Tuesday, June 27, 2017
Saturday, June 24, 2017
David Harris draft resister:
"I am now 71 and the war that defined my coming of age is deep in my rearview mirror, but the question it raised, “What do I do when my country is wrong?” lives on.
I Picked Prison Over Fighting in Vietnam - The New York Times
by David Harris
Friday, June 23, 2017
The Torturers Speak - The New York Times
by The Editorial Board
Thursday, June 22, 2017
Opinion 732 - AVVO, Legal Zoom, Rocket Lawyer
NJ Supreme Court Committees: Advisory Committee on Professional Ethics, Attorney Advertising, Unauthorized Practice of Law
Responding to an inquiry by the New Jersey State Bar Association, the New Jersey Law Journal reports today that a binding joint Opinion of three New Jersey Supreme Court Committees has found that AVVO Legal Services fee plan violates the Court's Rules of Professional Conduct. The business model runs afoul of RPC 5.4 (a) bar on division of fees with non-lawyers and constitutes an impermissible referral fee in violation of RPC 7.2 (c).
New Jersey lawyers are barred from participating in AVVO Legal Services.
The Opinion is binding subject to discretionary review by the Supreme Court itself.
Legal Zoom and Rocket Lawyer were found to be permissible legal services plans, but lawyers may not participate until the plan is properly registered with the Supreme Court.
AVVO asserted a First Amendment defense but the Committees responded:
AVVO asserted that its marketing scheme is commercial speech that must be tested against the intermediate scrutiny standard applied to First Amendment commercial speech. The Committees are not restricting Avvo’s marketing; the focus of this Joint Opinion is on the for-profit lawyer referral program and sharing of a legal fee with a nonlawyer. The First Amendment does not protect lawyers who seek to participate in prohibited attorney referral programs or engage in impermissible fee sharing.
NOTICE TO THE BARLAWYER PARTICIPATION IN THE AVVO LEGAL SERVICE PROGRAM AND INLEGAL ZOOM AND ROCKET LAWYER LEGAL SERVICE PLANS
On June 21, 2017, the Advisory Committee on Professional Ethics, Committee on Attorney Advertising, and Committee on the Unauthorized Practice of Law issued a Joint Opinion (ACPE Opinion 732, CAA Opinion 44, UPL Opinion 54) stating that the legal service program operated by Avvo through its website is an impermissible lawyer referral service, in violation of Rules of Professional Conduct 7.2(c) and 7.3(d), and comprises improper fee sharing with a nonlawyer in violation of Rule of Professional Conduct 5.4(a). New Jersey lawyers may not participate in the Avvo legal service program. The Joint Opinion further states that LegalZoom and Rocket Lawyer appear to be offering legal service plans that have not been registered pursuant to Rule of Professional Conduct 7.3(e)(4)(vii). New Jersey lawyers may not participate in the LegalZoom or Rocket Lawyer legal service plans because they are not registered with the New Jersey Supreme Court (Administrative Office of the Courts).
Glenn A. Grant, J.A.D.,
Acting Administrative Director of the Courts
Tuesday, June 20, 2017
It should perhaps go without saying that the question of executive deference in the immigration order cases – about whether to defer to the executive’s interpretation and application of a statute, or to the executive’s statement of his motive for constitutional purposes – is importantly different from the doctrinal context in which deference arose in Ziglar. Here, in assessing whether or not to imply the existence of a cause of action to sue for money damages for violation of a constitutional right, the Court attended to longstanding (though perhaps not for much longer standing) criteria, including whether “special factors” might counsel hesitation before the courts imply a remedy when Congress had offered none. Finding such “special factors” present here (more on which anon), the 4-justice majority in Ziglar declined to recognize the availability of a civil remedy for constitutional violations surrounding plaintiffs’ post-9/11 detention. The result, however wrong, was in no sense surprising. It has famously been more than three decades since the Court has found a context in which it has thought a judicially implied right to sue for constitutional violations warranted. Put differently, in the modern Court “special factors,” whatever they may be, have invariably counseled hesitation. Somewhere in existing canons of judicial prudence, the modern Court has always found a reason why no remedy may be had.
Even so, the question is only whether “congressionally uninvited intrusion” is “inappropriate” action for the Judiciary to take. Stanley, 483 U. S., at 683. The factors discussed above all suggest that Congress’ failure to provide a damages remedy might be more than mere oversight, and that congressional silence might be more than “inadvertent.” Schweiker, 487 U. S., at 423. This possibility counsels hesitation “in the absence of affirmative action by Congress.” Bivens, 403 U. S., at 396.
Posted 12:02 PM by Deborah Pearlstein [link]
Sunday, June 18, 2017
|Airpocalypse from my hotel room December 2015|
UCLA's Alex Wang, a veteran of ten years as an attorney for an international environmental group based in Beijing has culled that experience. In a stunning new article in Ecology Law Quarterly he explores the structural contradictions in China's environmental control approach. Contradictions is always the watchword in looking at legal and political developments in China. Like any other country there are regional, sectoral, economic, and public health considerations in contention.
China's political system presents particular problems: effective governance requires environmental controls to protect the public health and productive capacity. The great expansion of policies favoring openness can be seen as a new method of regulation in which citizens and civil society organizations can be enlisted. But China's system is deeply intolerant of independent activity. The Chinese Communist Party's aspirational policies create deep socialist expectations for health, prosperity and opportunity. Engagement of the public serves that purpose. But it is constrained by the CPC's deep penetration of all social institutions - and the Party's full intention to remain the Party permanently in power. Wang explores these issues more comprehensively than anyone else has ever done. - gwc
Explaining Environmental Information Disclosure in China by Alex Wang :: SSRN
by Alex Wang (UCLA)
In recent years, China has adopted a range of measures for information disclosure or “open government information.” This comes as a surprise in an authoritarian system known more for secrecy and information control. Why do authoritarian leaders embrace such mechanisms, and how do state and society actors respond? This Article examines in particular the emergence of environmental information disclosure in China, and makes two main contributions to the scholarly debate on Chinese law and governance. First, this Article demonstrates how local demand for legal transplant can arise out of diverse (and sometimes competing) societal interests. State, society and international actors saw in information disclosure law a range of possibilities - the prospect of improved environmental performance, greater accountability to citizens, and strengthened state control. This interest convergence among strange bedfellows has enabled the seemingly paradoxical flowering of disclosure law in China. Second, this Article unpacks the social effects of information disclosure law in China’s authoritarian bureaucratic governance setting. Where interests are compatible in practice, disclosure has enabled state and society advocacy, and catalyzed new channels for public supervision in environmental regulation. It has also provided a powerful rights-based way for advocates to frame their actions. Yet for all its promise, information disclosure creates risks for those involved and reveals deep tensions in Chinese governance – between authoritarian and bottom-up approaches to rule, and the overarching policy objectives of social stability and performance. These tensions limit the utility of disclosure in practice, with serious potential consequences (e.g., weakened state legitimacy and a hobbled environment) for state and society actors alike.
Friday, June 16, 2017
If Rod Rosenstein Recuses: What Happens Next? - Lawfare
by Jack Goldsmith (Harvard L.S.) and Benjamin Wittes (Brookings Institution)
Tuesday, June 13, 2017
Monday, June 12, 2017
Saturday, June 10, 2017
Friday, June 9, 2017
The greatest Onion news video ever made parodies the debate over interrogation in the Bush administration. It depicts a panel discussion of whether housing detainees in a labyrinth with a violent minotaur constitutes torture. At one point, the spoof former Bush administration official delivers the immortal line: “Even if the Minotaur did act inappropriately, and I’m not saying it did, the United States cannot be held responsible for its actions, because it is a beastly minotaur and no chains can bind it.”
Thursday, June 8, 2017
Tuesday, June 6, 2017
Friday, June 2, 2017
Thursday, June 1, 2017
The Catastrophic Risks of Climate Change: The US Turns Its Back on the World - Lawfare
by Alice Hill (Research Fellow, Hoover Institution, Stanford University)
Wednesday, May 31, 2017
Monday, May 29, 2017
Film maker Ken Burns's history of the Vietnam will come out on PBS in the fall. We lost five classmates in the Vietnam war. My memories and thoughts are the same as my classmate and fellow PCV Bill Byrne. I think Ken Burns nails it. The corrosion of trust which plagues us today ~ and which elected the cynic DJT ~ can largely be traced to the catastrophe we inflicted on Vietnam.
The tragedy of Vietnam is not just the 58,000 American dead in an unnecessary war, but the horrific suffering we inflicted on the Vietnamese.
Same for the Iraq war, which, unlike Vietnam, was not fought by a conscript army.
Ken Burns and Lynn Novick: Vietnam’s Unhealed Wounds - The New York Times
by Ken Burns and Lynn Novick
Sunday, May 28, 2017
by Prof. Jed Shugerman (Fordham Law School)
For background: The “foreign emoluments” clause of the Constitution states, “[N]o person holding any office of profit or trust under them, shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state.” Art. I, Sec. 9, cl. 8. The “domestic emoluments” clause states: The President “shall not receive … any other Emolument from the United States, or any of them [any state].” I have written before about how President Trump is receiving both foreign and state emoluments. I am working with Mikhail, Jack Rakove, and Gautham Rao on an historians’ amicus brief on the legal meaning and context of the word “emoluments” in the eighteenth century.
Wednesday, May 24, 2017
The New York Times CAMBRIDGE, Mass. —
In a fierce, sometimes personal speech, Sally Q. Yates, the acting attorney general fired by President Trump for refusing to defend his travel ban, told the graduating class at Harvard Law School on Wednesday that her decision was a surprising but crucial moment when “law and conscience intersected.” Ms. Yates has become a hero to many Democrats for standing up to the president on one of his first and most contentious policy initiatives. Mr. Trump’s supporters regard her as just one of many holdovers from the Obama administration who have publicly and privately tried to sabotage his agenda. Her tenure as acting attorney general was supposed to be uneventful, Ms. Yates said during ceremonies the day before commencement. “Everything was to stay status quo.” Her former chief of staff had jokingly told her there would be time for, in her words, “a lot of long, boozy lunches.” But “the defining moments in our lives often don’t come with advance warning,” she said. “They can arise in scenarios we would have never expected, and don’t come with the luxury of a lot of time for you to go inside yourself for some serious introspection.”
Tuesday, May 23, 2017
Monday, May 22, 2017
Sunday, May 21, 2017
Two of our opinion writers, Mustafa Akyol in Istanbul and Wajahat Ali in the Washington, D.C. area, watched President Trump’s speech in Saudi Arabia this morning and discussed what they thought it means for the Middle East, American foreign policy and Muslims around the world.
Thursday, May 18, 2017
(b) The Special Counsel is authorized to conduct the investigation confirmed by then-FBI Director James B. Comey in testimony before the House Permanent Select Committee on Intelligence on March 20, 2017, including:(i) any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump; and(ii) any matters that arose or may arise directly from the investigation; and(iii) any other matters within the scope of 28 C.F.R. § 600.4(a).(c) If the Special Counsel believes it is necessary and appropriate, the Special Counsel is authorized to prosecute federal crimes arising from the investigation of these matters. (d) Sections 600.4 through 600. l 0 of Title 28 of the Code of Federal Regulations are applicable to the Special Counsel.
Wednesday, May 17, 2017
by Richard Painter and Norman Eisner
Monday, May 15, 2017
by Professor Jack Goldsmith (Harvard Law School; Assistant Attorney General, Office of Legal Counsel from 2003-2004, and Special Counsel to the Department of Defense from 2002-2003.)
The New York Times’s story on “What It Means to Work for Trump,” on top of Jim Comey’s firing last week, got me thinking again about how difficult it is for a lawyer who is a political appointee to act with integrity in the Trump administration. (I limit my comments here to government attorneys, and do not analyze the situation of other political appointees.)