Monday, August 21, 2017

The Real Threat to America Comes From Americans | Foreign Policy

The Real Threat to America Comes From Americans | Foreign Policy
by Kim Ghattas
This month, a man was arrested in Oklahoma City for trying to detonate 1,000 pounds of explosives in a cargo van parked downtown. The attack, he hoped, would cripple the government and start a revolution. Last October, three men were arrested in Kansas for plotting to bomb an apartment complex and a mosque using four cars laden with explosives.
In these febrile days, where terrorists have sought to wreak fear and chaos from Orlando to Paris, and now Barcelona, you’d expect wall-to-wall coverage on cable news about these foiled plots. Terrorism experts would be wheeled out to opine for hours on all angles, from the explosives used to the profile of the would-be attackers to how and why they were radicalized.***

Sunday, August 20, 2017

W.E.B. DuBois on Robert E. Lee – CIVIL WAR MEMORY

W.E.B. DuBois on Robert E. Lee – CIVIL WAR MEMORY

Robert E. Lee
Each year on the 19th of January there is renewed effort to canonize Robert E. Lee, the greatest confederate general. His personal comeliness, his aristocratic birth and his military prowess all call for the verdict of greatness and genius. But one thing–one terrible fact–militates against this and that is the inescapable truth that Robert E. Lee led a bloody war to perpetuate slavery. Copperheads like the New York Times may magisterially declare: “of course, he never fought for slavery.” Well, for what did he fight? State rights? Nonsense. The South cared only for State Rights as a weapon to defend slavery. If nationalism had been a stronger defense of the slave system than particularism, the South would have been as nationalistic in 1861 as it had been in 1812.
No. People do not go to war for abstract theories of government. They fight for property and privilege and that was what Virginia fought for in the Civil War. And Lee followed Virginia. He followed Virginia not because he particularly loved slavery (although he certainly did not hate it), but because he did not have the moral courage to stand against his family and his clan. Lee hesitated and hung his head in shame because he was asked to lead armies against human progress and Christian decency and did not dare refuse. He surrendered not to Grant, but to Negro Emancipation.
Today we can best perpetuate his memory and his nobler traits not by falsifying his moral debacle, but by explaining it to the young white south. 

Saturday, August 19, 2017

Trump's Charlottesville Reaction Emboldens the Far-Right - The Atlantic

Trump's Charlottesville Reaction Emboldens the Far-Right - The Atlantic
*** Clare Foran (: What did you think about the criticism that there wasn’t an adequate police response to the violence in Charlottesville?
Michael German: Well, what I believe we’ve seen over the past several months, and what we saw take place in Charlottesville, too, is that police are not aggressively policing these protests to prevent violence. In April, nearly a dozen people were injured in Berkeley when self-styled alt-right activists promoted and engaged in acts of violence and militia members showed up to tell reporters they would “enjoy” attacking counter-protesters. Violence broke out at a pro-Trump rally in Huntington Beach, California, in March. And in Portland, at an alt-right rally in June, a militia member reportedly aided the Department of Homeland Security in making an arrest.
These militia groups show up saying that they are there to serve as security at these protests, and we saw that in Charlottesville, too, but even in an open-carry state you can’t set yourself up as a security force or a security guard without a license to do so. That’s not legal, and it’s not legitimate. So why is the state allowing them to serve as security at these protests?
It’s also clearly very different than the way we’ve seen police react to nonviolent protests like the Occupy Movement, or the protests at Standing Rock, where we saw an extremely aggressive policing take place. We did not see that kind of a police response in Charlottesville***

Friday, August 18, 2017

Campo dei Fiori by Czeslaw Milosz | Poetry Foundation

Warsaw 1943
What one with eyes open saw as the ghetto burned.
Campo dei Fiori by Czeslaw Milosz | Poetry Foundation
I thought of the Campo dei Fiori
in Warsaw by the sky-carousel
one clear spring evening
to the strains of a carnival tune.
The bright melody drowned
the salvos from the ghetto wall,
and couples were flying
high in the cloudless sky.

At times wind from the burning
would drift dark kites along
and riders on the carousel
caught petals in midair.
That same hot wind
blew open the skirts of the girls
and the crowds were laughing
on that beautiful Warsaw Sunday.

Someone will read as moral
that the people of Rome or Warsaw
haggle, laugh, make love
as they pass by the martyrs' pyres.
Someone else will read
of the passing of things human,
of the oblivion
born before the flames have died.

But that day I thought only
of the loneliness of the dying,
of how, when Giordano
climbed to his burning
he could not find
in any human tongue
words for mankind,
mankind who live on.

Wednesday, August 16, 2017

Fordham University Statement on Charlottesville

University Statement on Charlottesville
Dear Members of the Fordham Family,
You have likely heard of the ugly events that took place in Charlottesville on Saturday. Fascism, Nazism, and Racism were literally on the march, and at this point we know of one person killed and at least 19 injured, believed to be the victims of the action of a deluded and hateful member of the racist mob that gathered in Charlottesville for a white supremacy rally. I know you join me in mourning both the woman who was killed, and the two police officers who died when their helicopter crashed that afternoon. Our thoughts and prayers are with their families, and with the people who were injured and their loved ones.
I am a historian, and I can assure you that the marchers, and almost certainly the person who drove into the crowd of peaceful demonstrators, are on the wrong side of history (I say “almost” because it is still possible, if unlikely, that the act was unintentional). I believe that rights for people of color, LGBT people, Jewish people, immigrants—and all of the would-be targets of Saturday’s marchers—will continue to expand and be protected in our country. If this incident has a silver lining, it is the swift, bipartisan rejection of the marchers’ rhetoric, beliefs, goals and actions.
As a priest, as a university president, and as a human being, my heart goes out to the intended targets and victims of the march, victims who number in the millions, and who include marginalized people everywhere, and anyone who cares about decency, compassion, and justice. Fordham University stands against everything the marchers represent—the hate, the bigotry, the profound ignorance, the casual cruelty, and the violent and vicious expression of those views. Such ideas and sentiments have no place in a civilized society, and of course are completely antithetical to both the Gospel values and Jesuit beliefs that have always guided the University.
I know many of you will not be back on campus for another ten days or so: the University will certainly support events for members of the University community who wish to come together for reflection and prayer in the wake of the events in Charlottesville.
Finally, to those who feel targeted by the Charlottesville marchers, know that the Fordham community supports you and is here for you. Though it may not seem so in moments like this, decency and compassion do prevail. We will get though this trying time together.
Joseph M. McShane, S.J

Tuesday, August 8, 2017

Environment, Law, and History: Tort and environmental regulation

Environment, Law, and History: Tort and environmental regulation

Tort and environmental regulation

by David Schorr
Douglas Kysar recently posted "The Public Life of Private Law: Tort Law as a Risk Regulation Mechanism", which, among other things, takes issue with the supposed inability of tort law to deal with complex environmental issues; or as the New York Court of Appeals put it in the leading case of Boomer v. Atlantic Cement Co., "the judicial establishment is neither equipped... nor prepared to lay down and implement an effective policy for the elimination of air pollution".

Kysar argues that "rather than common law litigation being displaced by more sophisticated regulatory approaches, the latter instead may well have depended on the former for their sophistication", and backs up his claim with a case study (in order not to spoil the suspense in his article, after the jump):

In Renken v. Harvey Aluminum (Incorporated), 226 F. Supp. 169 (1963) (there are a number of reported decision in this dispute), the plaintiffs (after much interesting drama) won a judgment ordering the polluter to install specific pollution control technology. Later, Kysar reports, the plaintiffs' lawyers were turned to for their expertise in implementing the "best available technology" standard at the heart of federal environmental legislation.
Judge John F. Kilkenny
Judge Kilkenny of the Federal District Court of Oregon did not, Kysar writes,
let the potential “publicness” of the issues distract him. His opinion remains tightly focused on the particular relationship of wrongdoing at bar and he does not fret over whether the remedy ordered could more effectively be promoted through legislative or administrative means. Such a focus is critical, for tort law and regulation are complements rather than substitutes—an idea all too often forgotten in the debate over how best to govern the causes and consequences of environmental, health, and safety threats

Donald Trump: Chickenhawk in Chief - The Atlantic

Donald Trump: Chickenhawk in Chief - The Atlantic
by James Fallows

Donald Trump: Chickenhawk in Chief - The Atlantic

Donald Trump: Chickenhawk in Chief - The Atlantic
by James Fallows

Urban myth: Were Vietnam vets really insulted when they returned? -

Donald Trump, a chickenhawk, is making vitriolic attacks on Sen.Richard Blumenthal for placing himself among those who "returned" from Vietnam.  And suffered from derision and insult.
Such self-aggrandizement is offensive.  Blumenthal got deferments (as did I - M.  And then suffered insults.  There is NO EVIDENCE of such events.  As an activist against the war in Vietnam I do not recall a single word spoken against the troops.  They were, of course draftees.  And we were all subject to the draft.  We did denounce the war and tactics like carpet bombing, use of napalm, strategic hamlets, deforestation via agent orange, and the entire effort as a neo-colonial sequel to the French suppression of a legitimate movement for national independence.
Blumenthal’s Words Differ From His History -
In an interview, Jean Risley, the chairwoman of the Connecticut Vietnam Veterans MemorialInc., recalled listening to an emotional Mr. Blumenthal offering remarks at the dedication of the memorial. She remembered him describing the indignities that he and other veterans faced when they returned from Vietnam.
“It was a sad moment,” she recalled. “He said, ‘When we came back, we were spat on; we couldn’t wear our uniforms.’ It looked like he was sad to me when he said it.”
Ms. Risley later telephoned the reporter to say she had checked into Mr. Blumenthal’s military background and learned that he had not, in fact, served in Vietnam.

Monday, August 7, 2017

Fordham's labor relations difficult

Saturday, August 5, 2017

"Lock her up" the Trump fans cheered at Thursday evening's Trump rally in West Virginia. The bases of this ugliness are complex. Whites have long acquiesced in segregation and blatant discrimination against Black people. But no such tolerance is shown for affirmative action. At Fordham we definitely look to recruit
minority students and faculty. African American and Hispanic faculty are well represented and strongly credentialed. But we are below the norm on student body diversity.

Why? Fordham is a competitive school admitting about 1/3 of applicants. Median LSAT scores of matriculated J.D. students are about 165 - in the top 10% of test takers. That sharply limits the number of minority students because as explained below, few score very high. - gwc
"Students seeking admission to the nation's highest-ranked law schools such as Yale, Harvard, and Stanford have a mean LSAT score of about 170. Data obtained by JBHE from the Law School Admission Council shows that very few blacks nationwide score at this level.
In 2004, 10,370 blacks took the LSAT examination. Only 29 blacks, or 0.3 percent of all LSAT test takers, scored 170 or above. In contrast, more than 1,900 white test takers scored 170 or above on the LSAT. They made up 3.1 percent of all white test takers. Thus whites were more than 10 times as likely as blacks to score 170 or above on the LSAT. There were 66 times as many whites as blacks who scored 170 or above on the test.
Even if we drop the scoring level to 165, a level equal to the mean score of students enrolling at law schools ranked in the top 10 nationwide but not at the very top, we still find very few blacks. There were 108 blacks scoring 165 or better on the LSAT in 2004. They made up 1 percent of all black test takers. For whites, there were 6,689 test takers who scored 165 or above. They made up 10.6 percent of all white students who took the LSAT examination.
The nation's top law schools could fill their classes exclusively with students who scored 165 or above on the LSAT. But if they were to do so, these law schools would have almost no black students."…/51_graduate_admissions_test.html

Tuesday, August 1, 2017

MDL panel reluctant to consolidate cases

Prosecutors rarely punished

She Was Convicted of Killing Her Mother. Prosecutors Withheld the Evidence That Would Have Freed Her.

Sunday, July 30, 2017

Is the Republican Effort to Destroy the ACA Dead?

Balkinization: Is the Republican Effort to Destroy the ACA Dead? by David Super No. That question can be asked from a procedural perspective, a political perspective, or a practical perspective, but in each instance the answer is “no”. This post takes each of these points of view, explores the possible future of the Republicans’ efforts against the ACA, and identifies the markers that would actually mean that the assault on the ACA is finished.

Cassidy-Graham Amendment Would Cut Hundreds of Billions from Coverage Programs, Cause Millions to Lose Health Insurance | Center on Budget and Policy Priorities

The GOP just does not think that healthcare is a right. -gwc
Cassidy-Graham Amendment Would Cut Hundreds of Billions from Coverage Programs, Cause Millions to Lose Health Insurance | Center on Budget and Policy Priorities 
Senators Bill Cassidy (R-LA) and Lindsey Graham (R-SC) have introduced an amendment to the GOP health bill that they describe as focused on state flexibility and equalizing payments across states rather than cuts.[1] But the amendment would make drastic cuts to both Medicaid and marketplace financial assistance
Specifically, the Cassidy-Graham amendment would:
  • Eliminate premium tax credits and cost-sharing reductions that help moderate-income marketplace consumers afford coverage and care, and eliminate the ACA’s enhanced match for Medicaid expansion starting in 2020.
  • Replace the marketplace subsidies (premium tax credits and cost-sharing reductions) and Medicaid expansion funding with a block grant set at levels well below what would be provided under current law.  States apparently could use these funds for a broad range of health care purposes, not just coverage, with essentially no guardrails or standards to ensure affordable, meaningful coverage.  After 2026 block grant funding would end altogether.
  • Maintain the Senate bill’s provision to convert virtually the entire Medicaid program to a per capita cap, with large and growing cuts to federal funding for seniors, people with disabilities, and families with children.  
As a result of these provisions, the Cassidy-Graham proposal would:
Make deep cuts to federal funding for coverage programs.  Block grant funding in 2020 would be $26 billion, or 16 percent, below projected current law federal funding for Medicaid expansion and marketplace subsidies.  The block grant would grow by only 2.0 percent annually, well below medical cost inflation and even general cost inflation.  By 2026, block grant funding would be $83 billion, or 34 percent, below projected current law federal funding.  States would be forced to sharply scale back coverage as these block grants became increasingly inadequate. 
Moreover, the formula for how much states receive under the block grant would move federal funding from expansion states to non-expansion states, deepening the percentage cuts to funding for expansion states. That would punish states that have been most successful at enrolling low- and moderate-income people in coverage since the ACA’s major coverage expansions took effect.  In fact, Senator Graham said on the Senate floor that funding for California, a state that with a highly effective state-based marketplace and a successful Medicaid expansion, would eventually be cut by 38 percent.  The amendment appears designed to pick winners and losers, rather than guarantee states the funding they need to cover their residents’ needs.  Also, because the funding is conditional on meeting certain criteria related to states’ per capita income, population density, and Medicaid expansion status, some states (such as Florida, North Carolina, and Virginia) would be excluded from between 45 and 70 percent of the funding outright. 
Crucially, funding would end altogether after 2026, leaving states with massive holes in their budgets and no choice but to further reduce access to coverage.

NFL ends concussion research partnership $16 million short of $30 million commitment

NFL ends concussion research partnership $16 million short of $30 million commitment
Back in 2012, the NFL made a heavily publicized $30 million commitment to the National Institute of Health to fund concussion research, which the league wanted the public to see as a commitment it was taking head safety in football seriously.
But as ESPN’S Outside the Lines reported this week, that partnership is set to expire next month even though the NFL — which is projected to reach $14 billion in revenue this year — failed to give the NIH $16 million of the promised funds. In other words, the league fulfilled less than half of its obligations to the NIH.
“The NFL’s agreement with [the funding arm of the NIH] ends August 31, 2017, and there are no current research plans for the funds remaining from the original $30 million NFL commitment,” the NIH said in a statement.
The relationship between the NFL and the NIH has been a contentious one from the start. In 2015, Outside the Lines reported that even though the gift had reportedly been unrestricted, the NFL restricted the NIH from using $16 million of its $30 million grant to fund a Boston University study on the degenerative brain disease chronic traumatic encephalopathy (CTE), a progressive brain disease thought to be caused by repeated subconcussive hits to the head.

Saturday, July 29, 2017

An impeachable offense: Trump Calls For ‘Rough’ Policing, Gives Blessing To Law Enforcement Abuses – Talking Points Memo

Inciting police to violate the rights of persons in custody is an impeachable offense.
Constitution of the United States of America:

Article II, Section 1 "Before he enter on the execution of his office, he shall take the following oath or affirmation:--"I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States."
Article II, Clause 3 the President "shall take care that the laws be faithfully executed".

Trump Calls For ‘Rough’ Policing, Gives Blessing To Law Enforcement Abuses – Talking Points Memo
"The address, in Brentwood, New York, was ostensibly meant to address the violence propagated by the MS13 gang. But, amid repeated raucous cheering and “thank yous” from the officers in attendance, Trump veered into several extended monologues on the value of being “tough.”
Toward the end of his remarks, the President gave a chilling example of what he meant.
“When you see these towns, and when you see these thugs being thrown into the back of a paddy wagon, you just see them thrown in, rough,” he said, referring to the arrest of alleged gang members. “I said, please don’t be too nice.”
“When you guys put somebody in the car and you’re protecting their head, you know, the way you put their hand over,” he mimicked an officer putting a handcuffed person in the back of a squad car, the officer’s hand over the suspect’s head. “Like, don’t hit their head and they’ve just killed somebody? Don’t hit their head?”
“I said, you can take the hand away, OK?” he concluded, to laughter, and then loud applause.
That sentiment characterized much of the red meat speech, in which Trump contrasted himself frequently to his predecessor.
“We have your backs 100 percent,” Trump said near the beginning of his remarks. “Not like the old days."

Thursday, July 27, 2017

Fallows: The shame of John McCain

Tuesday, July 25, 2017

Trump jugen: Boy Scout Jamboree speech

Trump's speech to Boy Scouts: fake news, crowd size and New York's hottest people

Sunday, July 23, 2017

The Impeachable Offense - Lawfare

The entire discussion at the 1787 Constitutional Convention on the suject of impeachment:
The clause referring to the Senate, the trial of impeachments agst. the President, for Treason & bribery, was taken up.
Col. Mason. Why is the provision restrained to Treason & bribery only? Treason as defined in the Constitution will not reach many great and dangerous offences. Hastings is not guilty of Treason. Attempts to subvert the Constitution may not be Treason as above defined— As bills of attainder which have saved the British Constitution are forbidden, it is the more necessary to extend: the power of impeachments. He movd. to add after "bribery" "or maladministration". Mr. Gerry seconded him—
Mr Madison So vague a term will be equivalent to a tenure during pleasure of the Senate.
Mr Govr Morris, it will not be put in force & can do no harm—  An election of every four years will prevent maladministration.
Col. Mason withdrew "maladministration" & substitutes "other high crimes & misdemeanors" <agst. the State">
On the question thus altered
N. H— ay. Mas.— ay Ct. ay. (N. J. no) Pa no. Del. no. Md ay. Va. ay. N. C. ay. S. C. ay.* Geo. ay. [Ayes—8; noes—3.]
The Impeachable Offense - Lawfare
by Charles L. Black, Jr.

Editor's Note: In 1974, a law professor named Charles L. Black published an extraordinary brief volume, entitled, Impeachment: A HandbookIt is the finest text on the subject I have ever read. With the subject of impeachment on many people's minds these days, we received permission from Yale University Press to republish the portion of Black's book that discusses the parameters of the impeachable offense. I also asked Jane Chong to write an essay applying the lessons of Black's book to our time. I recommend that readers take the time to read Black's book in its entirety, along with Jane's exceedingly thoughtful treatment of its importance in the age of Donald Trump. 
—Benjamin Wittes

Tribe, Painter, Eisen....He cannot pardon himself

Friday, July 21, 2017

Miller v. Davis - counsel fees awarded against defiant County Clerk

Torts Today: Miller v. Davis - counsel fees awarded against defiant County Clerk

How White House Threats Condition Mueller’s Reality - Lawfare

How White House Threats Condition Mueller’s Reality - Lawfare
by Benjamin Wittes, Quinta Jurecic, Jane Chong
What does the world look like today if you’re Robert Mueller? 
You’ve got a huge, sprawling, immeasurably complicated job, and the President of the United States has just put you on notice of what you already have long suspected: You may not have much time.
A pair of stories published last night by the New York Timesand Washington Post announced that the White House is looking to “undercut” Mueller’s investigation and is “scouring” for information on potential conflicts of interest on the part of Mueller’s team. The stories describe a systematic effort to comb through the backgrounds of Mueller and his office in the hope of finding material damaging enough to merit firing Mueller, requesting the recusal of members of his team, or at the very least discrediting the independent investigation in the eyes of the public.
Inverting the Pyramid: In a normal complex criminal investigation, the prosecutor starts at the bottom of the organizational pyramid and works his or her way up. The prosecutor indicts the drug runners, flips them, goes for the middle managers, flips them, and continues to use each layer to go after the one above—eventually targeting the people at the very top.
A prosecutor investigating the President of the United States, who’s threatening in two ways to nuke the investigation, might not feel the luxury of working up from the bottom of the pyramid. Such an approach takes time, after all. The bottom of the pyramid involves a lot of people whom the president, unlike a crime boss, can pardon. Notwithstanding the fact that pardoned individuals can be compelled to testify, a broad pardon eliminates much of the prosecutor’s leverage in obtaining the truth—leverage that relies on the criminal jeopardy of the underlings. And quite uniquely among criminal investigative subjects in the federal system, the President can also fire his own prosecutor, meaning that time may not be an available commodity. In an environment in which Trump is openly toying with both of these steps, the prosecutor may be tempted to invert the pyramid and focus on presidential conduct first.

Proposed Draft Legislation Clamps Down on Soil Pollution in China | Latham & Watkins LLP - JDSupra

Proposed Draft Legislation Clamps Down on Soil Pollution in China | Latham & Watkins LLP - JDSupra
On 22 June 2017, Chinese legislators released draft proposals to combat soil pollution in China at a bimonthly session of the Standing Committee of the National People’s Congress. The legislation complements the State Council’s ambitious plan to address soil pollution – an area not specifically covered by Chinese environmental law at present. Both  the Council’s plan and the corresponding draft legislation are a response to a series of highly publicised incidents, including one in Jiangsu Province where nearly 500 school students fell ill after exposure to contaminated soil. These incidents have focused public attention on the issue of soil contamination, which had previously received little attention due to the more obvious air pollution issues in Chinese cities.
The proposed law is similar to the United States Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund), in that the law requires landowners to investigate soil contamination where it is identified and imposes liability for soil contamination cleanup on the parties responsible for the pollution — or, if the responsible party cannot be found, on the landowner. The proposed law also establishes a pollution cleanup fund for situations in which the responsible party or landowner either cannot be located or lacks the funds to pay. In cases where the contamination occurred prior to the passage of the new law, a landowner held responsible may also apply to the cleanup fund for reimbursement of the remediation costs. In addition, the proposed law calls for regulators to establish tax benefits for soil remediation, standards for soil monitoring, reporting of contamination data, limits on the release of hazardous substances on farmland, and for more stringent environmental impact evaluations of construction projects (including the prohibition of construction on polluted land until the land has been remediated to the applicable standard).
Pollution of farmland is subject to particularly heavy penalties under the proposed law, including fines of up to CNY2 million ($US297,000). These penalties likely are a response to various surveys, including a 2014 government report that concluded 19.4% of China’s farmland is contaminated with heavy metals. Factories found to have illegally discharged pollutions may be subject to seizure or forced to cease operations and, as with the Environmental Protection Law passed in 2014, government officials who fail to enforce the provisions of the proposed law would be subject to administrative penalties. According to Luo Qingquan, the deputy head of the NPC’s environment and resources protection committee, the condition of soils in China is “grim” because soil is the “ultimate receptor” of air and water pollution and can lead to the contamination of food grown in such soil. The Ministry of Environmental Protection has allocated a budget of CNY14.6 billion ($US2.1 billion) this year to fund soil remediation projects, but given the vast acreage of affected farmland already found to be contaminated, addressing the problem on a nationwide scale could cost up to CNY1 trillion.

Monday, July 17, 2017

China’s Evolving Case Law System In Practice | Supreme People's Court Monitor

Image result for tsinghua university school of law
In a new article in the Tsinghua China Law Review Susan Finder, a leading student of the Supreme People's Court, demonstrates the transformation under way in how case law is used by judges in the People's Courts.

Unlike our Supreme Court - whose principal tools are Rules, and case by case analysis, the SPC has a wide range of tools at its disposal.  Guiding cases, model cases, interpretations, responses to inquiries, guidances, etc.
This is not as declaration of judicial independence. Rather it should be understood as a consolidation of power - means for the SPC to bring consistency and improvement to China's massive legal system.  Use of case law is an inevitable product of the increasing transparency  of judicial decisions.  It is best understood as neither a common law system nor a civil law system - despite the civil law roots of China's legal system.

The evolving approach is the product of borrowing but also recognition that the power of the internet is transformative. Directed to post all decisions, the imperative drive to treat like cases alike produces mechanisms that draw on the huge accumulating body of decision-making.  - gwc

China’s Evolving Case Law System In Practice | Supreme People's Court Monitor//
by Susan Finder
***The SPC, carrying out its function to supervise and guide the lower courts, unify the application of law, and improve the quality of justice, selects and publicizes certain of its own cases and those of lower courts in a variety of forms. Guiding cases, about which there is a rich literature in Chinese and English, rank first. As noted above, this article focuses on the role of non-guiding cases and therefore the principal forms through which the SPC makes known non-guiding cases are listed below.
• Cases published in the monthly SPC Gazette (最高人民法院 公报), which take two forms: selected judgments (裁判文书选登) and cases (案例), generally totaling 20-30 annually. The first type are cases decided by various trial divisions of the SPC and reflect their views on certain issues, while the second are model cases submitted by the local courts (through the provincial high courts), which have been reviewed by various divisions of the SPC. The cases, which have been edited, contain a summary of the important points of the case (裁判摘要). However, there are no formal publicly-available criteria for selection. These cases are now accessible on the SPC’s website.

• Cases published by publications of the SPC such as:
* Selection of People's Court Cases (人民法院案例 选), a monthly publication of the China Institute for Applied Jurisprudence, affiliated with the SPC;
* China Case Trial Highlights (中国审判案例要 览 ), an annual publication of the National Judicial College and the Renmin University of China Law School.

• China Court Annual Cases (中国法院[2016]年度案例), a publication of the National Judicial College’s Case Development Research Center, now with an online platform. The cases that the editorial team from the National Judicial College selected for publication in China Court Annual Cases are also edited and contain an added section called “important points (要旨) following the theory that readers would prefer something easy to read and useful” . • People's Justice: Cases (人民司法——案例). People's Justice is a biweekly publication affiliated with the People’s Court Daily (人 民法院报), but the Cases section is published monthly. The cases published in the Selection of People’s Court Cases are edited and contain a summary of the “important points (要点)” of the case.

Sunday, July 16, 2017

Political Economy of Mass Incarceration

Thursday, July 13, 2017

Silver conviction overturned

Wednesday, July 12, 2017

DJT, Jr. Meeting probably did not violate campaign finance law. ~Jed Shugerman

Iran will not disintegrate. … Lobelog

Tuesday, July 11, 2017

Sunday, July 9, 2017

Iran is a nation where power changes hands peacefully.

Friday, July 7, 2017

Richard Rorty was right

Tuesday, July 4, 2017

Reading the Office of Legal Counsel on Emoluments: Do Super-Rich Presidents Get a Pass? - Lawfare

Lawfare's Jane Chong carefully reviews the opinions generated by the Office of Legal Counsel in the Department of Justice.  That unit advises the President on matters of legality - particularly constitutionality.  Its opinions over the years inform her assessment of the current position of the Justice Department and the stances take by the 119 Members of Congress and others who have sued Trump asserting violations of the foreign emoluments clause. - gwc
Reading the Office of Legal Counsel on Emoluments: Do Super-Rich Presidents Get a Pass? - Lawfare
by Jane Chong (Deputy Managing Editor - Lawfare)

I wrote last November that the Foreign Emoluments Clause “is on its face a national security provision designed to the protect the country from officers too enmeshed with foreign interests.” If the Justice Department’s recent court filing is to be believed, that protection is exceedingly limited. This new position marks a decisive break from the more conscientious approach long espoused by both the Comptroller General and the Office of Legal Counsel (OLC).
At the heart of the emoluments controversy is President Trump’s refusal to liquidate his business holdings. He has instead maintained ownership of the Trump Organization, a multibillion-dollar umbrella company with thousands of domestic and international investments, and placed the assets in a revocable trust managed by his sons Donald Trump, Jr. and Eric Trump. Trump now faces three lawsuits alleging that he is profiting from his business empire in violation of the Constitution. Three days after his inauguration, Citizens for Responsibility and Ethics in Washington (CREW), a government accountability watchdog group, filed the first suit in the Southern District of New York. This month, two more complaints were filed by the attorneys general of Washington D.C. and Maryland and 196 congressional Democrats, in federal district courts in Maryland and the District of Columbia, respectively.
All three suits center on the meaning and scope of the Foreign Emoluments Clause, which provides that “no person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept any present, Emolument, Office or Title of any kind whatever, from any King, Prince or foreign state” (U.S. Const. art. I, § 9, cl. 8). Citing Trump's business dealings with state governments and federal agencies, such as its lease on the Old Post Office Building that now houses the Trump International Hotel, two of the suits also allege violations of the Domestic Emoluments Clause. This provision applies specifically to the president and provides that he shall receive “for his Services” a fixed compensation during his tenure and not “any other Emolument from the United States, or any of [the states]” (U.S. Const. art. II, § 1, cl. 7).

Foreign Emoluments: how has the OLC understood it?

Sunday, July 2, 2017

Impeachable Offense: "I Don't Care About My Dignity"

Balkinization: "I Don't Care About My Dignity"
by Gerard Magliocca (Indiana University Law School)

Articles of impeachment vs. Andrew Johnson
Article Ten concluded with the following:
Which said utterances, declarations, threats and harangues, highly censurable in any, are peculiarly indecent and unbecoming in the Chief Magistrate of the United States, by means whereof the said Andrew Johnson has brought the high office of the President of the United States into contempt, ridicule and disgrace, to the great scandal of all good citizens, whereby said Andrew Johnson, President of the United States, did commit, and was then and there guilty of a high misdemeanor in office. 

Saturday, July 1, 2017

My Father’s War, and Mine - The New York Times

As a member of the class of 1967 at Holy Cross College I had options to avoid going to war.  It was easy  I was about to marry and we were headed to the Peace Corps and India.  A double exemption with a one year 1-Y to follow while getting a master's degree.  So I did not face the tension Hammet describes.
My Father’s War, and Mine - The New York Times
by Theodore Hammet
I can’t pinpoint what changed my mind. Probably, it was the relentless escalation, the rising death toll and all the destruction with no clear objective. It was increasingly hard for me to envision being a Marine in Vietnam; instead, I could see myself in the lyrics of Bob Dylan’s “Chimes of Freedom,” covered by the Byrds on their first album, in the summer of 1965: “Flashing for the warriors whose strength is not to fight.” It began to dawn on me that if the songs I was listening to were right, then the war must be wrong.
In the class of 1967, we all had to make choices about Vietnam. The privilege of attending Harvard brought many opportunities to avoid the war, including exempt occupations, doctors’ letters (often phony), influence on draft boards and six-month reserve enlistments. These, together with acts of opposition — registering as a conscientious objector, going to jail, fleeing to Canada — meant that only about 40 of my classmates — out of about 1,200 in our freshman class — served in Vietnam, and only two were killed. A total of 22 Harvard men died in the Vietnam War compared with almost 700 in World War II, including two of my father’s roommates.
During a long argument on the telephone in the spring of 1966, I told my father that I was against the Vietnam War and was going to withdraw from the Marine Corps. “You’re spitting on everything I believe in,” he replied angrily.
My father went to war with pride and returned to a hero’s welcome. He and his generation helped to save the world. Since I returned from Vietnam for the first time in 1969, I have become even more convinced that our war there was terribly wrong. Still, I accepted and actually wear the Marine Corps lapel pin given me by my former platoon commander at a Basic School reunion in 2015. I have grown able to appreciate both those who bravely served in Vietnam and those whose actions against the war helped end it sooner than it might have otherwise.
I do not claim to have made the most honorable choices about Vietnam. In 1966 and 1967, I was young and confused and gave in to doubt and fear. If I had it to do over again, I hope I would have been truer to my principles and refused to serve in Vietnam. Over the ensuing years, I argued heatedly with my father about the war, and we never agreed. At the end of one argument, he said that “we’ve come to a parting of the ways.” This was not literally true. I continued a somewhat troubled relationship with him until his death.

The Time I Got Recruited to Collude with the Russians - Lawfare

The Time I Got Recruited to Collude with the Russians - Lawfare
by Matt Tait
I read the Wall Street Journal’s article yesterday on attempts by a GOP operative to recover missing Hillary Clinton emails with more than usual interest. I was involved in the events that reporter Shane Harris described, and I was an unnamed source for the initial story. What’s more, I was named in, and provided the documents to Harris that formed the basis of, this evening’s follow-up story, which reported that “A longtime Republican activist who led an operation hoping to obtain Hillary Clinton emails from hackers listed senior members of the Trump campaign, including some who now serve as top aides in the White House, in a recruitment document for his effort”:
Officials identified in the document include Steve Bannon, now chief strategist for President Donald Trump; Kellyanne Conway, former campaign manager and now White House counselor; Sam Clovis, a policy adviser to the Trump campaign and now a senior adviser at the Agriculture Department; and retired Lt. Gen. Mike Flynn, who was a campaign adviser and briefly was national security adviser in the Trump administration.
I’m writing this piece in the spirit of Benjamin Wittes’s account of his interactions with James Comey immediately following the New York Times story for which he acted as a source. The goal is to provide a fuller accounting of experiences which were thoroughly bizarre and which I did not fully understand until I read the Journal’s account of the episode yesterday. Indeed, I still do not fully understand the events I am going to describe, both what they reflected then or what they mean in retrospect. But I can lay out what happened, facts from which readers and investigators can draw their own conclusions.

Wednesday, June 28, 2017

Torts Today: Unlocking the Mysteries of Trump v. International Refugee Assistance It's All About that Stay (and Its Surprising Limits) | Take Care

Torts Today: Unlocking the Mysteries of Trump v. International Refugee Assistance It's All About that Stay (and Its Surprising Limits) | Take Care

What Happened in Hernandez v. Mesa? - Lawfare

What Happened in Hernandez v. Mesa? - Lawfare
By Andrew Kent
 Tuesday, June 27, 2017, 2:23 PM
During a back-and-forth on Lawfare with Steve Vladeck a few months ago, I suggested that Hernandez v. Mesa, pending at the Supreme Court this term, had the potential to generate a very important opinion: the Fourth Amendment issue in the case could impact the legality of worldwide extraterritorial national security activities by the U.S. government like electronic surveillance and drone strikes.
Hernandez arose out of the deadly shooting of a Mexican national in Mexico by a U.S. border patrol agent standing in the United States. Under a Supreme Court case dating back to 1990, also arising in Mexico, the Fourth Amendment does not protect noncitizens located outside the United States, unless they have some pre-existing substantial, voluntary connection to the United States. The deceased in Hernandez lacked any such connection.
But the Court’s 2008 decision in Boumediene v. Bush, applying the Constitution’s Habeas Suspension Clause to the noncitizen detainees at the Guantanamo base, arguably overruled a bright-line approach to determining the Constitution’s applicability beyond U.S borders. Instead, the Court applied totality of the circumstances analysis. Using Boumediene, the plaintiffs’ counsel in Hernandez, among whom is Steve, argued that the Court could rule for their clients on the applicability of the Fourth Amendment without opening the entire can of worms about extraterritorial national security activities. This was possible, they suggested, because like Guantanamo—Cuban sovereign territory, but leased permanently and controlled exclusively the by U.S. government—the Mexico-U.S. border area is a sui generis territory. This border, they argued, was a liminal zone of shared control with constantly traversing populations, and therefore wholly unlike purely foreign territory.
I was skeptical that the border was truly so unique and that a Fourth Amendment ruling for the plaintiffs could be cabined and limited so neatly.
On Monday, the Court vacated and remanded Hernandez to the Fifth Circuit, declining to rule on the merits of the Fourth Amendment. It avoided this constitutional issue, the Court told us, because “[t]he Fourth Amendment question in this case . . . is sensitive and may have consequences that are far reaching.” This per curiam opinion was issued for Chief Justice Roberts and Justices Kennedy, Alito, Sotomayor, and Kagan. Along the way the Court made important statements about Bivens (more below) and qualified immunity.
Justice Thomas concurred, saying he would have ruled for the border patrol agent on Bivens grounds. Justice Breyer, joined by Justice Ginsburg, dissented, essentially adopting the plaintiffs’ view of the Fourth Amendment. Justice Gorsuch did not participate, as he was seated after oral argument.
What can we glean from the per curiam’s treatment of the Fourth Amendment? We know that five justices seized the opportunity to duck the issue for now. They did so by directing the Fifth Circuit to apply the Court’s new decision in Ziglar v. Abassi on the availability of Bivens, before reaching the merits.