ruling was a slight extension of Saffer and another small departure from the so-called "American rule"—the doctrine that says parties in civil cases are largely responsible for their own counsel fees.
Chief Justice Stuart Rabner and Justice Barry Albin joined in the ruling.

"Consistent with our case law, we reaffirm that a prevailing beneficiary may be awarded counsel fees incurred to recover damages arising from an attorney's intentional violation of a fiduciary duty," Solomon said.
Justice Jaynee LaVecchia, joined by Appellate Division Judge Mary Cuff, dissented, saying the majority's ruling represented a further deterioration of the American rule.
"In its present adjustment to our case law governing fee shifting, the majority deals the American rule yet another blow by expanding awards of attorneys' fees to non-clients of attorneys in escrow settings," LaVecchia said.
Justices Anne Patterson and Faustino Fernandez-Vina recused.

"We refine our tightly circumscribed exception to New Jersey's general rule against awarding counsel fees to prevailing parties and hold that, because defendants were acting in a fiduciary capacity as trustees and escrow agents for both Innes and Carrascosa, if they intentionally breached the fiduciary obligation to Innes by releasing Victoria's United States passport to Carrascosa without Innes' permission, defendants can be held liable for counsel fees," Associate Justice Lee Solomon said.

"Innes relied on defendants to carry out their fiduciary duties and responsibilities … and prevent Carrascosa from taking Victoria away from him," he said. "As the Appellate Division concluded, there is substantial support in the record from which to conclude that defendants' conduct was intentional."

Friday, April 22, 2016

CIA torture victims can sue psychologists who designed torture

CIA ​torture victims' case will go forward after judge hears claims

Wednesday, April 20, 2016

NJ High Court Says Ethics Head Can Probe Tossed Complaint - Law360

NJ High Court Says Ethics Head Can Probe Tossed Complaint - Law360
by Jeannie O'Sullivan
aw360, New York (April 19, 2016, 4:25 PM ET) -- The New Jersey Supreme Court ruled Tuesday that the state’s top attorney ethics official has the authority to investigate a complaint that was dismissed by a lower ethics official, handing a blow to a lawyer who must now answer to allegations that he misused social media in a client matter.

The unanimous opinion rejected attempts by attorneys John J. Robertelli and Gabriel Adamo to bar the director of the Supreme Court’s Office of Attorney Ethics from unilaterally reviewing and reversing decisions by the District Ethics Committees assigned to each Superior Court Vicinage to screen and prosecute complaints.

The crux of the attorneys' argument was the conflict between a court rule that gives the director broad discretion to investigate any grievance and another rule that bars appeals from a DEC secretary’s decision not to docket a grievance if the secretary finds doesn’t rise to an ethics violation. In deciding the matter, the justices analyzed the roles of the OAE, DECs and the state’s third attorney ethics arm, the high court’s Disciplinary Review Board, which serves as an appeals tribunal.

In the underlying case, Robertelli and Adamo defended the Oakland Police Department against plaintiff Dennis Hernandez, who accused a police officer of hitting him with a car. A DEC secretary of the later dismissed Hernandez’s complaint that Robertelli directed a paralegal to send him a Facebook friend request in order to unearth unflattering information about him. Hernandez then through his attorney asked OAE director Charles Centinaro to investigate the matter.

Centinaro agreed and issued a formal complaint, and the justices agreed that he had a right to do so.

Tuesday, April 19, 2016

US feels 'overwhelming frustration' with Israeli government, says Biden | US news | The Guardian

A refreshing bit of candor.  I wish Hillary Clinton would muster the same. - gwc
US feels 'overwhelming frustration' with Israeli government, says Biden | US news | The Guardian
by Peter Beaumont
Vice President Joe Biden delivered a pointed criticism of Israeli Prime Minister Benjamin Netanyahu before a Jewish-American group Monday, describing the White House’s feelings mostly as “overwhelming frustration.”

 “I firmly believe that the actions that Israel’s government has taken over the past several years—the steady and systematic expansion of settlements, the legalization of outposts, land seizures—they’re moving us, and more importantly, they’re moving Israel in the wrong direction,” Biden told a J-Street meeting in Washington, D.C. However, he also noted that the U.S. remains committed to Israel’s security. The comments come as talks between the two countries have been halted over a military-aid package, as Israel is demanding more money than the U.S. is willing to contribute.

Wednesday, April 13, 2016

Zubik v. Burwell Briefs Explore Potential Compromise

Zubik v. Burwell Briefs Explore Potential Compromise
by Professor Timothy Jost (Washongton & Lee; Institute of Medicine, National Academy of Sciences)

Implementing Health Reform. On March 24, 2016, the Supreme Court heard oral arguments in Zubik v. Burwell, the case through which religious organizations are challenging the requirement that they provide contraceptives as a woman’s preventive service. On March 29, 2016 in a highly unusual move, the Supreme Court ordered supplemental briefing on the question of:

. . . whether and how contraceptive coverage may be obtained by petitioners’ employees through petitioners’ insurance companies, but in a way that does not require any involvement of petitioners beyond their own decision to provide health insurance without contraceptive coverage.

The Court suggested, for example, that the petitioners could inform their insurers of their objection to contraceptive coverage and their insurers could provide the coverage for free to employees or students without any further involvement of the petitioners.

The issue in the case is, of course, whether the Religious Freedom Restoration Act (RFRA) requires a further accommodation of religious organizations’ objections to providing contraceptives to their employees and students beyond that the government is already offering. Under the current accommodation, the organizations must notify the government of their objection to coverage. The government then requires the insurers and third party administrators that administer the organizations’ health plans to provide contraceptive coverage without further involvement by the organizations.

The petitioners argue that the current arrangement substantially burdens their religious freedom and is not the least restrictive means of furthering a compelling governmental interest, as required by RFRA. The oral argument indicated that Justices Kagan, Ginsburg, Breyer, and Sotomayor were prepared to reject their claim while Justices Alito, Roberts, and Thomas were sympathetic, with Kennedy undecided. The request for further briefing is likely an attempt to find a compromise position acceptable to at least five of the justices.

A first round of the requested briefs were filed by both the petitioners and the government on April 12. The petitioners’ brief indicates that they are open to an accommodation where they would contract for insurance coverage that did not cover contraceptives but their insurers would independently provide contraceptive coverage to their enrollees, without cost but with separate enrollment processes, insurance cards and contracts, payment sources, and communication streams. They suggest, for example, that their insurers could mail out cards allowing enrollees to opt in to contraceptive coverage through a process like activating a credit card.

The government in its brief pointed out that the process the Court described was very close to the accommodation already offered. The one difference is that the religious organizations would notify their insurers rather than the government. The government contended that this arrangement was problematic but potentially workable. The government’s brief concludes with an extended plea to settle this issue once and for all so that the hundred or so cases it has been fighting can finally get resolved.

The parties may be close to offering the Court a compromise, therefore, with respect to insured plans, which is what the Court requested. They remain miles apart, however, with respect to self-insured plans, with the petitioners steadfastly resisting offering contraceptive coverage through their self-insured plans and the government resisting an accommodation that leaves women enrolled in self-insured plans without seamless coverage.

It may be noteworthy, however, that the Court only requested further briefing with respect to insured coverage. It is perhaps the case that there is no less restrictive alternative with respect to self-insured coverage that would both accommodate petitioners’ religious beliefs and the need for their employees and students to access seamless coverage of contraceptives.

If the Court accepts the compromise with respect to insured coverage to which the parties seem to agree, the religious organizations would have the option of either purchasing insurance for their employees or students or arranging self-insured coverage through a church plan. The government admits that church plans, which are not subject to The Employee Retirement Income Security Act of 1974 (ERISA), are not directly subject to the mandate. (The Little Sisters petitioners in fact cover their employees through a church plan and are thus not subject to the mandate they are challenging). The petitioners would not have the option, however, of providing self-insured coverage through a conventional third party administrator, except through the present accommodation.

Although many employers offer self-insured coverage, many also offer insured coverage. Indeed, one third of workers are employed by firms that offer insured coverage. Perhaps a resolution where religious organizations that want to offer their employee contraceptive-free coverage must do so through insured (or church) plans is the least restrictive solution to a seemingly intractable controversy.
New ACA Affordability Thresholds

The Internal Revenue Service (IRS) has updated several indices used for calculating eligibility for Affordable Care Act benefits or exemptions from ACA penalties for 2017. For 2017, employer-sponsored coverage will only be considered unaffordable, thus rendering an employee eligible for premium tax credits, if its cost to the employee exceeds 9.69 percent of the employee’s household income. This percentage was 9.50 in 2014 and 9.66 in 2016.

For 2017, available minimum essential coverage will be considered unaffordable for purposes of the individual responsibility affordability exemption if its cost exceeds 8.16 percent of household income, after the application of employer contributions and available premium tax credits. This amount compares to 8 percent in 2014 and 8.13 percent in 2016.

Finally, the IRS released the applicable percentage table for 2017. This is the table that determines what proportion of household income an individual or family must spend on health insurance premiums before premium tax credit assistance becomes available.

These indices are increased each year to reflect the excess in the rate of premium growth in the previous year over the rate of income growth. The procedure for making these adjustments was established by a 2014 Revenue Procedure.

Louisiana ready to move forward with restoration now that BP oil spill is settled | Louisiana Record

Louisiana ready to move forward with restoration now that BP oil spill is settled | Louisiana Record
BATON ROUGE – With the $20 billion BP oil spill settlement now a reality, Louisiana can move forward with long-expected restoration plans, a state spokeswoman said during a recent interview.

"Next steps for funds associated with natural resource damages include drafting the first in a series of project-specific restoration plans for public review and approval," Outreach and Engagement Director Jenny Kurz, of the Coastal Protection and Restoration Authority of Louisiana, said in an email interview with the Louisiana Record. "Similarly, projects to be funded with dollars subject to the RESTORE Act will be identified and publicly vetted."

Kurz said plans for the funds have been in the works since long before the settlement agreement was reached.

"Discussions with the public and partner agencies regarding potential projects for inclusion in oil spill restoration have been underway since 2013 and have continued to be refined as additional information was received," she said.

Monday, April 11, 2016

Pathfinders: A Global History of Exploration

by Josh Marshall

Josh Marshall celebrates Pathfinders: A Global History of Exploration by Felipe Fernández-Armesto.
The book tells the story of the explorers - by land and sea who populated the world as they found their way from Africa to every habitable place on earth.
 Why did the west come to dominate world oceanic trade?  Well, the wealth was in the east.  They had the stuff we wanted,not vice versa.

- G

Kerry Visits Hiroshima Memorial and Underlines U.S.-Japan Alliance - The New York Times

It is a good thing that John Kerry visited the Hiroshima Memorial and that President Barack Obama hopes to do the same.  Maybe after the election because Americans don't have the courage to admit that the bombing of Hiroshima and Nagasaki were unprecedented war crimes which we committed.  If any nation actually used nuclear weapons today it would be vilified universally.  And everyone knows it.  That's why nuclear weapons development and even treaties like the Iran accord arelittle more than kabuki theatre - into which hole enormous resources are dumped. - gwc

Kerry Visits Hiroshima Memorial and Underlines U.S.-Japan Alliance - The New York Times

by Jonathan Soble
HIROSHIMA, Japan — Secretary of State John Kerryattended a memorial ceremony in Hiroshima on Monday for victims of the American atomic bombing 71 years ago, becoming the highest-ranking United States administration official to visit the site of one of the most destructive acts of World War II.
The visit is likely to intensify speculation about whether President Obama will go to Hiroshima during a planned trip to Japan next month. Mr. Obama would be the first sitting American president to visit the city, a decision that would resonate deeply in Japan but would be controversial at home.
“Everyone should visit Hiroshima, and everyone means everyone,” Mr. Kerry said at a news conference on Monday in response to a question about whether Mr. Obama would go. He said that the president had been invited by Japanese officials and that he would like to visit someday, but Mr. Kerry added: “Whether or not he can come as president, I don’t know.”
Mr. Kerry spoke after he and other leading diplomats from the Group of 7 industrialized countries toured Hiroshima’s atomic bomb museum, laid flowers at a cenotaph in its Peace Memorial Park and examined the former exhibition hall that stood directly under the atomic blast and has been preserved as a skeletal monument. He called the experience “stunning” and “gut-wrenching.”

Saturday, April 9, 2016

Hastert's Rise= The Irony and the Awfulness

The pedophile Dennis Hastert's rise to Speaker of the House - second in line to President grew out of the GOP's dedication to destroying Bill Clinton (and his wife).  After a compliant federal judge gave Kenneth Starr a boundless mandate to go after the President they got his head on a silver platter.  A confidant of Monica Lewinski led her into a trap like the spider to the fly.  Clinton tried to bluff his way out of it.  (I did not have sexual relations with that woman.  Technically true but false.)
When he got to the grand jury everyone said that taking the Fifth was politically impossible.  [To my knowledge I am the only one who wrote a piece saying he should - and that he would face impeachment if he testified falsely. - Asbury Park Press - August , 1998].

The upshot of the Republican Party's demand for marital fidelity led to Denny Hastert's rise to Speaker.  Turned out that marital fidelity was in short supply on the accusers' side: first Newt Gingrich  stepped down (extra marital affair with the then 20-something [now bejeweled] Callista).  Then the GOP elected Robert Livingstone who quit before he was sworn in because he too was getting some on the side.  (He was replaced in Congress by David Vitter - a regular customer of the `D.C. Madame'.) But I digress.
Desperate for an unsullied Speaker the GOP turned to the man they called Coach - Dennis Hastert a back bencher with no history as a womanizer.   He served eight years adhering to the GOP orthodoxy - abstention not birth control, family values, no to homosexuals rights,  celebration of traditional marriage, etc.  
Now we know the sad truth -  it was young boys that the Coach craved.
- gwc

The Irony and the Awfulness by Josh Marshall // Talking Points Memo

Court Confirms BP Settlement with U.S, States in $20.8 billion Deal

Tulsa World Editorial: BP settlement a reminder of the consequences of negligence - Tulsa World: Editorials

With the filing this week of final judgment adopting the consent decree the litigation between BP Exploration and the United States, and the States of Alabama, Florida, Louisiana, Mississippi and Texas has come to an end.

Some, like the Providence Journal lament the $20.8 billion settlement find treatment of BP to be too mild.  But those sums are aside from the massive Deepwater Horizon Settlement Program - a separate class action by private parties.
The governmental settlements sums consist of civil penalties and natural resource damages suffered by the States and the United States.  They include
without limitation: (i) the costs of assessing injury, destruction, loss of, or loss of use of Natural Resources and the resulting damages; (ii) the costs of restoration, rehabilitation, or replacement of injured, destroyed, or lost Natural Resources and natural resource services or of acquisition of equivalent resources; (iii) the costs of planning and monitoring such restoration activities; and (iv) any other compensation for diminution in value or loss of use or non-use values of Natural Resources. 
The $5.5 billion civil penalties payable to the U.S. in equal installments over fifteen years - as are the natural resource damages totaling $7.1 billion. Both accrue interest at market rate on 2-3 year government securities.  There is a five year $350 million nine year payment schedule for past due natural resource damage. $250 million additional payments are to be made in annual instalments over eight years.

It is easy to imagine a tougher result but thoughts of criminal prosecution have mostly been put to rest by the difficulty of finding criminal intent.
Editorial: Billions from BP - Opinion - - Providence, RI
  Roughly six years after it was physically stanched, the BP oil spill came to a quiet official conclusion last week. On Monday, a federal judge in New Orleans gave final approval to a settlement estimated at $20.8 billion. Of that amount, $5.5 billion consists of penalties under the Clean Water Act. Much of the rest will be spent on compensation and repairs for environmental damage. Some will go toward reimbursing government costs.
In 2010, millions of gallons of oil spilled into the Gulf of Mexico following a drilling-rig explosion that killed 11 workers. Under the settlement with BP, five Gulf states and numerous local governments will receive payments over the next dozen years. The funds will enable them to ramp up vital restoration work in coastal areas.
The Justice Department has described the agreement, initially announced last July, as the largest environmental settlement in U.S. history.
For a long-suffering region of the country, the settlement’s clearing of the way for environmental repairs is certainly a great step forward. Many Americans well recall scenes of soiled beaches, damaged fisheries and injured wildlife. Hotels, restaurants and related businesses suffered as tourists stayed away for months. Under a separate but uncapped 2012 agreement, BP continues to settle claims from business owners and residents who say they were harmed.
Yet only a handful of BP employees were criminally charged in the spill; they were either acquitted or received light punishment. The company itself paid $4 billion in criminal penalties tied to the rig workers’ deaths. But for the most part, individuals were not held accountable.

Obama can appoint Merrick Garland to the Supreme Court if the Senate does nothing - The Washington Post

Obama can appoint Merrick Garland to the Supreme Court if the Senate does nothing - The Washington Post

Gregory L. Diskant is a senior partner at the law firm of Patterson Belknap Webb & Tyler and a member of the national governing board of Common Cause.
On Nov. 12, 1975, while I was serving as a clerk to Supreme Court Justice Thurgood Marshall, Justice William O. Douglas resigned. On Nov. 28, President Gerald R. Ford nominated John Paul Stevens for the vacant seat. Nineteen days after receiving the nomination, the Senate voted 98 to 0 to confirm the president’s choice. Two days later, I had the pleasure of seeing Ford present Stevens to the court for his swearing-in. The business of the court continued unabated. There were no 4-to-4 decisions that term.
Today, the system seems to be broken. Both parties are at fault, seemingly locked in a death spiral to outdo the other in outrageous behavior. Now, the Senate has simply refused to consider President Obama’s nomination of Judge Merrick Garland to the Supreme Court. Meanwhile, dozens of nominations to federal judgeships and executive offices are pending before the Senate, many for more than a year. Our system prides itself on its checks and balances, but there seems to be no balance to the Senate’s refusal to perform its constitutional duty.
The Constitution glories in its ambiguities, however, and it is possible to read its language to deny the Senate the right to pocket veto the president’s nominations. Start with the appointments clause of the Constitution. It provides that the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the supreme Court, and all other Officers of the United States.” Note that the president has two powers: the power to “nominate” and the separate power to “appoint.” In between the nomination and the appointment, the president must seek the “Advice and Consent of the Senate.” What does that mean, and what happens when the Senate does nothing?

Thursday, April 7, 2016

William Kelley’s cynical claim that under President Bush a Garland nomination would have been "laughed out of the Oval Office”//Richard Painter //Legal Ethics Forum

William Kelley - a right wing Notre Dame law prof - in a letter to the editor attacked Richard Painter for arguing that a centrist would ever have been chosen for the Supreme Court by George W. Bush.  Painter responds here. Looking at Sam Alito's role on the Court I regret that we didn't back Harriet  Miers when her nomination and competence were savagely attacked from the right. - gwc
Legal Ethics Forum: William Kelley’s cynical claim that under President Bush a Garland nomination would have been "laughed out of the Oval Office”
by RichardPainter (University of Minnesota School of Law, former White House Ethics Counsel under GW BusH
His letter to the New York Times is here:
He is responding to my op-ed here:
Kelley describes a President Bush who was so rigidly committed to “conservative” judicial philosophy that he would have refused to nominate someone like Judge Garland to the Supreme Court, even if he had needed to get a nominee confirmed by a Democratic controlled Senate (that is the scenario I was discussing in my op-ed).  Kelley then goes even further to say that President Bush would have laughed at any anyone who even suggested nominating Garland.
That is not the President Bush I knew when I was in the White House (the same time Kelley was there).  Laughing at other people’s ideas is not the way I saw President Bush conduct himself in the Oval Office or anywhere else. 
President Bush’s own nominations to the Supreme Court also reveal a broader vision of the Court.  This is true even though all of his nominations were made when Republicans controlled the Senate and the President did not necessarily need to look for moderate nominees.
Chief Justice John Roberts was President Bush’s first choice for the first open seat on the Court.  Harriet Miers was his first choice for the second open seat on the Court.  Roberts and Miers are very different people, but one thing they share in common.  Both infuriated ultra conservative Republicans -- Roberts since he joined the Court and Miers at the time of her nomination.
Both Donald Trump and Ted Cruz are dumping on Roberts in the campaign.  Several Senators are now piling on.  Senator Charles Grassley of Iowa is Chairman of the Senate Judiciary Committee and is doing more than any other senator to block a vote on the Garland nomination.  Here is what he has to say about Chief Justice Roberts:
Apparently Chief Justice Roberts “politicized” the Supreme Court by refusing to rule against the Obama Administration in enough cases, particularly on health care.
Are Grassley and some of his colleagues worried that Judge Garland could be another Chief Justice Roberts?
I won’t repeat here diatribes – and falsehoods – recited by right wing pundits and politicians about Harriet Miers at the time of her nomination.  Part of their argument was that Miers was not qualified (she had not previously been a judge, yet several Supreme Court Justices have not previously been judges).  But it was her lack of an ideologically conservative record that conservatives were really worried about. 
Kelley advised President Bush on this nomination.  President Bush was aware of what ideological conservatives and other interest groups wanted, and yet President Bush nominated Miers anyway.  The conservatives had a fit, the Democrats let the nomination twist in the wind, and it was withdrawn.  President Bush’s second choice, Justice Samuel Alito, was more to the conservatives liking.
Kelley casts Bush in an unflattering light.   His depiction of the former President may provide convenient cover for Senators who don’t’ want to do their job and hold a hearing on President Obama’s nomination of Judge Garland.  But the notion that Bush would have laughed at the idea of a Justice Garland – or at the idea of nominating a moderate like Garland to the Court -- isn’t true.

Cahill Can't Dodge Asbestos Victims' Spoliation Claims - Law360

Cahill Can't Dodge Asbestos Victims' Spoliation Claims - Law360
by Aebra Coe

Law360, New York (April 6, 2016, 2:58 PM ET) -- A New Jersey federal judge on Wednesday shut down Cahill Gordon & Reindel LLP’s efforts to escape a proposed fraud class action accusing it of conspiring with former client BASF to destroy evidence and conceal the fact that the company’s products contained asbestos.

U.S. District Judge Jose L. Linares rejected Cahill’s and BASF Catalysts LLC’s motions to dismiss fraud and fraudulent concealment claims brought against them over the alleged plot to suppress future asbestos lawsuits against the multinational chemical manufacturing corporation by destroying and manipulating evidence, rejecting their contention thatasbestos victims had failed to properly plead their case.

“Defendants had a clear duty to preserve that ran to a specific civil plaintiff, and then allegedly destroyed the evidence that would be required by similar individuals in the numerous lawsuits that were reasonably foreseeable,” Judge Linares said.

The matter of whether the plaintiffs’ allegations are true or not is yet to be seen, but, according to the court, discovery should proceed in order to determine the factual aspects of the case.

The Third Circuit ruled in September 2014 that a New Jersey federal judge had improperly dismissed the claims of fraud and fraudulent concealment against BASF and Cahill, after finding allegations surrounding the mid-1980s destruction of testing records showing asbestos in talc mined in Virginia were well-pled.

After the plaintiffs in the case filed their amended complaint in the district court litigation, the defendants renewed their motions for dismissal, arguing that the claims should be dismissed outright for lack of support.

Wednesday, April 6, 2016

China’s Maritime Courts: Defenders of ‘Judicial Sovereignty’ | The Diplomat

China’s Maritime Courts: Defenders of ‘Judicial Sovereignty’ | The Diplomat
by Susan Finder
China’s creation of an international maritime judicial center was, to the foreign audience, one of the most controversial issues addressed in Supreme People’s Court (SPC) President Zhou Qiang’s work report to the National People’s Congress in March 2016.
What did Zhou mean by this? When a spokesman for the Foreign Ministry was asked about it, he referred his audience to the competent authorities for details.
This article drills down on what the “competent authorities,” that is Zhou Qiang, the SPC and more broadly, the Chinese government, have in mind.
First, the concept is not intended to replace the Law of the Sea Tribunal or other forums for resolving international legal disputes. None of the SPC documents on this topic have mentioned that, and regardless that would be an initiative coming out of the Ministry of Foreign Affairs. Their international lawyers have enough on their hands, and setting up a new international court would require other countries to agree to it.
From the statements by Zhou and Chinese experts on international law, as well as a recent SPC maritime court conference, promoting China to be an international maritime judicial center means that the Chinese government wants to increase the international influence and prestige of the Chinese maritime courts, rather than create a new institution. As his rationale, Zhou points to the fact that the Chinese maritime courts hear the most cases of any national maritime court system worldwide. In 2015, the maritime courts accepted about17,500 cases, with cases involving foreign parties accounting for about 15 percent.
This initiative by the SPC is linked to larger Party/government policy, as well as issues of national sovereignty and security, but also raises a series of legal issues, such as the range of cases the Chinese maritime courts hear, China’s participation in international maritime conventions, and the challenges that the Chinese maritime courts face in improving their prestige.
The SPC’s Maritime Courts Initiative
Increasing the role of the Chinese maritime courts in international maritime dispute resolution is linked to broad language in the Fourth Plenum Decision, the government’s “One Belt, One Road” initiative, and China’s major role as a shipping power, as well as a 2015 SPC policy document on promoting the maritime courts and foreign-related functions of the courts.
The Fourth Plenum Decision contains the following sentence:
Vigorously participate in the formulation of international norms, promote the handling of foreign-related economic and social affairs according to the law, strengthen our country’s discourse power and influence in international legal affairs, use legal methods to safeguard our country’s sovereignty, security, and development interests.
Promoting the Chinese maritime courts as an international center for maritime dispute resolution is thus part of overall government policy to strengthen China’s voice and influence in international legal affairs and use law to protect and promote its sovereignty, security, and interests.
In a policy document issued last year that sets out the role the Chinese courts are to play in supporting the government’s One Belt, One Road initiative (the SPC OBOR Document),the SPC called on the maritime courts to promote the government’s maritime power strategy by focusing on port construction, shipping finance, marine cargo, marine ecological protection, and other maritime cases as the government promotes its Maritime Silk Road. The SPC OBOR Document also calls for Chinese courts to exercise their jurisdiction and protect it, while respecting the rights of foreign parties to select a dispute resolution forum.
A second SPC policy document sets out the goals for the foreign-related and maritime operations of the Chinese courts to support the national strategy of an open economy and a maritime power. It specifically mentions the creation of an international maritime judicial center, and greater positive international publicity about the Chinese courts.
The Chinese maritime courts assert jurisdiction geographically over all the marine waters that China claims, be they in the South China Sea or East China Sea. For that reason, a robust assertion of jurisdiction can be used to strengthen or assert national sovereignty. An example that Zhou used in his NPC work report illustrates this aspect very well. Zhou mentioned a case in which a Chinese maritime court had mediated a settlement between a Chinese fishing vessel and a Panama-registered freighter that had collided in the waters near the Senkaku (Diaoyu) Islands, waters over which China claims jurisdiction (despite Japanese government protests over the case).
Foreign Cases in the Maritime Courts
However, sovereignty issues aside, the growing number of foreign cases in China’s maritime courts are related both to China’s role as a major shipping power and Chinese law on related legal issues. The significant increase in maritime cases generally, according to one expert, is related to the downturn in domestic and international shipping markets, leading many business deals to go sour and crew unpaid.
There are many reasons that foreign parties find themselves in the Chinese maritime courts. Some have to do with parties voluntarily submitting their case to the Chinese courts, but other reasons are related to Chinese law. Foreign parties may find themselves in Chinese maritime court, or in both a foreign and Chinese maritime court, even when the parties had agreed to have their shipping dispute heard by a foreign court.
In international maritime practice, parties often include choice of court as well as choice of law clauses in the bills of lading or other agreements. Under Chinese law, however, a Chinese court sets aside the law to which the parties have agreed when looking at whether the choice of court is valid — and applies Chinese law in making its decision.
Chinese Civil Procedure Law requires the choice of court to have an “actual connection with the dispute.” In maritime practice, however, it is not unusual for parties that are not English or whose transaction has no connection with the United Kingdom to choose to have their documentation governed by English law and disputes resolved by the English courts. Additionally, Chinese law allows what is known as “parallel proceedings,” which means that a Chinese court may accept a case even if a foreign (including Hong Kong) court has jurisdiction and litigation is ongoing.
As a result of this interaction between international maritime practice and Chinese law, many cases have arisen in the Chinese maritime courts, as well as multi-jurisdictional litigation, in which the Chinese court decided that the choice of the English, Hong Kong, or other courts had no connection with the dispute and the Chinese court had jurisdiction. It is true that on a worldwide basis, shipping and maritime matters often give rise to forum shopping, conflicting litigation, and protective domestic legislation. China’s restrictive rules on the choice of a neutral forum and options for limiting forum-shopping, however, arguably provide a bulwark for the protection of what is referred to as “Chinese judicial sovereignty.”
Challenges For the Maritime Courts
Despite China’s stated wish to become an international maritime judicial center, Chinese maritime courts face several challenges in making themselves market leaders in maritime dispute resolution, including insufficient transparency, and judgments with less detailed reasoning than their counterparts overseas. Moreover, China is not a party to the principal international conventions on the carriage of goods by sea, although it has incorporated many of their provisions into its Maritime Code. Plus, the willingness of Chinese courts to take jurisdiction notwithstanding the parties’ choice of law and court, even when proceedings are ongoing elsewhere, gives the rest of the professional and business world a negative impression.
That being said, according to comments by at least one experienced maritime lawyer, international maritime lawyers (and their clients) have become more familiar with China as a jurisdiction and can anticipate the litigation risk premium of settling a case in China as compared to Hong Kong or London, thanks to the critical role played by competent Chinese maritime lawyers. The SPC is seeking to boost international confidence in its maritime courts through special initiatives, including: promoting greater transparency and more information in English, including English language maritime court websites with English language information on the docket and translations of cases or case summaries, white papers, as well as more “typical cases.”
The Way Forward
SPC President Zhou Qiang should recognize that an important hub for international maritime dispute resolution is already in China—the Hong Kong SAR. None of the statements by SPC leaders calling for a greater voice in international legal maritime matters or increasing Chinese maritime legal soft power have acknowledged the role of Hong Kong in international maritime dispute resolution.
Hong Kong’s independent judiciary, the high quality of the legal community in Hong Kong, and Hong Kong’s participation in international maritime conventions mean that international litigants look to Hong Kong as a reliable jurisdiction to have their dispute heard.
The Chinese Academy of Social Sciences, in a recent report evaluating the  transparency of the maritime courts, noted that London and Singapore are generally recognized as international maritime judicial centers because of their well developed legal systems and timely issuance of cases. Hong Kong should be added to that list as well, according to the maritime lawyer mentioned above.
As for the Chinese maritime courts, court reforms and special policies for the maritime courts are dealing with some of  their underlying issues, including providing greater judicial autonomy and greater transparency, regular publication of judgments, and more training for Chinese maritime judges, who are generally well regarded within China.
The deeper issues relating to choice of court clauses and parallel proceedings (which also affect Hong Kong) will require focused domestic review of these issues. A cross-border perspective from Hong Kong, Singapore, and London, and other major maritime jurisdictions could be helpful in that process.
Susan Finder blogs as the Supreme People’s Court Monitor. She is a Visiting Professor at the School of Transnational Law of Peking University and is affiliated with the Centre of Chinese Law of the University of Hong Kong, where she was a Visiting Professor in the fall of 2015.  She was in practice for many years with the international law firm Freshfields, Bruckhaus and Deringer, before which she published the first comprehensive analysis (in English) of the Supreme People’s Court, while teaching at the City University of Hong Kong.

Clinton Needs Sanders John Judis - TPM

Clinton Needs Sanders
by John Judis // Talking Points Memo

If Sanders were to drop out now, or after April 26, Clinton would probably spend her time fundraising among the billionaire class and holding endless meeting with the same advisors who are currently responsible for her lackluster campaign. She needs to find a way to appeal to someone other than African American senior citizens who will vote for her anyway. Continuing to campaign against Sanders is the best way to do that.
Clinton's campaign seems stuck in the mud thematically. I listened to some of her speeches the last week. I heard her appealing to voters to support her because she is a Democrat and Sanders is not really. Look, America isn't Europe circa 1960. We don't have membership parties, and partisan allegiance has been declining since the election of 1896. If your main appeal is that you have a D next to your name, you are going to lose.
I also heard the appeal from Clinton and her boosters that her programs are practical and pragmatic and that his are airy, grandiose and totally impractical. Clinton seems to be arguing that the test of a good campaign proposal is that it be able to be inserted in the annual budget message that the President sends to Congress in February -- a message that is never read and that is inevitably pronounced dead on arrival. It's no wonder that Sanders is attracting young voters. They know Washington is currently gridlocked, but they want to know where a presidential candidate wants the country to go in five, ten, or fifteen years. What are the larger changes on the basis of which incremental changes could be made? They know the current Congress isn't going to help fund free tuition for public colleges, but they (rightly!) think that the country has to move in that direction. Think of how conservative Republicans like Ronald Reagan won over the electorate in the 1970s. Or Bill Clinton in 1992. Hillary Clinton still needs to find a message for 2016 -- one that will energize rather than enervate the electorate.

Evidence, Policy, and E-Cigarettes — Will England Reframe the Debate? — NEJM

 Because of the moralistic culture in which we live our tobacco control policy has been "just say no".  Blame is our approach to teen pregnancy and drug use.  Britian focuses on prevention. - gwc
Evidence, Policy, and E-Cigarettes — Will England Reframe the Debate? — NEJM

Sharon H. Green, M.P.H., Ronald Bayer, Ph.D., and Amy L. Fairchild, Ph.D., M.P.H.
N Engl J Med 2016; 374:1301-1303April 7, 2016DOI: 10.1056/NEJMp1601154
 Comments open through April 13, 2016
Audio Interview
Interview with Dr. Amy Fairchild on public health recommendations regarding electronic cigarettes in England and the United States.
Interview with Dr. Amy Fairchild on public health recommendations regarding electronic cigarettes in England and the United States. (10:53)
Tobacco-control advocates have been embroiled in a multiyear controversy over whether electronic cigarettes threaten the goal of further reducing tobacco smoking or offer the possibility of minimizing harm for people who cannot or will not quit smoking conventional cigarettes. England and the United States have now staked out very different positions.
The international landscape was dramatically reshaped in August 2015, when Public Health England (PHE), an agency of England’s Department of Health, released a groundbreaking report, “E-cigarettes: an evidence update.” With its claim that e-cigarettes are 95% less harmful than combustible cigarettes, the report attracted headlines internationally. It recommended that smokers who cannot or will not quit smoking tobacco try e-cigarettes and expressed great concern that the public perceived the two products as posing equal risks. Strikingly, the report underscored e-cigarettes’ potential to address the challenge of health inequalities, a central mission of PHE, stating that these devices “potentially offer a wide reach, low-cost intervention to reduce smoking and improve health in these more deprived groups in society where smoking is elevated.”1
The report — written by tobacco-addiction researcher Ann McNeill of King’s College London — reflected the position on e-cigarettes that had been agreed to by the U.K. public health community. Yet the editors of the Lancet asserted that though PHE claims to protect the nation’s health and well-being, it has failed to do so with this report. Two public health scholars writing in the BMJalso denounced the report, seizing on the methodologic limitations of one of the many studies on which the evidence review had relied, underlining the potential conflicts of interests acknowledged in the paper, and roundly condemning PHE for failing to meet basic evidentiary standards. Invoking the precautionary principle, the authors asserted that e-cigarette proponents bore the burden of proving that these products are not harmful. In contrast, 12 prominent U.K. public health organizations, including Cancer Research U.K. and the British Lung Foundation, defended PHE. Their joint press release underscored a public health responsibility to encourage smokers to switch to e-cigarettes, perhaps with the help of local smoking-cessation programs.
As dramatic as the report’s recommendations appear to be, they built on the United Kingdom’s long-standing commitment to harm reduction. In 1926, the Ministry of Health’s Rolleston Committee concluded that drug addiction was an illness that should be treated by physicians, sometimes with a minimal dose of drugs in order to prevent withdrawal symptoms. When AIDS came to the United Kingdom in the 1980s, the first government report on human immunodeficiency virus (HIV) infection among injection-drug users encouraged safer drug practices. Meanwhile, the United States took a prohibitionist position. Tight narcotic regulation and refusal to provide narcotics to addicts as treatment or maintenance defined the U.S. posture for decades....