Friday, March 31, 2017

Trump Is Right: Give Michael Flynn Immunity - The New York Times

Trump Is Right: Give Michael Flynn Immunity - The New York Times
by Richard Painter and Norman Eisen (the writers were White House Ethics Counsel for George W. Bush and Barack H. Obama, respectively)
***Immunity should be granted as soon as Congress and prosecutors are persuaded that Mr. Flynn has information that will lead to a criminal case against one or more people at least as important to the alleged wrongdoing as Mr. Flynn may be. The overriding objective must be learning who if anyone in the United States collaborated with the Russians as well as who knew about it, what they knew and when they knew it.***

Donald Trump’s Parrot - The New York Times

Donald Trump’s Parrot - The New York Times
By Roger Cohen
"At night in the ghostly White House, when Ivanka and Jared have gone home, and his consiglieri have retired to their Russian salads, the gold-robed president — crazed as Lear on the cliffs “fantastically dressed with wildflowers” — wanders from room to room staring at TV screens, cursing in frustration when he cannot find the remote, hurling abuse at the “enemies of the people” who fail to genuflect daily before his genius, adjusting his hair, making random calls to aides to ensure they have scheduled his next play dates with truckers and coal miners.
It might almost be funny. Almost. But the day will come when the Dow plunges and what the former British Prime Minister Harold Macmillan is said to have feared most in politics — “events, dear Boy, events” — occurs, perhaps in ghastly terrorist form, and an incoherent administration will be confronted by its first crisis. All that can be said for now is that, in such a moment, illiberalism and xenophobia in the hands of a would-be autocrat will make for a dangerous brew.

Thursday, March 30, 2017

"Medicaid expansion is the jewel of the ACA" | xpostfactoid

"Medicaid expansion is the jewel of the ACA" | xpostfactoid
by Andrew Sprung
From the opposite end of the political spectrum, Trump buddy Christopher Ruddy has urged further Medicaid expansion on Trump.  As I pointed out within days of Trump's election, that is the only way to fulfill Trump's promises to delivery affordable, low deductible health insurance to everyone.

Too bad Trump's promises aren't worth a bottle of Trump Network vitamins. But Democrats' day will come, if our political system survives Trump. And when it does, various forms of public insurance for those who currently must rely on the individual market will be in play.

The Empty Supreme Court Confirmation Hearing - The New York Times

The Empty Supreme Court Confirmation Hearing - The New York Times
by Linda Greenhouse
The Senate Judiciary Committee’s confirmation hearing for Judge Neil M. Gorsuch was just plain embarrassing, and not only for the nominee. But let’s begin with him, skipping over his Republican enablers, who had nothing to do but lob softball questions and praise his answers. If Judge Gorsuch wasn’t the least forthcoming Supreme Court nominee ever to appear at a confirmation hearing, it’s hard to imagine one who could be less forthcoming while still breathing. More interesting and less predictable answers could have come from Siri on an iPhone.
The previous contender for the title of least forthcoming was Justice Antonin Scalia, who died in February 2016 and whom Judge Gorsuch would replace. Nominated by President Ronald Reagan in 1986 and confirmed unanimously, then-Judge Scalia wouldn’t even tell the Judiciary Committee whether he supported Marbury v. Madison, the landmark 1803 decision in which the court under Chief Justice John Marshall established the principle that federal courts can invalidate unconstitutional statutes.

Wednesday, March 29, 2017

Napolitano likes fake judges, not real judges

Henry Siegman · The Ultimate Deal: The Two-State Solution · LRB 30 March 2017

Henry Siegman,  a former head of the American Jewish Congress, argues that the Palestinians should transform their struggle into an anti-apartheid struggle for equal rights.  Such a fight against the fifty year old occupation can have only two effects: either restore the two state solution to the agenda, or change Israel into a truly bi-national state. - gwc
Henry Siegman · The Ultimate Deal: The Two-State Solution · LRB 30 March 2017
It will only be when Palestinians close down the Palestinian Authority and turn it into a vehicle of non-violent struggle for rights that the two-state option will re-emerge. If it doesn’t re-emerge, in time Greater Israel’s de facto apartheid will evolve into a binational state, because no apartheid can be hidden under the cover of a ‘temporary occupation’ that has already lasted half a century. An anti-apartheid struggle will undoubtedly be long and painful, as it was in South Africa, but no longer and no more painful than would be the case were Netanyahu’s status quo to prevail. ***

Reactions by the international commentariat to Trump and Netanyahu’s joint press conference on 15 February focused largely on Trump’s pronouncements, specifically on what seemed to be his abandonment of America’s long-standing bipartisan support for a two-state solution to the Israel-Palestine conflict. ‘I’m looking at two-state and one-state and I like the one that both parties like,’ he said. ‘I can live with either one.’ Given his ignorance of international affairs in general and the Middle East in particular, he probably had no idea of the implications of what he was saying. He declared that Palestinians will ‘have to acknowledge Israel, they’re going to have to do that,’ entirely unaware that that is exactly what they have already done, not once, but on three separate occasions: at the request of Reagan and his secretary of state, George Shultz, in 1988; in 1993, in the context of the Oslo Accords; and again in Gaza in 1998, with Bill Clinton in attendance. Trump is probably also unaware that Netanyahu’s government has never recognised the Palestinian right to national self-determination and statehood in any part of Palestine, even though this right has been affirmed repeatedly by the UN Security Council (e.g. Resolution 242 in 1967 and Resolution 1515 in 2003) and by the International Court of Justice (in 2004).

The Palestinians never withdrew their recognition of Israel, but they have refused to endorse Israel’s decision to define its national identity in religious and ethnic terms, a demand that no country has the right to impose on other countries. Israel would never agree to such a demand by Palestinians or for that matter by any Christian country.

Even before his meeting with Trump, Netanyahu announced his intention of treating 60 per cent of the West Bank – territory that the Oslo agreement designated as Area C, from which Israel was supposed to have withdrawn by 1998 – as a permanent part of Israel. So Palestinians would be left just 10 per cent of pre-partition Palestine. But with Trump in the White House, and his settlement-supporting son-in-law by his side, even this shrinkage seemed to Netanyahu too generous an accommodation to the Palestinians. He therefore announced at the White House that his second condition for a peace agreement with the Palestinians is that they agree to Israel’s retention of its military control over the entire West Bank.

Monday, March 27, 2017

2d Circuit rejects claim that lawyers have First Amendment right to non-lawyer equity partners //Alberto Bernabe //John Marshall Law School

Jacoby & Myers, LLP was one of the first law firms to employ large scale consumer-oriented advertising.  Their slogan “It’s about time” promised efficiencies and effectiveness.  However the firm’s growth stagnated as the P.C. transformed the practice of law, making it much less labor-intensive.In hope of raising capital the firm, according to the Second Circuit’s precis,
"challenge(d)  the constitutionality of a collection of New York regulations and laws that together prevent for‐profit law firms from accepting capital investment from non‐lawyers. The J&M Firms allege that, if they were  allowed to accept outside investment, they would be able to—and would—improve their infrastructure and efficiency and as a result reduce their fees and serve more  clients, including clients who might otherwise be unable to afford their services. By impeding them from reaching this goal, the J&M Firms contend, the state has unconstitutionally infringed their rights as lawyers to associate with clients and to access 18 the courts—rights that are grounded, they argue, in the First Amendment. "
 The Southern District of New York’s Judge Lewis A.  Kaplan dismissed the complaint, concluding that the plaintiffs failed to state a claim for violation of any constitutional right.  The Second Circuit panel agreed in Jacoby& Myers v. The Presiding Justices.  It is a decision that is a major blow to those who hoped to put a chink in the wall that bars U.S. firms from – like British and Australian firms – bringing on non-lawyer equity shareholders.
The panel (Lynch, Carney and Hellerstein) declared that “even if such rights as they claim were to be recognized, the challenged regulations withstand scrutiny because they are rationally related to a legitimate state interest. We agree that under prevailing law the J&M Firms do not enjoy a First Amendment right to association or petition as representatives of their clients’ interests; and that, even if they do allege some plausible entitlement, the challenged regulations do not impermissibly infringe upon any such   rights.“  

The issues are thoughtfully explored by Prof. Alberto Bernabe on his Professional Responsibility Blog – below. - gwc
Professional Responsibility Blog: Court of Appeals for the Second Circuit rejects argument that rules that ban lawyers from raising capital from non lawyers are unconstitutional

Sunday, March 26, 2017

DC Bar: Lawyers Must Consider Ethics When Dissolving Law Firms | Legal Ethics in Motion

DC Bar: Lawyers Must Consider Ethics When Dissolving Law Firms | Legal Ethics in Motion

Closing the doors on a law firm includes much more than just locking the door behind you. “Dissolution” means the process of terminating the law firm’s existence as a legal entity. The District of Columbia Bar recently issued an opinion that discusses the multiple rules of professional conduct come into play when considering the ethics involved in dissolving a law firm.

After the members of the firm decide to dissolve the firm, the next step is to promptly notify the firm’s clients. Timing is important because, after dissolution, the law firm no longer represents its clients. Notice of the dissolution should also be sent to opposing counsel and the tribunal.

During the dissolution period, lawyers must continue to diligently represent and communicate with clients while facilitating the client’s choice of counsel going forward and where appropriate, properly disposing of client files, funds, and any property.

Under Rule 1.16(d), if a particular lawyer and his client will be terminating their relationship then the lawyer is required to “take timely steps to the extent reasonably practicable to protect the client’s interests” which include surrendering property and papers to the client, allowing time for the client to find other counsel and other considerations.

To read the full opinion, click here.

Bellwether Settlements -Mass Tort Litigation Blog

Unlike class actions which empower judges via FRCvP 23, there is no rule defining the  roles and power of judges in consolidated multi district litigation.  28 USC 1407 offers minimal help other than transfer of cases to a single judge and management of the pre-trial stage of the litigation.  Zimmerman here works to creat order in the disorder. - gwc
Bellwether Settlements -Mass Tort Litigation Blog
Adam Zimmerman has posted his new article "Bellwether Settlements" to SSRN.  The abstract is below:
This Article examines the use of bellwether mediation in mass litigation.
Bellwether mediations are different from “bellwether trials,” a practice
where parties choose a representative sample of cases for trial to determine how to resolve a much larger number of similar cases. In bellwether mediations, the parties instead rely on a representative sample of settlement outcomes overseen by judges and court-appointed mediators.

The hope behind bellwether mediation is that different settlement
outcomes, not trials, will offer the parties crucial building blocks to forge a
comprehensive global resolution. In so doing, the process attempts to (1) yield important information about claims, remedies, and strategies that parties often would not share in preparation for a high-stakes trial; (2) avoid outlier or clustering verdicts that threaten a global resolution for all the claims; and (3) build trust among counsel in ways that do not usually occur until much later in the litigation process.

The embrace of such “bellwether settlements” raises new questions about the roles of the judge and jury in mass litigation. What function do courts serve when large cases push judges outside their traditional roles as adjudicators of adverse claims, supervisors of controlled fact-finding, and interpreters of law?

This Article argues that, as in other areas of aggregate litigation, courts can play a vital “information-forcing” role in bellwether settlement practice. Even in a system dominated by settlement, judges can help parties set ground rules, open lines of communication, and, in the process, make more reasoned trade-offs. In so doing, courts protect the procedural, substantive, and rule-of-law values that aggregate settlements may threaten.

Saturday, March 25, 2017

Fox's Napolitano Could Face Ethics Trouble Over Wiretap Claims | New Jersey Law Journal

Fox's Napolitano Could Face Ethics Trouble Over Wiretap Claims | New Jersey Law Journal
by Carmen Natale

Fox News contributor Andrew Napolitano, a former New Jersey Superior Court judge, recently claimed on television that former President Barack Obama enlisted the British intelligence services to wiretap Donald Trump when Trump was running for president.

Attorneys say this unverified assertion could cause Napolitano to face ethics charges, though the burden of proof to show he violated ethics rules would likely be steep and the potential punishments relatively minor.

Lawyers who focus on attorney ethics say anyone wanting to pursue an ethics complaint against Napolitano would have to prove the former judge lied on purpose and would have to overcome his First Amendment free speech protections.

Napolitano quit the bench in 1995 after a dispute with the New Jersey Supreme Court over his right to earn outside income, but is still licensed to practice in New Jersey and New York.

Fox News, according to media reports, removed Napolitano on March 16, after he claimed, citing unnamed sources, that the U.K.'s Government Communications Headquarters, at Obama's request, bugged Trump's communications.

Napolitano's allegations were cited by the Trump administration as evidence that Obama was behind a wiretapping scheme. In a rare public statement, GCHQ flatly denied Napolitano's claim, stating: "Recent allegations made by media commentator Judge Andrew Napolitano about GCHQ being asked to conduct 'wiretapping' against the then President Elect are nonsense. They are utterly ridiculous and should be ignored."

Fox News later issued a statement saying it could not confirm Napolitano's assertions, and took him off the air.

To explain how Napolitano could face trouble, attorney ethics mavens on both sides of the Hudson River cited Rule 8.4(c) of the New York and New Jersey Rules of Professional Conduct, both of which state that lawyers and firms "shall not engage in conduct involving dishonesty, fraud, deceit or misrepresentation."******

Trump’s Triumph of Incompetence - The New York Times

 Nicholas Kristof strikes a key note but now we face the question:  How can he be restrained when the sh*t really hits the fan? - gwc
Trump’s Triumph of Incompetence - The New York Times
by William Kristol

***Politics sometimes rewards braggarts, and Trump is a world-class boaster. He promised a health care plan that would be “unbelievable,” “beautiful,” “terrific,” “less expensive and much better,” “insurance for everybody.” But he’s abysmal at delivering — because the basic truth is that he’s an effective politician who’s utterly incompetent at governing.
It’s sometimes said that politicians campaign in poetry and govern in prose. Trump campaigns in braggadocio and governs in bombast.
Whatever one thinks of Trump’s merits, this competence gap raises profound questions about our national direction. If the administration can’t repeal Obamacare — or manage friendly relations with allies like Mexico or Australia — how will it possibly accomplish something complicated like tax reform?
Continue reading the main 

Napolitano told friends he was on Trump's Supreme Court shortlist - POLITICO

Must have been a very long shortlist.
Napolitano told friends he was on Trump's Supreme Court shortlist - POLITICO

After meeting with President Trump twice during the transition, first in December and again in mid-January, the Newark, N.J.-born television personality told several people that Trump said he was on the list of judges from whom he was selecting a nominee for the high court.

“He said, ‘Trump said I’m on the list,’” said a source who spoke with Napolitano shortly after one of his meetings with the then president-elect. “He’s been saying that since the transition.

Friday, March 24, 2017

Gibberish Is the White House’s New Normal -

Gibberish Is the White House’s New Normal -
by Todd Gitlin

Once upon a time, there were presidents for whom English seemed their native language. Barack Obama most recently. He deliberated. At a press conference or in an interview — just about whenever he wasn’t speaking from a text — his pauses were as common as other people’s “uh’s.” He was not pausing because his vocabulary was impoverished. He was pausing to put words into sequence. He was putting phrases together with care, word by word, trying out words before uttering them, checking to feel out what they would sound like once uttered. It was important to him to words in order because he did not want to be misunderstood. That president valued precision, in no small part because he knew he lived in a world where every last presidential word was a speech act, a declaration with consequence, so that the very statement that the sky was blue, say, would be scoured for evidence that the president was declaring a policy on the nature of nature.

That was then. Now we have a president who, when he speaks, spatters the air with unfinished chunks, many of which do not qualify as sentences, and which do not follow from previous chunks. He does not release words into a stream of consciousness but into a heap. He heaps words on top of words, to overwhelm meaning with vague gestures. He does not think, he lurches.

Here are some examples from TIME’s transcript of their cover story made out of their phone interview with the president of the United States. I have italicized the non sequiturs, incomplete propositions, indefinite pronouns and other obscurities that amount to verbal mud.****

Onward Oysters - New York’s Original Signature Snack

Museum of the City of New York
New York’s Original Signature Snack

Democrats Next Move on Health Care - The New York Times

My go to guy on the ACA - Andrew Sprung anayzes the current moment.  He does not believe that the Reublicans will fold their tent.  They really want to destroy Medicaid above all.   - gwc
The Democrats’ Next Move on Health Care - The New York Times
by Andrew Sprung
***The American Health Care Act, Paul Ryan’s Obamacare repeal bill, seems to be on thin ice after a House floor vote was postponed Thursday for lack of votes. But the priorities and passions that gave it shape are still very much alive and at work within Republican ranks.
The bill landed with a thud when first released on March 6. Within 48 hours, groups representing hospitals, doctors, nurses, nursing homes and the elderly announced their opposition. Moderate Republican senators called for changes to soften the likely coverage losses, particularly those caused by rollback of the Medicaid expansion. Freedom Caucus zealots (and their right-wing think tank backers) complained that it wasn’t harsh enough. And even if it passes the House, it is almost certainly dead on arrival in the Senate.
Democrats can’t assume that the impasse will last. Republicans have pushed themselves through seven years of denunciation and dozens of (vetoed) repeal votes to destroy the Affordable Care Act “root and branch.” It’s possible that the bill will squeak through House — and eventually pass the Senate with a few edges sanded.

Thursday, March 23, 2017

CBO: 24 Million Still Lose Insurance Under Revised O'Care Repeal Bill

CBO: 24 Million Still Lose Insurance Under Revised O'Care Repeal Bill

When Must a Lawyer Plotting a Lateral Move Obtain a Client’s Informed Consent? | Legal Ethics in Motion

When Must a Lawyer Plotting a Lateral Move Obtain a Client’s Informed Consent? | Legal Ethics in Motion
by Anibal Manzano

1. Conflict of Interest and Informed Consent

To avoid a conflict of interest, a lawyer needs to be informed client consent to engage in substantive job negotiations with a law firm that is adverse to the client. Likewise, hiring firms must avoid serious job talks with opposing counsel unless its own client consents. See North Carolina State Bar Ethics Comm., Formal Op. 20163, 1/27/17.

North Carolina Rule of Professional Conduct 1.7 forbids a lawyer from representing a client if the lawyer’s own interests may materially limit the client’s representation unless the lawyer reasonably believes he or she can provide competent and diligent representation and the client gives informed consent, confirmed in writing. N.C. Rules of Prof’l Conduct, Rule 1.7(b)(2) (2003). This type of conflict may arise when a lawyer has discussions about possible employment with a client’s opponent or a law firm representing the opponent. N.C. Rules of Prof’l Conduct, Rule 1.7, cmt. 10.

2. Substantive Discussion or Negotiation

While the exact point at which a lawyer’s own interest may materially limit his representation of a client may vary, the ethics committee advised substantive discussions and negotiations materially limit the lawyer’s representation of a client. Similarly, The Restatement (Third) of the Law Governing Lawyers advises that once the discussion of employment has become concrete and the interest is mutual, the lawyer must promptly inform the client. Restatement (Third) of the Law Governing Lawyers: A Lawyer’s Personal Interest Affecting the Representation of a Client, § 125, cmt. d. (2000).

The ethics committee relied on the ABA definition of “substantive discussion”, which “entails a communication between the job-seeking lawyer and the hiring law firm about the job-seeking lawyer’s skills, experience, and the ability to bring clients to the firm; and the terms of association.” ABA Formal Ethics Op. 96-400 (1996). To find a “substantive discussion,” the ethics committee opined that there must be a discussion or negotiation that is substantive. See North Carolina State Bar Ethics Comm., Formal Op. 20163, 1/27/17.

The committee further provided examples as to what constitutes a “discussion” and what is “substantive.” “Sending a resume blind to a potential employer is not a ‘discussion.” Id. “Speaking generally with a colleague at a social event about employment opportunities is not ‘substantive.’” Id.

To read the full opinion, click here.

Trout Fishing in America: 3 Days With Neil Gorsuch

Image result for oliver wendell holmes jr
The life of the law has not been logic: it has been experience.
The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed.
Oliver Wendell Holmes, Jr.  The Common Law (1881)
As a judge now for more than a decade, I've watched my colleagues spend long days worrying over cases. Sometimes the answers we reach aren't the ones we personally prefer. Sometimes the answers follow us home at night and keep us up. But the answers we reach are always the ones we believe the law requires.
Neil Gorsuch March 20, 2017
The modern Supreme Court nomination hearing has evolved into a form of meretricious performance art.  The past three days of Neil Gorsuch's hearing have been a charm offensive: he adores his wife, she hugs and kisses him, he chats with the boys about trout fishing.  And when it comes to judging he is a blank slate, or, like R2D2 a robot following the law's commands, applying it to the facts.

Everyone knows it is not true.  He is an ideological man, picked to replicate the jurisprudence of Antonin Scalia, vetted by The Federalist Society which has long and successfully labored to drive the courts to the right.  Gorsuch is their man.

If I were in the United States Senate my position would be: I'll vote after the hearings for Merrick Garland are concluded.  - gwc 

So Long And Thanks For All The Fishing! 3 Days With Neil Gorsuch

Wednesday, March 22, 2017

Two New Studies Show Alarming Segregation in New Jersey Schools Which May Run Afoul of State Constitution — Tractenberg The Civil Rights Project at UCLA

Paul Tractenberg
This evening I attended a retirement tribute for Professor Paul Tractenberg.  For forty six years a teacher at Rutgers Law School, he was the founder of the Education Law Center and the architect of the nationwide litigation efforts to use state constitutions to achieve equitable funding for public schools.
An avid long distance bicyclist, he has let no grass grow under his feet.  Last year he published a study demonstrating that New Jersey schools are among the most segregated in the country.  More segregated than Alabama's.  In his book All Eyes are Upon us (Race and olitics from Boston to Brooklyn)  historian Jason Sokol has demonstrated that the north gives itself far more credit than is deserved.
Two New Studies Show Alarming Segregation in New Jersey Schools Which May Run Afoul of State Constitution — The Civil Rights Project at UCLA
IELP’s report, New Jersey’s Apartheid and Intensely Segregated Schools: Powerful Evidence of an Inefficient and Unconstitutional State Education System, finds that a greatly disproportionate number of the state’s black and Latino students are isolated in urban school districts that enroll virtually no white students but have a high concentration of poor children.  The report finds that often these urban districts are located in close proximity to overwhelmingly white suburban school districts with virtually no poor students. For example, Essex County, a small but densely populated county, has four urban districts comprised mostly of schools with intensely segregated or apartheid enrollments, whereas the county’s 12 white suburban districts enroll almost no black, Latino or poor students.  This extreme concentration of poor children of color in poor urban districts, the report says, runs afoul of New Jersey’s constitutional mandate of racially balanced schools, and undermines the school funding equalization achieved by four decades of litigation culminating in Abbott v. Burke

A Status Quo, based on 1989-2010 data from the National Center for Education Statistics, details the changes in racial and economic class makeup in New Jersey schools from 1989 to 2010 and finds that increasing diversity in the overall population of the state far outpaces school-level diversity by both race and class. Between 1989 and 2010, the proportions of Asian and Latino students in New Jersey schools rose dramatically, from 4% to 9% and 11% to 22%, respectively, while enrollment of white and black students decreased during the same time period, from 66% to 52% and 18% to 16%, respectively.

From 1989-2010 the percentage of white students in urban schools in North and Central Jersey shrunk by half, from roughly 10% to 5% of enrollment. This rate of decline far exceeded the reduced percentage of the white student population throughout this metropolitan area, indicating a “white flight” of students and families from urban schools. Schools in North and Central Jersey have a significantly higher rate of racial isolation for black students than in South Jersey. In 2010, over 30% of black students in North and Central Jersey attended schools with 99%-100% students of color, compared to less than 14% of black students in South Jersey attending such highly segregated schools.

“New Jersey has seen little change in the status quo of segregated schooling over the last 20 years, with an increasingly multiracial population of students entering into racially and socioeconomically isolated schools,” stated Greg Flaxman, Civil Rights Project research associate and lead author of the CRP report. 

The CRP report includes a legal analysis and history of New Jersey school segregation by Professor Paul Tractenberg, education law expert at Rutgers University School of Law and author of the new IELP report. Tractenberg highlights proactive New Jersey litigation related to school and residential desegregation, and documents the disconcerting lack of implementation and enforcement on the ground, which ultimately allowed segregated schools to persist. Current evidence of segregation’s educational harms, such as higher dropout rates and less preparation for college, is included in the report. 

Gorsuch's Coyness Wears On Dem Senators //tPM

Gorsuch's Coyness Wears On Dem Senators
by Tierney Sneed //Talking Points Memo
""You have told us time and again, no place for my heart here, this is all about the facts, this is all about the law," Sen. Dick Durbin (D-IL) said. "I don't buy that. I don't think that the decisions of courts are so robotic, so programmatic, that all you need to do is to look at the facts and look at the law, and there's an obvious conclusion."

The man is shameless. Gorsuch knows that Durbin is right: that's why he was picked: to replace Scalia's vote on the Supreme Court.

The Problems With Originalism - The New York Times

The Problems With Originalism - The New York Times
by Prof. Ken Levy (LSU)
At Judge Neil M. Gorsuch’s confirmation hearing on Monday, Senator Dianne Feinstein, Democrat of California, started the ball rolling by remarking that she found his “originalist judicial philosophy to be really troubling.” Troubling it is.
Originalism is just one of the theories that Judge Gorsuch shares with the late Justice Antonin Scalia; another is its closely related cousin, textualism. Textualism says that when interpreting the Constitution, judges should confine themselves to the words of the Constitution. Originalism says that if the words are at all unclear, then judges need to consult historical sources to determine their meaning at the time of ratification, and the correct application of these words to new cases should clearly follow.
Consider Brown v. Board of Education (1954), a case in which the Supreme Court was confronted with the question whether it should continue to follow its decision in Plessy v. Ferguson (1896). The Plessy court had held that providing “separate but equal” public schools for African-American students was consistent with the equal protection clause of the 14th Amendment. If the Brown court had considered only the text of the equal protection clause as it was understood by the ratifiers (the 39th Congress), it would have had little choice but to affirm Plessy. After all, as far as the ratifiers were concerned, African-American public schools could be just as good as white public schools.
But this decision would not have been correct. By 1954, it was clear that, because of Jim Crow and unequal funding, African-American public schools were markedly inferior to white public schools. So genuine adherence to the equal protection clause required the court to abandon rather than follow the ratifiers’ understanding and finally cease their practice of “separate but equal” for public schools.
Despite the serious problems with textualism and originalism, we can expect to hear Republicans on the Senate Judiciary Committee champion these theories in their attempt to send Judge Gorsuch to the Supreme Court. But Democrats should make clear that neither theory is prescribed by the Constitution or reflects a convincing picture of the founders’ intent. Nor, in the end, do they prevent the judicial activism that Justice Scalia supposedly abhorred. On the contrary, they are nothing more than thinly veiled disguises for modern political conservatism.

Caixin Editorial: China’s New Civil Code Will Be a Cornerstone for Reforms - Caixin Global

China’s decades-long attempts to instate an overarching law outlining the rights and responsibilities of its 1.4 billion citizens came to fruition at the recently concluded session of the country’s legislature. The National People’s Congress on March 15 approved the General Provisions of the Civil Law — a preamble to the country’s first civil code — paving the way to create a framework to resolve private disputes involving property rights and contract violations among others. Lawmakers want the fully-fledged civil code to be enacted by 2020.
Sixty-eight years after the establishment of the People’s Republic of China, the country is yet to put in place a unified civil code. Over time China has developed a patchwork civil law system with fragmented legislations. In 1986, lawmakers enacted a rudimentary bit of legislation labeled the General Principles of the Civil Law, which laid the foundation for protecting civil rights. In 1999, China passed the contract law and then a property rights law in 2007. But gaps and inconsistencies exist between these different bits of legislation. A unified civil code that clearly spells out the boundary between government and markets and the public and private spheres is much needed as China continues to deepen economic reforms and strengthen the rule of law.
After passing the preamble, the next step is to integrate existing, fragmented bits of civil legislation into a single code by 2020. But drafting an effective civil code doesn’t only involve putting together existing laws, it requires a careful study of the previous reforms to China’s civil law system and deliberating on how to align the country's legal system to keep pace with its rapid social and economic modernization process.
As China shifts to a slower growth track, many social problems that were previously subsumed by the breakneck speed of growth have started to emerge. This has also opened up a window of opportunity for comprehensive reforms, but it is difficult to make progress given deep rooted vested interests among certain groups at all levels. Judicial reform, especially the formulation of a civil code, is critical to push forward China’s reform efforts.
The fundamental principles enshrined in the civil code are equality, freedom, justice and integrity that form the foundation of a market economy. It has been 25 years since China established a “socialist market economy,” that pledged to create a level playing field for all players in the economy. But reality is far from it. Inadequate protection for private or individual rights, slow judicial reforms and the lack of integrity has made it difficult for economic actors to do business in good faith or rely on the spirit of a social contract. This has led to extra transaction costs, price distortions, market chaos and the inefficient allocation of resources.
Violation of individual rights, especially private property rights, is a widespread issue and an effective civil code is vital to addressing this problem. Since the third plenum of the Communist Party’s 18th National Congress in late 2013, the central government has reiterated the importance of protecting property rights and issued key documents mapping out reforms to safeguard property rights. These efforts are in line with the spirit of the civil code. Its General Provisions say “legitimate personal and property rights are protected by the law and shall not be violated by any individual or organization.” This provision must be definitely implemented.
The civil code should serve as a guide to China’s economic reform agenda. It should be codified with a rigorous structure and follow reasonable standards. Lawmakers must adopt a scientific and rational approach to it, while an open and inclusive spirit that is tolerant of Chinese characteristics would also be essential in the formulation of such a code.
First, it must emphasize such concepts as the autonomy of will in private law and freedom of contract, which form the unshakeable foundation of any market economy. Otherwise, the government’s ability to interfere with private rights will be unrestrained. The civil code should give credence to the idea that “absence of legal prohibitions means freedom.”
Next, it should also address some of the legal issues that have caused public concern such as the vague legal provisions dealing with the expiration of land use rights.
Chinese homeowners do not legally own the land on which their homes are built. Instead, they lease the rights to use the property for a limited number of years from the government, an arrangement that creates uncertainty for buyers. The lack of clear provisions in the current Property Law has created a legal limbo and fueled public anxiety about what will happen when the lease period is over. Boosting individuals’ confidence on the security of their private assets requires detailed, transparent laws.
The process of formulating a civil code will be beset with challenges given that groups with vested interests operate at all levels. There will be tough battles ahead for top policymakers and judicial authorities who are striving to make the civil code an effective shield to protect civil rights. It requires a strong resolution, unwavering determination and most of all — patient wisdom.
China’s civil code will be a turning point in its history, similar to the Napoleonic civil code or the German civil code, which cleared obstacles and paved the way for development for future generations. Lawmakers with great commitment and vision will be able to turn the civil code into a “capstone” of China’s market-oriented economic system.

Finding the story at the back of the line ~ Jimmy Breslin

Why Jimmy Breslin Matters: Fresh Truths, Bluntly Told

Tuesday, March 21, 2017

How to Read What Comey Said Today - Lawfare

How to Read What Comey Said Today - Lawfare
by Benjamin Wittes (Brookings Institution)
***What is clear is that this was a very bad day for the President. In it, we learned that there is an open-ended Russia investigation with no timetable for completion, one that's going hang over Trump's head for a long time, and one to which the FBI director is entirely committed. 

Saturday, March 18, 2017

What Gorsuch Has in Common With Liberals - The New York Times

What Gorsuch Has in Common With Liberals - The New York Times 
by Akhil Reed Amar (Yale Law School)
***As this recent case, Pena-Rodriguez v. Colorado, illustrates, originalists must honor not just the original understanding of words ratified in 1787-88, but also the letter and spirit of language added by later generations of amenders. In Justice Kennedy’s words, the “imperative to purge racial prejudice from the administration of justice was given new force and direction by the ratification of the Civil War Amendments.”
This willingness to give due weight to the original vision of amending generations — Reconstruction Republicans in the 1860s, woman suffrage advocates and other Progressive Era crusaders in the 1910s, civil rights reformers in the 1960s — is what separates true originalists from false prophets. Justice Scalia, alas, frequently failed this test, especially in cases involving women’s equality and other birthright-equality claims.
Too often, Justice Scalia stopped reading. He failed to read the Constitution’s text all the way to the end — to give due weight to its transformative amendments added by post-founding reformers. *** 

Friday, March 17, 2017


My friend James Doyle has been given the gift of a successful organ transplant.  His response is gratitude. When twenty years ago I survived a life threatening health crisis I picked up a book by a monk titled gratefulness is the heart of prayer. So it is.  Regardless of how we believe it all came about we should be grateful for the miracle of life - and sympathetic to those who suffer - especially the victims of war and natural disasters and the disabled - who have the least ability to avoid or mitigate their suffering.

James and I became friends in 1991.  I was reporting on an important civil rights case in the United States Supreme Court on January 15 - Martin Luther King's birthday.  I sat in the press gallery as Jim argued the cause.  In a brilliant peroration he spoke not on behalf of his client - but rather emphasized the rights of the two excluded African American jurors.  I ran out the door and met him on the front steps of the Court.  I asked him for a copy of his speech.  He tore it off a yellow legal pad and handed it to me. I wrote it up for the New Jersey Law Journal.
But there was a more important listener than me: Associate Justice Anthony Kennedy - who wrote the majority opinion ruling in James' client's favor. The Justice in an address to the American Bar Association cited James's argument as a reminder that judges must ask not merely what the law has been but what it should be.

Below is Jim's Facebook post one day after the life-saving surgery.
Amazing. Today, our Secretary of State threatened military action; our President had a tense meeting with one powerful ally and his press secretary refused to apologize to our second most; and I have nothing political to say! My Facebook friends are ALL giving, smart, spiritual in their own way, loving, and extremely good at high level debate when called for. I single out Steve Hale from Bolivar, my hometown ( or Milan); my dear mate Nick Brown and his wonderful family from Florida, by way of Kent; Jim Serra, The Godfather with a kindly eye, a cockatoo with a fu Manchu, and a great palate; Gorgeous Greta Painter and Sweet Clara Jane, my biggest fans; my two Lake Chuck wives, Susan and Cindy, who still love me and are a great help; Liz and Dick Linam, my permanent in-law's; and cousins, ex-cousins, brothers from another mother, objects of my intense flirting, assorted lawyers, judges, and District Attorney John DeRosier, and many many other good friends, especially men who have no qualms about saying they love me. Of course, my children, mothers of my seven grandchildren, brother Thomas and sis Nancy and their all-time great extended family, and my late brother Winston's large and loving group. And especially my rock, Harrison Buckner Doyle, who has kept me alive. And my son Sean Robert Broussard, also a rock. And everybody else in my wonderful life. You ALL got me through the worst time of my life. I'm looking forward to seeing all of you on the flip. AND I LOVE ALL YALL!!!!!!!!

Thursday, March 16, 2017

China: New general Principles of Civil Law Adopted

Image result for national people's congress 2017
Hong Kong Barrister Doug Clark reports that after discussion (reading) of the third draft China's National People's Congress on March 15 passed a new - long discussed- 民法总则 revision of the General Principles of Civil Law first adopted in 1986.
A chart comparing the 1986 GPCL and the 2017 General law is HERE.

 It can be found at: NPC Observer which covers the Chinese legislature.  The texts are available now only in Chinese.  As translations emerge keep an eye out at NPC Observer. A crowd sourced translation at China Law Translate is HERE.

It will come into force on 1 October 2017 (See:

A report on amendments to the draft is here:

The new law does not specifically mention the 1986 General Principles of Civil Law  民法通则 which will presumably be repealed at some point. 

Tuesday, March 14, 2017

Did Samuel Alito violate the Code of Judicial Conduct? /Steve Lubet //Slate

When he was invited to speak at the conservative Claremont Institute's annual fundraising dinner Justice Samuel Alito properly insisted that the ticket price could not exceed the cost of the meal.  But the Institute offered on its event web page another opportunity to donate: at the $10,000 level. Prof. Lubet asks if Justice Alito violated the Code of Judicial Conduct - which guides Supreme Court Justices only to the degree that the Justice deems appropriate. - gwc

Did Samuel Alito violate the Code of Judicial Conduct?

by Prof. Steven Lubet (Northwestern University Law School)
***There has been considerable pressure on the Supreme Court to adopt its own code of conduct. Legislation to that effect has been repeatedly introduced in Congress, which would, in the words of one sponsor, require the court to announce “clear, written rules that establish standards by which justices’ behavior can be guided and assessed by both themselves and the American people.”
But no code—whether used only for guidance or accepted as binding—can substitute for a justice’s own vigilance. It is impossible to know how many $10,000 donors joined the Claremont Institute’s “Host Committee” for the purpose of honoring Justice Alito, but even one would be too many. The prohibition on fundraising is long-standing principle of judicial ethics, and it is important that it be respected in both word and deed.

Sunday, March 12, 2017

Next steps for the Trump resistance - E.J. Dionne //The Washington Post

Next steps for the Trump resistance - The Washington Post
by E.J. Dionne

" the opposition must look ahead and grapple with two related questions: Who among Trump’s 2016 voters already have second thoughts about him, and how many of those still sticking with him are open to changing their minds?

Liberals who rightly condemn demeaning stereotypes of African Americans and Latinos must also oppose stereotyping Trump’s white working-class supporters. The Trump camp was not monolithic. Many of Trump’s ballots, after all, came not from blue-collar strongholds but from precincts dominated by well-off conservatives who routinely back Republicans.

And the decisive votes for Trump were not cast by the passionately committed. The media exit poll found that only 38 percent of those who participated in the 2016 election had a favorable view of Trump. That’s the base. The contest was settled by those who viewed both Trump and Hillary Clinton negatively. These pox-on-both-houses voters made up 18 percent of the electorate, and went 47 percent to 30 percent for Trump over Clinton, with most of the rest opting for third-party choices. These are the Trump agnostics. They are central to our political future.

Moreover, an important minority of white working-class Trump voters in the election’s three key states (Pennsylvania, Wisconsin and Michigan) favored Obama four years earlier. They are not right-wingers. For example, in 2012 in Erie County, Pa., Obama prevailed over Mitt Romney, 68,036 to 49,025. But in 2016, Trump carried the county, 60,069 to 58,112 for Clinton.

Switchers can switch again. This means focusing in the short term on how Trump’s policies will do severe harm to many who thought he would help them. An analysis by Nate Cohn of the New York Times found that those who stand to lose the most under the Republican health-care plan’s tax credits tended to support Trump over Clinton. Citizens who are hit in their pocketbooks usually notice."

Thursday, March 9, 2017

China introduces surprisingly progressive sex education curriculum for kids, some parents freak out: Shanghaiist

China introduces surprisingly progressive sex education curriculum for kids, some parents freak out: Shanghaiist
China has made a critical move to help reform its abysmal sex education system by introducing a surprisingly progressive curriculum for primary school students, and some parents aren't happy about it at all.
In this new curriculum which has been introduced in a handful of schools around the country, students in Grade 2 learn about gender equality, and that whatever their ambition in life may be, they can excel at it. Women can make great police officers and even astronauts, and men can be outstanding nurses and kindergarten teachers:

A step closer to finally achieving civil rights code | Shanghai Daily

A step closer to finally achieving civil rights code | Shanghai Daily

NATIONAL lawmakers yesterday started to deliberate draft general provisions of civil law, which, if adopted, will bring the country one step closer to a long-absent civil code.
With the new draft submitted to the annual session of the National People’s Congress, China’s top legislature, the country is nearing the end of its crucial first step toward a civil code — laying down basic principles.
Last year, the draft went through three readings at the bimonthly sessions of the NPC Standing Committee. It is rare for a draft law not to be passed after three readings.
After the adoption of the general provisions, lawmakers will step up work on compiling individual books on property, contract and marriage, among others, which will be integrated into a unified code.
According to the legislation plan, the code will be enacted in 2020.
Compiling a civil code, dubbed as “an encyclopedia on social life” which regulates personal and property relations, will help to “better protect the people’s immediate interests, improve state governance, maintain market order, ensure trading security, and promote the sound development of socialist market economy,” Li Jianguo, vice chairman of the NPC Standing Committee, said while explaining the draft yesterday at an NPC plenary meeting.
The draft, based on the General Principles of Civil Law adopted in 1986, deals with a variety of issues, ranging from ecological conservation to property protection and the guardianship system.
Green principle
The draft establishes a “green” principle, stipulating that in their civil activities, civil subjects must be aware of the need to save resources and protect the environment.
This reflects the country’s new development concepts and the fact that China, with its huge population, has to strike a balance between people and the environment for a long time to come, Li said.
“Legislative efforts are needed to ensure civil subjects better fulfill their obligations in environmental protection,” said national lawmaker and jurist Wu Qing.
Fetuses that require protection for the succession of estates and reception of donations shall be deemed as having the capacity for civil law rights, according to the draft.
“This is a step forward. Rights of a life without capacity for conduct still need protecting,” said Shen Guoming, deputy head of the China Society of Jurisprudence.
The draft lowers the statutory age limit of minors with limited capacity for civil conduct from 10 to 6 years, for the purpose of attaching more attention to minors’ own discretion.
The draft also highlights the protection of online virtual assets and data, as incidents of personal information leakage have increased in recent years.
In addition, the draft adds provisions on rural economic collectives and villagers’ committees, among others, to help them to better participate in civil life, and protect the members’ legitimate rights and interests.
“Each and every provision embodies the will of the people,” said national lawmaker Sun Xianzhong, deputy head of the China Civil Law Society, who has spent years pushing for a civil code of China.
The road towards a civil code, a dream for generations of Chinese, has been bumpy.
Civil rights and civil code were virtually unheard of for Chinese living under imperial autocracy. It wasn’t until late Qing Dynasty (1644-1911) that the concept of civil code was first put forward, followed by a failed attempt by the Qing government to introduce a code.
Since the People’s Republic of China was founded in 1949, the central authority has strived to build a modern country under the rule of law, of which a civil code is an integral part.
In 1954, 1962, 1979 and 2001, China made separate attempts to draft a civil law, only to halt due to political turmoil and other reasons.
For example, the second attempt was interrupted by the chaotic Cultural Revolution (1966-1976), a dark decade in which human rights were trampled and laws could hardly protect anyone.
Nonetheless, the General Principles and other separate civil laws promulgated over the past decades, including the Property Law, the Tort Liability Law and Inheritance Law, have laid good groundwork for a civil code.

Wednesday, March 8, 2017

How ACA Repeal Would Worsen the Opioid Epidemic — NEJM

How ACA Repeal Would Worsen the Opioid Epidemic — NEJM: Perspective from The New England Journal of Medicine — How ACA Repeal Would Worsen the Opioid Epidemic

***Although the Affordable Care Act (ACA) was not designed with the opioid epidemic in mind, it provides valuable tools for expanding access to medication treatment: major health insurance coverage expansions through Medicaid and the establishment of state health insurance marketplaces, inclusion of addiction treatment as an essential health benefit that existing insurance plans must cover, and requirements that benefits for treatment of opioid use disorder be provided at parity with coverage of medical and surgical procedures. The dramatic rise in opioid use disorders has prompted many states to take a hard look at deficiencies in their current systems of treatment and to leverage opportunities presented by the ACA for addressing them.
Yet the future of the ACA is precarious at best. President Donald Trump has professed his intention to repeal the law, with the support of a Republican-dominated Congress. Through Medicaid expansion and state health insurance marketplaces, the ACA has extended health insurance coverage to at least 20 million Americans who would otherwise have been uninsured. 

Sentencing Law and Policy: Texas executes paid hit-man ... after Justice Breyer dissents from SCOTUS refusing to consider extended solitary death row stay

Sentencing Law and Policy: Texas executes paid hit-man ... after Justice Breyer dissents from SCOTUS refusing to consider extended solitary death row stay
(AP)***Notably, as revealed here, Justice Breyer's solo dissent from the denial of a stay by SCOTUS was fairly substantive. Here is how it starts and ends:
Petitioner Rolando Ruiz has been on death row for 22 years, most of which he has spent in permanent solitary confinement. Mr. Ruiz argues that his execution “violates the Eighth Amendment” because it “follow[s] lengthy [death row] incarceration in traumatic conditions,” principally his “permanent solitary confinement.” Petition 25. I believe his claim is a strong one, and we should consider it....
Here the “human toll" that accompanies extended solitary confinement is exacerbated by the fact that execution is in the offing.  Moreover, Mr. Ruiz has developed symptoms long associated with solitary confinement, namely severe anxiety and depression, suicidal thoughts, hallucinations, disorientation, memory loss, and sleep difficulty.  Further, the lower courts have recognized that Mr. Ruiz has been diligent in pursuing his claims, finding the 22-year delay attributable to the State or the lower courts.  Ruiz v. Quarterman, 504 F. 3d 523, 530 (CA5 2007) (quoting Ruiz v. Dretke, 2005 WL 2620193, *2 (WD Tex., Oct. 13, 2005)). Nor are Mr. Ruiz’s 20 years of solitary confinement attributable to any special penological problem or need. They arise simply from the fact that he is a prisoner awaiting execution. App. E to Petition 16.
If extended solitary confinement alone raises serious constitutional questions, then 20 years of solitary confinement, all the while under threat of execution, must raise similar questions, and to a rare degree, and with particular intensity.  That is why I would grant a stay of execution, allowing the Court to examine the record more fully.

Why Repeal and Replace Is Going So Badly

Why Repeal and Replace Is Going So Badly
by Josh Marshall //Talking Points Memo
The outlook for the GOP leaderships' 'repeal and replace' bill looks bleak. That said, I would not underestimate the ability of GOP leaders to get their members to vote for basically anything in the crunch. Also remember that House Republicans have a 20+ vote cushion. But it's worth reviewing what I believe are three key reasons why the current legislation looks to be on life support just a day after it was released.
***big change in the American system requires laws. Whether it's on Obamacare or tax reform or anything else. It's hard. President Trump doesn't want to do it.
Now, President Obama also came to rely on executive orders in the latter part of his presidency. But remember, he faced an implacable Republican Congress. Trump faces a pliant one. Even with total control of the government, executive orders are all he has energy to focus on. When it's not executive orders, President Trump is off on rage tangents yelling at the air over fantasies about his predecessor, well out of office, plotting against him. I talk DC lobbyists now and then, ones in Trump's crosshairs and those he supposedly favors and none of them have any idea what he's going to do from one day to the next. That's not strategic ambiguity. It just keeps anyone from doing anything. Could Trump put more time into this if he weren't in the midst of a mini-constitutional crisis over accusing his predecessor of illegally wire-tapping him? Probably so ...
As I noted in Point #1, Republicans gained electoral advantage by setting a trap they really had no way to solve. But presidential engagement and focus would have made a great deal of difference. It's not there.
At the end of the day, the consequences for Republicans if they can't do anything are astonishingly large. I would not count them out. But it's a tall order. And it's not just passage. It's surviving the consequences next year.

Monday, March 6, 2017

Strategies toStabilize ACA Marketplaces: Lessons from Medicare // Robert Wood Johnson Foundation

Image result for georgetown center on health insurance
Strategies to Stabilize ACA Marketplaces: Lessons from Medicare // Robert Wood Johnson Foundation

The Affordable Care Act’s (ACA) health insurance reforms have led to a dramatic decline in the number of uninsured people and improved the overall quality of coverage for many. At the same time, the health insurance marketplaces created by the law are still in flux. Drafters of the ACA envisioned that the early years of the insurance reforms and marketplaces would be a time of instability and crafted provisions designed to assuage insurers’ concerns about the health risks of the marketplace population and the limits on their ability to control costs by denying coverage to people with pre-existing conditions.

However, while some insurers are doing well and expanding their presence on the ACA marketplaces, many of the private insurance companies upon which the success of the marketplaces depends have experienced losses. Some are reducing the scope of their marketplace participation, raising premium rates, or both, raising concerns among some about the long-term stability of the marketplaces.