Saturday, August 31, 2019

The Federalist Society Says It’s Not an Advocacy Organization. We Found Documents Showing Otherwise. - POLITICO Magazine

The Federalist Society Says It’s Not an Advocacy Organization. We Found Documents Showing Otherwise. - POLITICO Magazine

This past March, when the Federalist Society for Law and Public Policy Studies held its 37th annual national gathering for conservative law students, the lineup of speakers and panelists included an impressive number of Republican Party and conservative movement stars.

All four of the conference’s main panels were chaired by active Republican-appointed federal appeals court judges. Amul Thapar—a protégé of Senator Mitch McConnell who “nearly wouldn’t speak” to his own father upon finding out he had voted for Barack Obama, his father said—directed one panel. Edith Jones, a long-time 5th Circuit judge considered too conservative for the Supreme Court by the George H.W. Bush administration, moderated another. Elizabeth Branch, a recent appointee of President Donald Trump to the 11th Circuit and former senior official in the George W. Bush administration, moderated the third panel, while fellow Trump appointee to the 6th Circuit John B. Nalbandian moderated the fourth. And the “keynote” was a “fireside chat” between former GOP Senator Jon Kyl and Arizona Governor Doug Ducey, a fellow Republican. Despite what appears to be an obvious political valence, the Federalist Society and its high-profile members have long insisted the nonprofit organization does not endorse any political party “or engage in other forms of politicaladvocacy,” as its website says. The society does not deny an ideology—it calls itself a “group of conservatives and libertarians”—but it maintains that it is simply “about ideas,” not legislation, politicians or policy positions.

Federalist Society documents that one of us recently unearthed, however, make this position untenable going forward. The documents, made public here for the first time, show that the society not only has held explicit ideological goals since its infancy in the early 1980s, but sought to apply those ideological goals to legal policy and political issues through the group’s roundtables, symposia and conferences.

The question of whether the Federalist Society is properly characterized as a “society of ideas” or a political organization has significant ramifications. The Code of Conduct for United States Judges, a set of guidelines administered by the federal judiciary’s Judicial Conference, was revised earlier this year to bar sitting federal judges from participating in conferences and seminars sponsored by groups “generally viewed by the public as having adopted a consistent political or ideological point of view equivalent to the type of partisanship often found in political organizations.” (The Code does not “explicitly” apply to Supreme Court justices, though they have looked to it in the past.) One former federal judge argued that under the new ethics opinion, the Federalist Society is now a “no-go zone for federal judges.” The Society’s president, Eugene Meyer, responded, calling the former jurist’s argument an “absurd and ludicrous” interpretation of the rule, adding that the Federalist Society has said “time and again” that it is nonpartisan and does not take official policy positions.

But the newly unearthed documents—a 1984 grant proposal and cover letter, written by Meyer on the Federalist Society’s behalf and now housed in the late Judge Robert Bork’s papers at the Library of Congress—provide evidence that the Federalist Society, in contravention of what the new Codestates, in fact “advocates for specific outcomes on legal or political issues.” This suggests that federal judges, by attending Federalist Society events, are transgressing the Code’s new guidelines. Given the importance of active federal judges to the Federalist Society’s long-term goal of reshaping the law, barring them from the society’s events could hamper its continued ability to exert the political influence it has impressively built over decades.

The Federalist Society was founded in 1982 as a small law student group with the goal of bringing conservative and libertarian speakers, and their ideas, to law school campuses perceived to be dismissive of these intellectual traditions. After the Federalist Society held its first national symposium at Yale Law School that year—featuring recent Reagan-appointed federal appeals court judges Bork and Antonin Scalia—Federalist Society student groups started popping up on law school campuses around the country. The organization now boasts more than 65,000 members, and most federal judgeships, clerkships and executive branch legal jobs in Republican administrations are effectively off-limits to nonmembers.
Amanda Hollis-Brusky is an associate professor of politics at Pomona College and author of Ideas With Consequences: The Federalist Society and the Conservative Counterrevolution.
Calvin TerBeek is a Ph.D. candidate in political science at the University of Chicago.

Thursday, August 29, 2019

What that Comey Email Report Really Says - Lawfare

What that Comey Email Report Really Says - Lawfare:
by Benjamin Wittes
The inspector general of the United States Department of Justice says that a witness to gross misconduct by the president of the United States has a duty to keep his mouth shut.

Wednesday, August 28, 2019

Editorial: 'The 1619 Project' is landmark truth telling | National Catholic Reporter

Editorial: 'The 1619 Project' is landmark truth telling | National Catholic Reporter: "Ultimately, my goal is to subvert the common perception of 'black history' as somehow separate from American history and to reinstate it as indivisible from the totality of past social, political and...

Deconstructing 'Sanctuary Cities': The Legality of Federal Grant Conditions That Require State and Local Cooperation on Immigration Enforcement by Peter Margulies :: SSRN

Deconstructing 'Sanctuary Cities': The Legality of Federal Grant Conditions That Require State and Local Cooperation on Immigration Enforcement by Peter Margulies :: SSRN: The term “sanctuary city” has generated more heat than light. The Trump administration has branded certain cities as citadels of lawlessness because those cities have resisted federal attempts to condition receipt of law enforcement funds on cooperation with the full range of immigration enforcement efforts. Pushing back against these federal conditions, cities and other subfederal entities have argued that the untrammeled cooperation that the Trump administration seeks would hinder local law enforcement and promote racial profiling. Neither side acknowledges that the dispute is relatively narrow in scope, since federal and subfederal entities cooperate both tacitly and actively on many immigration-related fronts, from the data entered during routine local police stops to transfers of custody for persons convicted of serious crimes. That reality does not fit the straw figures that dominate the sanctuary city landscape in political debates. However, it informs attempts to resolve the underlying legal issues. This Article assesses the legality of Trump administration conditions on both constitutional and statutory grounds. The Article argues for the constitutionality of 8 U.S.C. §

Tuesday, August 27, 2019

Sidney Rittenberg — Jerome A. Cohen | 孔傑榮(柯恩)

Sidney Rittenberg — Jerome A. Cohen | 孔傑榮(柯恩): By Jerome A. Cohen Yesterday’s wonderful obit in the New York Times was a balanced presentation of Sid’s long and complex life. I especially liked its references to his experiences on both sides of the scourge of mankind — arbitrary detention. Although, soon after his final release from prison,

Monday, August 26, 2019

NJ Appeals Court refuses to enforce law firm's arbitration provision


The Appellate Division of the Superior Court of New Jersey has reinstated a  malpractice claim and fee dispute against a leading firm.  The firm's retainer agreement adopted the rules of the private mediation service JAMS and provided for private arbitration of both fee disputes and malpractice claims against the firm.

A couple of excerpts from the unpublished decision by the three judge panel will capture the heart of the case:

For his part, plaintiff averred in a verified complaint that no one from Sills [Cummis, et al.] "went over the arbitration provision with [him]." He also averred that no one from Sills explained the nature of the costs associated with the arbitration, including that they could "easily exceed $20,000" and could be awarded against him. Nor did anyone from Sills point out that the arbitration fees and costs "greatly exceeded" filing fees for a Superior Court action, or that under the retainer agreement plaintiff could be held liable for Sills' costs and attorneys' fees, depending on how the arbitrator ruled. Plaintiff asserted that had he been "made aware of the inequities and costs associated with proceeding with arbitration, as well as the fact that he was constitutionally entitled to have a jury decide issues related to malpractice, he would have never signed the initial retainer agreement in the form presented by [Sills]," if he signed it at all.

Our holding is narrow. We do not hold that all retainer agreement clauses that mandate  arbitration of legal malpractice claims are per se invalid. Nor do we hold that the "reasonable explanation" required of an attorney by RPC 1.4(c) cannot be contained in the written retainer agreement. Rather, we hold that when an attorney incorporates by reference in a retainer agreement a document that contains material terms concerning mandatory arbitration of legal malpractice claims, does not provide the incorporated document to the client, gives the client no explanation about material terms contained in the document, and asks the client to sign the retainer agreement without reading the incorporated documents, the agreement runs afoul of the RPCs and is invalid. 

Thursday, August 22, 2019

No vicarious liability for husband ~ wife lawyers

New DHS rule defies Flores settlement principles

Rule issued August 22 and titled Apprehension, Processing, Care, and Custody of Alien Minors and Unaccompanied Alien Children

Sunday, August 18, 2019

The 1619 Project - The New York Times

The 1619 Project - The New York Times: American slavery began 400 years ago this month. This is referred to as the country’s original sin, but it is more than that: It is the country’s true origin.

The struggle against slavery and Jim Crow, by Black people for equality has done more to make American as democratic as it is than any other force - including the War of Independence.  And the contribution to our culture of Black people via music, and blood shed - similarly surpasses any other single force,  There is no America without African Americans.

Appallingly Donald Trump began his day by denouncing this important project of the New York Times as "fake news".  Quite the reverse - it is of great importance. - gwc

Saturday, August 17, 2019

Ninth Circuit fractures over national injunction on asylum rule

Image result for map united states circuit courts of appeal
The Trump administration in July issued a new "interim final rule" blocking asylum applications by alien refugees who passed through a "third country" but did not apply for asylum there.  The U.S. District Court in San Francisco enjoined the enforcement of the rule nationally, citing violations of the Administrative Procedure Act.  A panel of the 9th Circuit held the U.S.had not shown it was likely to succeed on the merits but on August 16, 2019 partially granted the U.S. motion for a stay - limiting the scope to the territory of the Circuit, and remanding to the District Court for factual development on the need for a national scope to the injunction.

Friday, August 16, 2019

East Bay Sanctuary: 9th Circuit Panel Narrows Injunction Against Trump Asylum Order

East Bay Sanctuary v. Barr - August 16, 2019 (geographically limiting preliminary injunction)
9th Circuit federal appeals court panel (2-1) denies stay sought by government but rejects nationwide injunction blocking Trump refusal to consider asylum applications by those who do passed through a third country, such as Mexico bit did not seek asylum there.  Dissenter would grant nationwide injunction.

William Barr is wrong about reform prosecutors. Here is what we stand for. - The Washington Post

William Barr is wrong about reform prosecutors. Here is what we stand for. - The Washington Post: It’s wrong to paint social-justice efforts as invitations to criminals.
In a speech this week to the Fraternal Order of Police, Attorney General William P. Barr lamented “the emergence in some of our large cities of district attorneys who style themselves as ‘social justice’ reformers, who spend their time undercutting the police, letting criminals off the hook and refusing to enforce the law.”
On the evening that one of us (Parisa Dehghani-Tafti) won the Democratic nomination for commonwealth’s attorney in Arlington, Del. Todd Gilbert, the Virginia House GOP leader, similarly tweeted: “These social justice prosecutors will inevitably get their citizens hurt, robbed, burglarized or much worse because of their approach to crime.”
Sounds awful, but don’t worry: There is a vast distance between what Barr and other opponents of progress in criminal justice say reform prosecutors believe and what we actually believe. Allow us to summarize.

Thursday, August 15, 2019

FDA Unveils New Graphic Warnings For Cigarette Packs - Law360

FDA Unveils New Graphic Warnings For Cigarette Packs - Law360: The U.S. Food and Drug Administration on Thursday released a notice of proposed rule requiring graphic, full-color warning images on cigarette packs and tobacco advertisements.  Such  measures are mandated by the 2009 Family Smoking Prevention and Tobacco Control Act.

The D.C. Circuit in 2012 blocked graphic FDA warnings saying the FDA had no evidence that such advertising would reduce risks.  The tobacco companies' First Amendment claims were thus sustained.  A good (bad) example of the impact of Federalist Society vetted conservative judges.  As the scientific capacities of regulatory agencies are weakened such judges will find it easier to strike down health and safety regulations.

Hong Kong lawyer calls for lawyers to monitor abuses

Friday, August 9, 2019

Lawyer’s Use of Internet Search Engine Keyword Advertising OK'd by New Jersey Supreme Court’s Advisory Committee on Professional Ethics

The New Jersey Supreme Court’s Advisory Committee on Professional Ethics (ACPE) has issued a binding Opinion 735 Lawyer’s Use of Internet Search Engine Keyword Advertising
The Committee- whose published opinions bind the bar – subject to discretionary appeal -  responded to an inquiry: “asking whether a lawyer may, consistent with the rules governing attorney ethics, purchase a Google Adword℠ or keyword that is a competitor lawyer’s name, in order to display the lawyer’s own law firm website in the search results when a person searches for the competitor lawyer by name. Internet search engine advertising programs permit businesses to purchase certain keywords or phrases; when a person searching on the internet uses those words in the search, the websites of purchasers of the keywords will appear in the search results, ordinarily presented as paid or “sponsored” ads.”  The ACPE found that acceptable but abjured any method that would surreptitiously direct an inquirer from the competitor’s website to the lawyer’s own site.

The issue has been addressed by Texas, Wisconsin, and North Carolina.  Like the first two the Court Committee explained that so long as the result of a network search yields a “sponsored” result The purchase of “keywords” is permissible:
The Committee concurs with the approach of Texas and Wisconsin and finds that purchasing keywords of a competitor lawyer’s name is not conduct that involves dishonesty, fraud, deceit, or misrepresentation. The websites of the keyword purchaser’s law firm and the competitor’s law firm will, presumably, both appear in the resulting search. The keyword purchaser’s website ordinarily will appear as a paid or “sponsored” website, while the competitor lawyer’s website will appear in the organic results (unless the competitor has purchased the same keyword, in which case it will also appear as a paid or “sponsored” website). The user can choose which website to select and the search engine ordinarily will mark the keywordpurchased website as paid or “sponsored.” This is not deceptive, fraudulent, or dishonest conduct within the meaning of Rule of Professional Conduct 8.4(c).
The Committee further finds that purchasing keywords of a competitor lawyer’s name is not conduct prejudicial to the administration of justice. The standard for conduct prejudicial to 1 In 2013, the Florida Bar’s Standing Committee on Advertising proposed an opinion that would have found it to be a deceptive and misleading advertising technique for a lawyer to purchase the name of another lawyer or law firm as a keyword in search engines so that the lawyer’s advertisement or sponsored website link appears when a person uses the other lawyer or law firm’s name as a search term. This proposed opinion, however, was rejected by the Board Review Committee on Professional Ethics and withdrawn by the Florida Bar Board of Governors.  
The ACPE  held "this Rule applies to “particularly egregious conduct,” or conduct that “flagrantly violat[es] . . . accepted professional norms.” In re Helmer, 237 N.J. 70, 83 (2019) (quoting In re Hinds, 90 N.J. 604, 632 (1982)). Purchasing keywords that are the name of a competitor lawyer is not egregious or flagrant conduct. Inquirer also asked whether a lawyer may pay Google to insert a hyperlink on a competitor lawyer’s name that diverts the user to the first lawyer’s website. The Committee finds that surreptitiously redirecting a user from the competitor’s website to the lawyer’s own website is purposeful conduct intended to deceive the searcher for the other lawyer’s website.

Wednesday, August 7, 2019

Former Vice President Joe Biden Remarks on Mass Shootings |

Former Vice President Joe Biden Remarks on Mass Shootings | In the wake of the mass shootings in El Paso, Texas, and Dayton, Ohio, former Vice President Biden delivers a speech in Burlington, Iowa, in which he decries the damage being done by Donald Trump.

Elizabeth Warren: school teacher

Tuesday, August 6, 2019

Adam Serwer The most dangerous idea
Adam Serwer    An excellent historical survey of how white bias has harmed us and blinds us.

Saturday, August 3, 2019

Does Church Teaching Change? | Commonweal Magazine

Does Church Teaching Change? | Commonweal Magazine: Vatican II marked a turning point, showing that appropriate change did not mean losing one’s identity but, rather, enhancing it or salvaging it from ossification.

his article is an excerpt from When Bishops Meet: An Essay Comparing Trent, Vatican I, and Vatican II, published this month by Harvard University Press. Copyright © 2019 by the president and fellows of Harvard College. Used by permission. All rights reserved.

Although the documents of the early councils of the church recognized that bad customs and bad teaching had to be uprooted, which is a form of change, they most characteristically betray a sense of continuity with previous Christian teaching and practice. They called for continuation and implementation of ancient customs and ancient traditions—antiqua lex, antiqua traditio.
The documents of the medieval councils very much follow the same pattern. Although they in fact deal with the twists and turns in culture and institutional structures of their day, they lack a keen sense of discrepancy between past and present, and thus the councils never felt the necessity to address the discrepancy directly. Only with the Italian Renaissance of the fifteenth century and then the Reformation early in the next century did this ahistorical mindset receive its first serious challenges. The Council of Trent was, therefore, the first council that had to take those challenges into account.