Thursday, January 31, 2019

Charles J. Hynes, Brooklyn D.A. in a Tumultuous Era, Dies at 83 - The New York Times

Joe Hynes, as everyone knew him, was the last of the Brooklyn Irish era in City politics.  As Kings County District Attorney he was long a daily Mass guy.  His sense of justice led Mario Cuomo to pick him as special prosecutor in the racist mob killing of Michael Griffith known as the Howard Beach case.  He wanted to be New York State Attorney General but that didn't pan out.
He was a dedicated teacher, recruiting young Assistant district Attorneys straight out of his classes at St. John's, Brooklyn, and Fordham law schools.
He stopped for a cup of coffee and a chat with students or a friend just before class.  My office was for several years just off the cafeteria so I often had a chance to chat.  His sins were venial, but his body was mortal. I liked and admired him. - gwc
Charles J. Hynes, Brooklyn D.A. in a Tumultuous Era, Dies at 83 - The New York Times: Mr. Hynes took the office after prosecuting the Howard Beach case and won convictions against corrupt officials, but controversy dogged his final years on the job.

Saturday, January 26, 2019

Bishop Stowe: Why the MAGA hats at the March for Life? | America Magazine

Bishop Stowe: Why the MAGA hats at the March for Life? | America Magazine: “Without engaging the discussion about the context of the viral video or placing the blame entirely on these adolescents,” the Lexington, Ky., bishop wrote in the Lexington Herald-Leader, “it astonishes me that any students participating in a pro-life activity on behalf of their school and their Catholic faith could be wearing apparel sporting the slogans of a president who denigrates the lives of immigrants, refugees and people from countries that he describes with indecent words and haphazardly endangers with life-threatening policies.”

Friday, January 25, 2019

A memorable day: the cookie crumbles.

Statement of the Speaker of the House after the shutdown ended.

The indictment of Roger Stone makes clear that there was a deliberate, coordinated attempt by top Trump campaign officials to influence the 2016 election and subvert the will of the American people.  It is staggering that the President has chosen to surround himself with people who violated the integrity of our democracy and lied to the FBI and Congress about it.

“In the face of 37 indictments, the President’s continued actions to undermine the Special Counsel investigation raise the questions: what does Putin have on the President, politically, personally or financially? Why has the Trump Administration continued to discuss pulling the U.S. out of NATO, which would be a massive victory for Putin?

“Lying to Congress and witness tampering constitute grave crimes.  All who commit these illegal acts should be held accountable to the fullest extent of the law.  We cannot allow any effort to intimidate witnesses or prevent them from appearing before Congress. 

“The Special Counsel investigation is working, and the House will continue to exercise our constitutional oversight responsibility and ensure that the Special Counsel investigation can continue free from interference from the White House.”

Thursday, January 24, 2019

Grave of Australian explorer discovered

Michael Bennet (D-CO) reams Ted Cruz and GOP

The MAGA hat is not a statement of policy. It’s an inflammatory declaration of identity. - The Washington Post

The MAGA hat is not a statement of policy. It’s an inflammatory declaration of identity. - The Washington Post
by Robin Givhan
Fashion Critic

...The hat figured prominently in the viral video of young Nick Sandmann’s eye-to-eye encounter with the elderly Native American drummer, Nathan Phillips, at the Lincoln Memorial. Sandmann stood his ground. He had every right to remain there, the high schooler said during an interview on “Today.” Sandmann did not seem to consider whether it was actually the right thing to do.
How drastically his appearance changed from the fateful moment on the Mall to his appearance on national television. The world met Sandmann when he was wearing a red MAGA hat and a quilted parka. His mouth was turned up in a thin, wide smile that occasionally expanded into a toothy one. When he appeared on television to defend himself against accusations of racism and disrespect, he wore a heather gray zip-front pullover and a button-down shirt. His short brown hair was shiny. His large eyes rarely blinked. His voice was flat. The MAGA hat was gone....

Wednesday, January 23, 2019

Sunday, January 20, 2019

Saturday, January 19, 2019

GOP ~ starve the beast ideologues Barkan ~ Guardian

Republicans’ lack of alarm over the shutdown reveals a disturbing truth

Friday, January 18, 2019

Correcting and parsing the Buzzfeed story

Torts Today: A2J: Neil Gorsuch pens a devastating takedown of his own most important opinion – Ian Millhiser - ThinkProgress

The Supreme Court sided with a worker over a corporation in a case involving the Federal Arbitration Act on Tuesday. For those unfamiliar with the Court’s arbitration decisions, that happens about as often as a unicorn wins the Powerball lottery while simultaneously being struck by lightning.
Torts Today: A2J: Neil Gorsuch pens a devastating takedown of his own most important opinion – Ian Millhiser - ThinkProgress: Ian Millhiser, a frequent scourge of the Supreme Court's reactionary rulings, introduces the concept of the Gorsuch Brief - a narrow arg...

Tuesday, January 15, 2019

Northeast Jesuits List Members Credibly Accused of Abuse of Minors

Image result for john l farrand sj
Northeast USA Jesuit Provincial Fr. John J. Cecero, S.J.has released a list of fifty Jesuits of the Province who since 1950 have been credibly accused of sexual abuse of minors. The Society's full statement is HERE

Fr. Cecero writes:
At the heart of this crisis is the painful, sinful and illegal harm done to children by those whom they should have been able to trust. We did not know any best practices to handle these violations many decades ago and regrettably made mistakes along the way. What winds up being a very shameful history for the Church at large was made clear by investigative reporting in Boston in 2002. It was the subsequent Dallas Charter that was accepted by the US Bishops that allowed us to codify and implement best practices. Under the watchful eye of our accreditation agency, Praesidium, Inc., we have implemented these best practices for more than fifteen years and can be grateful, although no less vigilant, that there have been no new cases of abuse of minors or vulnerable adults in the Northeast Province.Changed practices do not erase past history. The list I publish today notes criminal and sinful failures in the pastoral care of children. 

I looked, of course for the names of my many Jesuit teachers at my high school Brooklyn Prep, and college - Holy Cross.  The only one was my high school French teacher the late Fr. John Farrand, S.J. - a favorite.  Off duty he wore a jaunty beret as I recall.  We rode the IRT with him to Greenwich Village.  I remember going to the Fat Black Cat and other coffee shops,  and a play in a little west village theatre.  And I remember him staging Tartuffe, a  Moliere comedy - in French, of course.

A little research disclosed that the accusation against him was  for an offense in 1961.  His first at Prep, my junior year, perhaps when I was in his class.  I don't know, of course, what pain he caused to my aggrieved classmate.  But it is a sad report for me.  I know that sexual sins are common, not limited to celibates who have taken vows of poverty, chastity, and obedience.  And I know that a breach of student-teacher trust is a very serious sin.  But it makes me sad because John Farrand was a bright spot in a Jesuit education that I treasure.  He served me and many others well.  I am sorry for him and any others against whom he sinned. - gwc

Sunday, January 13, 2019

On What Grounds Can the FBI Investigate the President as a Counterintelligence Threat? - Lawfare

On What Grounds Can the FBI Investigate the President as a Counterintelligence Threat? - Lawfare: Questions about the legal basis for, and prudence of, treating the president as a national security threat.
by Jack Goldsmith (Harvard Law School)
Because the president determines the U.S. national security interest and threats against it, at least for the executive branch, there is an argument that it makes no sense for the FBI to open a counterintelligence case against the president premised on his being a threat to the national security. The president defines what a national security threat is, and thus any action by him cannot be such a threat, at least not for purposes of opening a counterintelligence investigation.
On this view of the presidency, the perverse and very controversial steps Trump has taken toward Russia as president—his disclosure of classified information to the Russian ambassador in the Oval Office; his firing of Comey because of the Russia investigation; his persistent refusal to acknowledge what his director of national intelligence described as Russia’s “ongoing, pervasive efforts to undermine our democracy”; and more—are all part of his ultimate discretion to conduct foreign policy and U.S. intelligence operations. Those actions, therefore, cannot pose a threat to a national security as a justification for a counterintelligence investigation. That may sound like an extreme conclusion, but I might follow from Article II, and I think (as I explain below) that not accepting this conclusion leads to equally if not more problematic consequences.

What if the Obstruction Was the Collusion? On the New York Times’s Latest Bombshell - Lawfare

What if the Obstruction Was the Collusion? On the New York Times’s Latest Bombshell - Lawfare: Between Friday’s New York Times story and other earlier material, we might be in a position to revisit the relationship between the “collusion” and obstruction components of the Mueller investigation.
by Benjamin Wittes

Friday, January 11, 2019

What if the Obstruction Was the Collusion? On the New York Times’s Latest Bombshell - Lawfare

What if the Obstruction Was the Collusion? On the New York Times’s Latest Bombshell - Lawfare: Between Friday’s New York Times story and other earlier material, we might be in a position to revisit the relationship between the “collusion” and obstruction components of the Mueller investigation.
by Benjamin Wittes

The Palestinian struggle is shifting to a civil rights movement, and Gaza is leading the way | +972 Magazine

The Palestinian struggle is shifting to a civil rights movement, and Gaza is leading the way | +972 Magazine
The Great Return March signals a shift for the Palestinian people, says scholar Tareq Baconi. Palestinians are no longer fighting for a state, and are increasingly demanding their full rights — primarily the right of return.

Whistling in the wind? Independent judgment at the OLC

Wednesday, January 9, 2019

ABA ethics opinion 483 Handling breaches of client data

Tuesday, January 8, 2019

Suicide of a great democracy Packer

Here’s the biggest thing standing between Donald Trump and his wall – ThinkProgress

Here’s the biggest thing standing between Donald Trump and his wall – ThinkProgress
by Ian Millhiser

The Fountainhead

There is an annual tradition in Justice Thomas’ household. Every summer he invites his four law clerks to his home to watch the 1949 film adaptation of Ayn Rand’s The Fountainhead. It is, at once, a tribute to Thomas’ self-image as a man who “stood alone against the men of his time,” and a celebration of Thomas’ libertarian economic values.
There’s little question what Ayn Rand would have thought about a president who orders the military to take land from private citizens. Indeed, the idea that an American president would give such an order seems so ridiculous on its face that it’s easy to imagine such an order providing the central conflict of an entire Ayn Rand novel.
The question, if a real life villain gives such an order, is what set of values the Supreme Court will bring to the table. Recent history suggests that the Court’s conservatives will look the other way. Inter arma enim silent leges.

Access to Justice | American Academy of Arts and Sciences

Daedalus - the journal of the American Academy of Arts and Sciences has published an entire issue on Access to Justice (A2J).  It is the first ever open access online issue of Daedalus.  Of particular note to me are Tonya Brito (Wisconsin) on the right to civil counsel, Robert Gordon on the history of lawyers support for access to justice, and Dean Andrew Perlman (Suffolk) on what law schools can do about it. I have copied the abstracts and links below- gwc
Access to Justice | American Academy of Arts and Sciences


“Emblazoned on the facade of the United States Supreme Court building are four simple words intended to embody the overriding principle of the U.S. legal system: EQUAL JUSTICE UNDER LAW. Yet after more than 225 years, the nation still has not developed the means to fulfill this principle.”

AUTHORS John G. Levi and David M. Rubenstein
How Rising Income Inequality Threatens Access to the Legal System

Incentives that lead sellers to introduce quality improvements and cost-saving innovations in competitive markets also ensure that no opportunity to cheat consumers remains unexploited. That difficulty underlies many American laws. But many people lack the income necessary to pay for legal interventions against unjust treatment, preventing them from meeting basic needs, like protection against financial fraud and abusive relationships. Growing income inequality has made this justice gap worse by reducing public funds available for legal aid in real terms, while also making it more difficult for low-income people to make ends meet. Simple policy changes could ease both problems without sacrifices from anyone. Those who could afford tax increases necessary to pay for more social services, including competent legal representation for everyone, resist this step because they believe that it would make it harder to buy the special things they want. But that belief is incorrect because the supply of special things is limited. The ability to bid successfully for them is unaffected by higher taxes, which do not affect relative purchasing power.

AUTHOR Robert H. Frank

The Invisible Justice Problem

Understanding is sparse about the lives of people who are poor and struggling economically and who need help in solving a legal problem and don’t get it. Politics over the past half-century has made them largely invisible. In that period, attacks of the right on the provision of access to justice have rested on the triumph of laissez-faire views: the fresh embrace of markets and the free-enterprise system. The upshot has been the winner-take-all economy of the past generation, in which improved access to justice is largely a nonissue. For access to become a priority of a national movement, it needs champions in national politics, not just in the legal profession. It needs powerful champions who advocate for greatly increased and improved access to justice as a primary American commitment.

AUTHOR Lincoln Caplan

Reclaiming the Role of Lawyers as Community Connectors

With the prospect of nonlawyers stepping in to do low-fee legal work, how should the legal profession conceive of its relationship to that work and ensure that nonlawyers bolster rather than undermine the value that lawyers add to society? Lawyers should reclaim their role as connectors in their communities: interstitial figures with the knowledge, skill, and trust to help resolve disputes, move beyond stalemates, dispel tensions, and otherwise bring people and resources together in productive solutions. They should do so, at least in part, through pro bono work for poor and low-income clients. It would be a mistake to stand in the way of innovative solutions to the justice gap. But it would also be a mistake, and a deep loss, if lawyers – particularly those who do not normally represent poor and low-income clients – turned their backs on the poor and low-income segments of our society.

AUTHORS David Frank Levi, Dana Remus, and Abigail Frisch

More Markets, More Justice

People lack access to justice because the law is complex and expensive to use. Basic mechanisms of market competition can reduce both the complexity and the cost of law while securing law’s principal function in society, which is to coordinate a community around a shared understanding of what is and what is not allowed. Creating markets for rules will make for better law and better legal systems by allowing people and organizations to select the rules and dispute-resolution processes that are best for them in a market in which providers of regulation compete on terms of cost and quality. Legal rules require special protection to make sure they deliver a more just, equitable world for all; this protection can be provided through a “superregulator,” which licenses providers of law and legal services to sell their services in competitive markets.

AUTHOR Gillian K. Hadfield

Access to What?

The access-to-justice crisis is bigger than law and lawyers. It is a crisis of exclusion and inequality. Today, access to justice is restricted: only some people, and only some kinds of justice problems, receive lawful resolution. Access is also systematically unequal: some groups – wealthy people and white people, for example – get more access than other groups, like poor people and racial minorities. Traditionally, lawyers and judges call this a “crisis of unmet legal need.” It is not. Justice is about just resolution, not legal services. Resolving justice problems lawfully does not always require lawyers’ assistance, as a growing body of evidence shows. Because the problem is unresolved justice issues, there is a wider range of options. Solutions to the access-to-justice crisis require a new understanding of the problem. It must guide a quest for just resolutions shaped by lawyers working with problem-solvers in other disciplines and with other members of the American public whom the justice system is meant to serve.

AUTHOR Rebecca L. Sandefur

The Right to Civil Counsel

The U.S. Constitution grants no categorical right to counsel in civil cases. Undaunted, the legal profession’s renewed effort to improve access to justice for low-income unrepresented civil litigants includes a movement to establish this right. How this right is implemented turns out to be as important as whether such a right exists. To be effective, any new right must be national in scope, adequately funded, and protected from political influence. Lawyers must be available early and often in the legal process, so that they can provide assistance for the full scope of their client’s legal problem and prevent further legal troubles. A right to civil counsel should encompass proceedings where basic needs are at stake, and not be influenced by inadequately informed judgments of who is worthy of representation.

AUTHOR Tonya L. Brito

The New Legal Empiricism & Its Application to Access-to-Justice Inquiries

The United States legal profession routinely deals with evidence in and out of courtrooms, but the profession is not evidence-based in a scientific sense. Lawyers, judges, and court administrators make decisions determining the lives of individuals and families by relying on gut intuition and instinct, not on rigorous evidence. Achieving access to justice requires employing a new legal empiricism. It starts with sharply defined research questions that are truly empirical. Disinterested investigators deploy established techniques chosen to fit the nature of those research questions, following established rules of research ethics and research integrity. New legal empiricists will follow the evidence where it leads, even when that is to unpopular conclusions challenging conventional legal thinking and practice.

AUTHOR D. James Greiner

The Public’s Unmet Need for Legal Services & What Law Schools Can Do about It

Civil legal services in the United States are increasingly unaffordable and inaccessible. Although the causes are complex, law schools can help in three ways beyond simply offering free legal clinics staffed by lawyers and students. Law schools can teach the next generation of lawyers more efficient and less expensive ways to deliver legal services, ensure that educational debt does not preclude lawyers from serving people of modest means, and conduct and disseminate research on alternative models for delivering legal services. These strategies will not solve all of the problems that exist, but they hold the promise of meaningfully improving the affordability and accessibility of civil legal services.

AUTHOR Andrew M. Perlman

Access to Power

The traditional approaches to “access to justice” obscure the current distribution of economic, social, and political power, and how that distribution favors those who have power and burdens those who do not. Consequently, the traditional approaches foreclose possibilities for a truly just society. In the law clinic we led together for five years, we developed models of lawyering with our students and community partners focused on how lawyers can contribute to the redistribution of power in society from those who accumulate and deploy it to those who are deprived of it.

AUTHORS Sameer Ashar and Annie Lai
The Center on Children & Families

The University of Florida Levin College of Law Center on Children and Families addresses the instability many children face due to a wide range of challenges. They include poverty, violence, and the criminalization of youth of color. They also include inadequate health care, substandard educational opportunity, and the general failure of systems designed to support, protect, and treat children who are classified as dependent, delinquent, or otherwise in need. The Center’s model rests on five premises that Professor Barbara Woodhouse and colleagues identified in their scholarship as essential for addressing crises rather than mitigating symptoms: curriculum, scholarship, conferences, advocacy, and clinics. Over the years, the Center has held numerous conferences to advance groundbreaking, practical research on family law and children’s rights and has held youth summits in connection with those conferences to engage with youth on relevant legal issues. These efforts remain at the conceptual heart/core of the Center’s work.

AUTHOR Shani M. King

Techno-Optimism & Access to the Legal System

For legal technologists, apps raise the prospect of putting the law in the hands of disadvantaged people who feel powerless to deal with their legal problems. These aspirations are heartening, but they rest on unrealistic assumptions about how people living in poverty deal with legal problems. People who are poor very rarely resort to the law to solve their problems. In the situations when they do seek solutions, they confront educational and material impediments to finding, understanding, and using online legal tools effectively. Literacy is a significant barrier. More than 15 percent of all adults living in the United States are functionally illiterate, meaning that, at best, they read at the fourth-grade level. Inadequate access to the Internet and limited research skills compound the challenges. To reach people from marginalized groups, access-to-justice technologies need to be integrated with human assistance.

AUTHOR Tanina Rostain

Marketing Legal Assistance

Much of the American conversation about access to justice focuses on regulatory barriers to new forms of service delivery and treats regulatory resistance as the primary problem to be solved. Meanwhile, obstacles to consumer awareness and engagement have received less attention. This essay reverses the order of analysis and considers strategies for expanding access first from a marketing perspective. What models of legal assistance have been most successful in building consumer awareness and trust? To what extent can successful marketing help to sidestep or overcome regulatory resistance? And what are the implications for reformers interested in expanding access to justice?

AUTHOR Elizabeth Chambliss

Community Law Practice

Community-embedded law practices are small businesses that are crucial in addressing the legal needs that arise in neighborhoods. Lawyers in these practices attend to recurring legal needs, contribute to building a diverse profession, and spur community development of modest-income communities through legal education and services. Solo practitioners and small firm lawyers represent the largest segment of the lawyer population in the United States, yet their contributions to addressing the legal needs of modest-income clients are rarely recognized or studied. This essay sheds light on the characteristics, motivations, and challenges these law practices face in providing access to justice to modest-means communities.

AUTHOR Luz E. Herrera

The Role of the Legal Services Corporation in Improving Access to Justice

The Legal Services Corporation is the United States’ largest funder of civil legal aid for low-income Americans. The LSC funds legal-aid programs that serve households with annual incomes at or below 125 percent of the federal poverty guideline. Legal-aid clients face a wide variety of civil legal problems: wrongful evictions, mortgage foreclosures, domestic violence, wage theft, child custody and child support issues, and denial of essential benefits. This vital work is badly underfunded. The shortfall between the civil legal needs of low-income Americans and the resources available to address those needs is daunting. Federal funding is necessary because support for civil legal aid varies widely from state to state. The LSC uses the “justice gap” metaphor to describe the shortfall between legal needs and legal services. Narrowing the gap is central to the LSC’s mission.

AUTHOR James J. Sandman

Participatory Design for Innovation in Access to Justice

Most access-to-justice technologies are designed by lawyers and reflect lawyers’ perspectives on what people need. Most of these technologies do not fulfill their promise because the people they are designed to serve do not use them. Participatory design, which was developed in Scandinavia as a process for creating better software, brings end users and other stakeholders into the design process to help decide what problems need to be solved and how. Work at the Stanford Legal Design Lab highlights new insights about what tools can provide the assistance that people actually need, and about where and how they are likely to access and use those tools. These participatory design models lead to more effective innovation and greater community engagement with courts and the legal system.

AUTHOR Margaret Hagan

Simplified Courts Can’t Solve Inequality

State civil courts struggle to handle the volume of cases before them. Litigants in these courts, most of whom are unrepresented, struggle to navigate the courts to solve their problems. This access-to-justice crisis has led to a range of reform efforts and solutions. One type of reform, court simplification, strives to reduce the complexity of procedures and information used by courts to help unrepresented litigants navigate the judicial system. These reforms mitigate but do not solve the symptoms of the larger underlying problem: state civil courts are struggling because they have been stuck with legal cases that arise from the legislative and executive branches’ failure to provide a social safety net in the face of rising inequality. The legal profession and judiciary must step back to question whether the courts should be the branch of government responsible for addressing socioeconomic needs on a case-by-case basis.

AUTHORS Colleen F. Shanahan and Anna E. Carpenter

Corporate Support for Legal Services

The gap in pro bono legal services provided by corporate legal departments and large private law firms is not surprising: The formalization of pro bono work by large firms has been underway on a significant scale for far longer than it has within corporations. This process has made large firm pro bono efforts more efficient and effective through improved practices. It has also led firm leaders and lawyers generally to expect more volunteerism of this sort. Companies that apply their resources, business experience, or other assets have successfully expanded the impact of their pro bono hours. Because of the scale of this need, and because legal-services lawyers have specialized expertise that corporate lawyers can’t easily replicate, corporate pro bono efforts will not, on their own, close the justice gap. But these efforts have the potential to contribute significantly more to the ability of legal-aid organizations to serve their clients, and to help close this gap.

AUTHOR Jo-Ann Wallace

Justice & the Capability to Function in Society

All over the world, civil legal problems are ubiquitous. But while all groups in every society that has been studied experience civil justice problems, these problems and their consequences do not fall equally. Socially disadvantaged people report more problems, more serious problems, and more negative consequences from them. The lack of legal capability – the lack of the capacity to understand and act on justice problems – plays a key role in creating these inequalities. A growing evidence base should support and enable global, national, and other policy-makers to achieve stated policy goals and enable people to respond effectively to the myriad legal problems that can threaten their aspirations and well-being.

AUTHORS Pascoe Pleasence and Nigel J. Balmer

Why Big Business Should Support Legal Aid

Corporations are part of the fabric of society. As members of American society – often, very powerful and influential ones – corporations have a deep interest in the health of the nation’s democracy, a mainstay of which is the system of justice writ large. The concept of justice for all is so important to this democracy that the founders placed it in the Constitution’s first line. But the system is not perfect. Attaining equal justice for all citizens and governing by the rule of law too often are merely aspirations. Corporations have a stake in ensuring that their disputes with others are resolved fairly, in a legal system that is viewed as treating all litigants equally under the law, regardless of size, wealth, or power. Corporate engagement in strengthening legal services in the United States is, in this way, an expression of corporate self-interest.

AUTHOR Kenneth C. Frazier

Executive Branch Support for Civil Legal Aid

For government, access to justice is about more than legal justice. Legal services are essential tools to enable government programs to achieve a wide range of goals that help to provide an orderly, prosperous, and safe country. Recent efforts have transformed how some federal and state government officials think about and use civil legal aid to get their work done. Key in convincing them has been empirical evidence about the effectiveness and cost-efficiency of including legal services alongside other supportive services.

AUTHOR Karen A. Lash
Why Judges Support Civil Legal Aid

To fulfill their role as neutral deciders in an adversarial legal system, judges need lawyers. Unrepresented litigants tax the court system and burden the people who work in it. Judges around the country, of all political stripes, are resolute in their support of civil legal aid. Judges support civil legal aid because they value equal justice and the protection of the disadvantaged. They support legal aid because it assists in the efficient and effective administration of the courts they run. They also support legal aid out of self-interest, because it makes their work lives less threatened and more effective.

AUTHOR Fern A. Fisher

Lawyers, the Legal Profession & Access to Justice in the United States: A Brief History

Ideally, justice is a universal good: the law protects equally the rights of the rich and powerful, the poor and marginal. In reality, the major share of legal services goes to business entities and wealthy people and the prestige and prosperity to the lawyers who serve them. This essay deals with the history of access to justice – chiefly civil justice – and with the role of lawyers and organized legal professions in promoting and restricting that access. In the last century, legal professionals and others have taken small steps to provide access to legal processes and legal advice to people who could not otherwise afford them. By doing so, they have inched closer to the ideals of universal justice. Though the organized bar has repeatedly served its own interests before those of the public, and has restricted access to justice for the poor, it has been a relatively constructive force.

AUTHOR Robert W. Gordon
The Twilight Zone

“Justice for only those who can afford it is neither justice for all nor justice at all.”

Author: Nathan Hecht

Will the courts stop a Trump border wall emergency order?

Image result for invading hordes at the gates of the city
Barbarians at the gates - the sack of Rome 410 A.D.
We haven't heard the speech or seen the Declaration of Emergency and its legal rationale but...

I'm about to begin the spring semester and will be teaching Remedies.  The bulk of the course focuses on the body of law known as Equity.  Injunctions are the archetypal  remedy where money damages will not suffice.  

As you know a tsunami of commentary is about to hit the shores as Donald Trump delivers his "address to the nation" from the "Oval Office".  

There will doubtlessly be both legislative and court challenges to such an order.

Questions about injunctive efforts that immediately come to mind are: 
Under the National Emergencies Act 50 USC 1601, et seq. is whether there’s a statute that would allow him to reprogram funds for the wall if he declares an emergency. 

Second question is standing to challenge. Whose interests are affected sufficiently to constitute a "case or controversy" - the jurisdictional prerequisite of federal courts.

Third is "balance of equities" on a preliminary injunction, which is canonically described as "extraordinary" relief.

Fourth is what is the factual standard for existence of emergency. For that see this  article by Margaret Taylor in Lawfare (Brookings Institution) Declaring an Emergency to Build a Border Wall: The Statutory Arguments


Declaring an Emergency to Build a Border Wall: The Statutory Arguments - Lawfare

Declaring an Emergency to Build a Border Wall: The Statutory Arguments - Lawfare: The president’s statutory authorities regarding a proposed wall at the southern border are more generous than they might initially seem.

Monday, January 7, 2019

German cardinal calls for change in tradition ahead of celibacy discussion | America Magazine

German cardinal calls for change in tradition ahead of celibacy discussion | America Magazine: German Cardinal Reinhard Marx of Munich and Freising called for change in long-standing church tradition as the German bishops' conference prepares for a workshop debate to "review" the issue of celibacy for priests.

Wednesday, January 2, 2019

Injunction Granted In Virginia License Suspension Case | Legal Aid Justice Center

Injunction Granted In Virginia License Suspension Case | Legal Aid Justice Center 

Preliminary Injunction Granted in Driver’s License Case:Judge finds driver’s license suspension statute likely unconstitutional and orders DMV to reinstate Plaintiffs’ licenses while litigation proceeds.
Charlottesville, Virginia, (December 21, 2018) —This afternoon, the U.S. District Court for the Western District of Virginia issued a preliminary injunction against DMV Commissioner Richard D. Holcomb ordering him to reinstate the driver’s licenses of the three named plaintiffs in Stinnie v. Holcomb who lost their licenses automatically when they were unable to pay court costs and fines.
Judge Norman K. Moon found that the plaintiffs are likely to succeed in establishing that Virginia’s license suspension statute is unconstitutional, and that the plaintiffs have suffered irreparable harm as a result of its enforcement. The opinion states, “While the Court recognizes the Commonwealth’s interest in ensuring the collection of court fines and costs, these interests are not furthered by a license suspension scheme that neither considers an individual’s ability to pay nor provides him with an opportunity to be heard on the matter.”
“Today’s ruling is a victory for the Constitution and for common sense. The Court stated unequivocally that Virginia’s driver’s license suspension statute likely violates procedural due process rights,” said Angela Ciolfi, Executive Director of the Legal Aid Justice Center. “This week, two branches of state government have weighed in against continued enforcement of this counter-productive policy, and there is strong bipartisan support for repeal in the General Assembly. It is time to end the devastating cycle of debt, unemployment, and incarceration once and for all.”
Judge Moon’s ruling comes on the heels of Governor Ralph Northam’s announcement earlier this week of his support for ending license suspension in Virginia of people too poor to pay court debt, and rulings earlier this year by two federal courts in Tennessee and Michigan declaring similar statutes unconstitutional. The ruling currently affects only the five named Plaintiffs unless and until the Court rules on Plaintiffs’ pending motion for class certification. Repeal legislation sponsored by Senator Bill Stanley will be considered by the General Assembly during the upcoming 2019 session.
Overview:Stinnie v. Holcomb is a class action lawsuit, filed by Legal Aid Justice Center (LAJC) and McGuireWoods LLP, challenging the constitutionality of Virginia’s statute automatically suspending the driver’s licenses of nearly one million Virginia drivers who cannot afford to pay court costs and fines. The case was originally dismissed at the Circuit Court, but it was revived by the Fourth Circuit this summer when the appeals court allowed plaintiffs to amend their complaint. When LAJC filed the amended complaint, they also asked the court to issue a preliminary injunction, which would have the effect of ordering the DMV Commissioner to stop suspending driver’s licenses for non-payment of court debt while the lawsuit is pending.  On November 15th, Judge Moon took evidence and heard arguments for and against the preliminary injunction.  On December 21, Judge Moon granted the preliminary injunction finding the driver’s license suspension statute likely unconstitutional and ordering the DMV Commissioner to reinstate Plaintiffs’ licenses while litigation proceeds. The Court also rejected the Commissioner’s arguments that the federal court lacked jurisdiction.
National and Statewide Implications:
  • Virginia is one of 43 states that suspend driver’s licenses for non-payment of court costs and fines related to traffic and/or criminal offenses. Since Stinnie was originally filed in 2016, six more statewide lawsuits have been filed (or almost filed) in California, Tennessee, Michigan, Montana, Mississippi (settled pre-filing), and North Carolina, and advocates have won legislative reforms in many states, including California and, most recently, D.C.
  • A federal judge recently issued a statewide injunction against a similar enforcement scheme in Tennessee.
  • This ruling will not impact the nearly one million Virginia drivers who, as of December 2017, currently have at least one suspension on their license for failure to pay, including approximately 650,000 people whose licenses are suspended solely for not paying court costs and fines. 
  • For many drivers, a license suspension means giving up their only mode of transportation to work, forcing them to choose between losing their jobs and risking jail time for driving on a suspended license. These long-suffering Virginia drivers will continue to endure a never-ending cycle of debt and incarceration, so long as the law forces them to choose between driving illegally and forsaking the needs of their families. 
To read more about the lawsuit, or to download the briefs, go to
About the Legal Aid Justice CenterThe Legal Aid Justice Center (LAJC) fights injustice in the lives of individual Virginians while rooting out exploitative policies and practices that keep people in poverty. LAJC uses impact litigation, community organizing, and policy advocacy to solve urgent problems in areas such as housing, education, civil rights, immigration, workers’ rights, healthcare and consumer finance. LAJC’s primary service areas are Charlottesville, Northern Virginia, Richmond and Petersburg, but the effects of their work are felt statewide.

Automatic Driver's License Suspension for Unpaid Child Support is Unfair | New Jersey Law Journal

Automatic Driver's License Suspension for Unpaid Child Support is Unfair | New Jersey Law Journal
by the Editorial Board
Responding to Congressional pressure and the problem of substantial delinquencies in court-ordered child support payments—much of it owed to the state which sought to recover welfare payments—New Jersey in 1998 amended its child support act, providing in NJSA 2A:17-56.41 (a) for suspension of driving licenses “as a matter of law” if a child support arrearage equals or exceeds the amount of child support payable for six months or court-ordered health care coverage for the child is not provided for six months. Judges, on the recommendation of probation officers, issued failure to pay (FTP) warrants by virtue of which the statutes provides the “obligor’s driver’s license shall be suspended by operation of law.”
Superior Court Judge Mary Jacobson has ruled that this “automatic” suspension of driving privileges violates both “due process” and “fundamental fairness.” Relying on our state constitution in her 187-page opinion in Kavadas v. Martinez as chief administrator of the Motor Vehicle Division, the Mercer County assignment judge enjoined such automatic suspensions and gave the state 120 days to devise regulations to eliminate this practice by which some 20,000 people each year have lost their driving licenses without notice or an opportunity to be heard.
The obligation to pay child support depends on the ability to comply with court-ordered child support payments. Delinquency is concentrated among low income parents with support obligations. It is only willful failure to pay that is enforceable and sanctionable. Judge Jacobson therefore ordered the state to provide counsel to indigent obligors who seek to demonstrate their inability to pay, typically due to changed circumstances such as job loss, ill health, etc. Building on the landmark ruling in Pasqua v. Council (2006), in an opinion by Justice Barry Albin, our Supreme Court required that “attorneys be appointed to assist indigent non-custodial parents facing incarceration at child support enforcement hearings”.
Aside from the automatic license suspensions enjoined, in some circumstances a hearing officer may recommend, or a judge may order, suspension of a license as a punitive and coercive measure. Plaintiffs, represented by the lawyer who prevailed in Pasqua, sought to extend the right to appointed counsel to all indigent obligors who faced serious consequences for failure to pay child support. Judge Jacobson extended the Pasqua principle to some civil enforcement of litigants’ rights hearings. She explained that “both due process and fundamental fairness require courts to provide counsel to indigent obligors at any hearing at which a hearing officer may recommend a driver’s license suspension to a court, or at any hearing when the family court itself is considering a driver’s license suspension.”
In her comprehensive opinion, Judge Jacobson took note of a 2006 study by the Bloustein School of Planning and Public Policy with the New Jersey Motor Vehicle Commission—“Motor Vehicles Affordability and Fairness.” The report “found that 42 percent of individuals who had their licenses suspended lost jobs as a result of the suspension, 45 percent of those who lost jobs could not find another job, and 88% of those that were able to find another job reported a decrease in income.” Jacobson wrote that “[e]ven though most of the Report’s findings addressed license suspensions in general and did not focus on child support-related suspensions, it is reasonable to assume that the affected dependents likely included many children who are the subject of child support orders, and the very individuals that the automatic license suspensions were intended to benefit.” The Bloustein/MCV report also found that in low income areas “child support suspension rates for drivers…were ten times higher than the statewide average.”
We find that Judge Jacobson’s ruling addresses an important public problem. We hope that the governor, attorney general, and the Division of Family Development will work diligently and earnestly to produce the new regulations which the court has granted 120 days to formulate. Judge Jacobson declined to make her order retroactive. Thousands of parents—especially low income—doubtless remain stranded without driving privileges. Their status is something which the Legislature can and should address.
Finally, as the judge urged, the Legislature should “remove the provision directing automatic suspension of drivers licenses upon issuance of a support-related warrant.” We concur with Judge Jacobson that “[s]uch an amendment would also end New Jersey’s outlier status as the only state utilizing this linkage and would restore the procedural protections originally afforded to obligors facing driver’s license suspensions.”