Sunday, November 17, 2019

Eight months later, Elizabeth Warren FINALLY admits it'll take at least TWO bills to achieve M4All | ACA Signups

As Andrew Sprung (my other ACA guru) says...more like ten bills. 
Eight months later, Elizabeth Warren FINALLY admits it'll take at least TWO bills to achieve M4All | ACA Signups
by Charles Gaba


For several years now, I've been pleading with the powers that be in Congress to pass two major healthcare reform bills:
  • FIRST, a robust ACA 2.0 upgrade bill which would:
    • REPAIR the law from the Trump/GOP sabotage inflicted on it to date (weakening of 1332 guiderails, cut-off of CSR funding, slashing of the marketing/navigator budget, zeroing out of the mandate penalty; reinstatement of restrictions on short-term plans/etc.);
    • PROTECT it from any further damage (the Trump Administration's attempt to make the subsidy formula stingier; their attempts to require separate invoices for abortion; etc.);
    • FIX THE GLITCHES which were inherent in the bill as passed into law in 2010 (such as the Family Glitch, the Skinny Plan glitch, etc.); and
    • STRENGTHEN the law by expanding it (including removing the 400% FPL subsidy cliff; beefing up the subsidy formula; requiring wider network minimums; etc.)
This first bill would also hopefully include some sort of Public Option as well, although even without one the above improvements would still be a quantum leap ahead of the current istuation.
After these improvements were baked in, there'd then be followed by a SECOND BILL A FEW YEARS LATERwhich would be the next Big Thing. This, of course, is where the Democratic healthcare debate has gotten very ugly over the past year or so: Should we go with mandatory, "pure" Medicare for All or would a robust Public Option be the stopping point...with the assumption being that if the PO was good enough, everyone would eventually choose it over a private policy anyway, thus making it a moot point?
I feel so strongly about this "two stage rocket booster" approach that I even included it in my "Where the Democratic Candidates Stand" summary table from a few months back. As you can see at the bottom, while the candidates keep pushing for one particular bill/plan or another, I've been urging them to pass ACA 2.0 first and then worry about the next phase later on, whether it's "pure" M4All or my preferred long-term plan, Medicare for America (which amounts to "Medicare for All with a PRIVATE Option").
KEEP READING (it's long and wonky with graphs and charts)

Friday, November 15, 2019

Trump files "emergency" stay motion to keep tax returns from Congress - and prosecutors

On the day our former Ukraine Ambassador testified that the Department of State is being hollowed out Donald Trump has filed an "emergency motion for a stay" of the subpoena issued by the House Oversight Committee for his pre-presidential tax returns.  He follows recently appointed Circuit Judge Neomi Rao's road map. 
Trump files "emergency" stay motion to keep tax returns from Congress - and prosecutors

An Imposter: Pelosi on Trump's attack on Ambassador Yovanovitch

Sunday, November 10, 2019

Never forget! A mob lynching of 4 black sharecroppers in 1946 is focus of court battle over grand jury secrecy

A mob lynching of 4 black sharecroppers in 1946 is focus of court battle over grand jury secrecy
By The Associated Press
ATLANTA — A historian's quest for the truth about a gruesome mob lynching of two black couples is prompting a U.S. appeals court to consider whether federal judges can order grand jury records unsealed in decades-old cases with historical significance.
The young black sharecroppers were being driven along a rural road in the summer of 1946 when they were stopped by a white mob beside the Apalachee River, just over 50 miles east of Atlanta. The mob dragged them out, led them to the riverbank and shot them multiple times. For months the FBI investigated and more than 100 people reportedly testified before a grand jury, but no one was ever indicted in the deaths of Roger and Dorothy Malcom and George and Mae Murray Dorsey at Moore's Ford Bridge in Walton County.
Historian Anthony Pitch wrote a book about the killings — "The Last Lynching: How a Gruesome Mass Murder Rocked a Small Georgia Town" — and continued his research after its 2016 publication. He learned transcripts from the grand jury proceedings, thought to have been destroyed, were stored by the National Archives.
Heeding Pitch's request, a federal judge in 2017 ordered the records unsealed. But the U.S. Department of Justice appealed, arguing grand jury proceedings are secret and should remain sealed.
A three-judge panel of the 11th U.S. Circuit Court of Appeals in February ruled 2-1 to uphold the lower court's order. But the full court voted to rehear the case, and is set to hear oral arguments Tuesday.
Pitch, 80, died just two weeks after the announcement the case would be reheard. His wife, Marion Pitch, has taken her husband's place in the case. Pitch's family also approached Laura Wexler, who wrote another book about the lynching, for help completing his work, and she joined the case.
In 1946, Roger Malcom, 24, was jailed after stabbing and gravely injuring a white man during an argument. A white farmer, Loy Harrison, paid $600 to bail Malcom out on July 25 of that year. Harrison later said he was ambushed by a mob as he drove the four home. Harrison, who is identified in an FBI report as a former Ku Klux Klansman and well-known bootlegger, wasn't hurt. He told authorities he didn't recognize anyone in the mob.
The investigation has been reopened and closed several times since a grand jury failed to indict anyone in December 1946. Students, researchers and activists have all tried to crack the case.
Rules governing grand jury secrecy include exceptions when records may be released. A 1984 ruling in the 11th Circuit, which set binding precedent, says judges may order their disclosure in "exceptional circumstances." The historical significance in this case qualifies, Judge Charles Wilson wrote in the panel's majority opinion. He added that enough time has passed that witnesses, suspects or their immediate family members likely aren't alive to be intimidated, persecuted or arrested.
Concurring, Judge Adalberto Jordan agreed that lower court's ruling should be upheld because of the binding precedent. But Jordan said he would have decided the 1984 case differently. Allowing judges to use inherent authority to go beyond the defined exceptions to grand jury secrecy seems too open-ended, he wrote.

John J. Farley III - retired judge of the Court of Veterans Appeals

John J. Farley III - Wikipedia
Jack Farley was a neighbor in Massapequa, Long Island when I was in junior high and high school.  Three years older than me he was a local hero as captain of the lacrosse team - as he was in college.  I went to Holy Cross College because I admired him and two guys - stars on the track team at Brooklyn Prep. 
"John J. "Jack" Farley III is a retired judge of the United States Court of Appeals for Veterans Claims.
In September 1989 he was nominated and confirmed as a Judge of the United States Court of Veterans Appeals . He retired in 2012. 

Judge Farley received his A.B. degree in economics in 1964 from the College of the Holy Cross, where he was captain of the freshman and varsity lacrosse teams, his M.B.A. degree in 1966 from Columbia University,  graduated in 1973 from Hofstra University School of Law, first in his class and serving as the founding Editor-in-Chief of the Hofstra Law Review.

Judge Farley served in the U. S. Army from 1966 until his retirement as a captain in 1970 due to 100% disability from wounds received during combat in Vietnam. His decorations include four Bronze Star Awards, two Purple Hearts, and the Army Commendation Medal. From 1973 to 1978, he was a trial attorney in the U. S. Department of Justice.

Monday, November 4, 2019

60% chance Trump wins -David J.Rothkopf

Torts Today: Trial begins in challenge to Alabama congressional district map

Torts Today: Trial begins in challenge to Alabama congressional district map: Trial begins in challenge to Alabama  congressional district map

Trump taxes - NY subpoena upheld by Second Circuit Court of Appeals

Torts Today: Trump taxes - NY subpoena upheld by Second Circuit Court of Appeals

"The President has not persuasively explained why, if executive privilege did not preclude enforcement of the subpoena issued in Nixon, the Mazars subpoena must be enjoined despite seeking no privileged information and bearing no relation to the President’s performance of his official functions. The Nixon Court explained that even the President’s weighty interest in candid and confidential conversations with his advisers could not justify a blanket privilege that would “cut deeply into the guarantee of due process of law and gravely impair the basic function of the courts.”"

Sunday, November 3, 2019

Elizabeth Warren’s plan to pay for Medicare-for-all - Vox

Elizabeth Warren’s plan to pay for Medicare-for-all - Vox
by Ezra Klein
On Friday, Sen. Elizabeth Warren released her Medicare-for-all financing plan. After being attacked at the last Democratic debate for refusing to admit Medicare-for-all would require middle-class tax hikes, Warren wants to show that you can pay for the plan without them.
And you can. Maybe.
Warren’s financing plan has two parts. The first describes her approach to estimating the costs of Medicare-for-all. The second lays out the way she pays for the plan without, in her words, “one penny” of middle-class tax increases.
As befits Warren’s wonkish, master-of-plans persona, she’s relied in both cases on top experts. Her cost estimate was conducted by Don Berwick, the former director of the Centers for Medicare and Medicaid Services; and Simon Johnson, the former chief economist at the World Bank. Her tax plan was developed by Betsey Stevenson, who served as chief economist at the Labor Department; Mark Zandi, the head economist at Moody’s Analytics; and Johnson. Helpfully, her plan is backed up by two detailed appendices laying bare, and arguing for, the assumptions Warren makes.
So let’s take them in turn.

Saturday, November 2, 2019

The FBI to Buzzfeed Mueller docs

Jason Leopold at Buzzfeed gets more info via FOIA than the Democratic majority in the House with subpoena power  Follow @emptywheel

Thursday, October 31, 2019

Ian Millhiser discusses the new impeachment rules

Ian Millhiser discusses the new impeachment rules

The House of Representatives voted 232-196 Thursday morning to approve a resolution laying out how public impeachment hearings will be conducted on “whether sufficient grounds exist for the House of Representatives to exercise its Constitutional power to impeach Donald John Trump, President of the United States of America.”
Much of the resolution is symbolic. Neither the Constitution nor any House rule requires the full House to hold a vote on impeachment before the final vote on whether to impeach Trump. Other parts of the resolution resolve questions about who has the power to do what during the public phase of the inquiry. The House Intelligence Committee will hold public hearings, and Republicans will need approval from at least some Democrats to call witnesses or to otherwise issue subpoenas.
The most significant provision in the resolution exempts the Intelligence Committee’s impeachment hearings from a rule that ordinarily limits questioning of witnesses to five minutes per committee member. Though the resolution leaves the five-minute rule in place for most members, it allows Intelligence Chair Adam Schiff to extend his own question time to as much as 45 minutes, so long as he gives equal time to Republican ranking committee member Devin Nunes.
These are important changes because they will allow Schiff and the team of lawyers working for him to focus their time on the impeachment hearings and to spend significant amounts of time asking probing questions during those hearings. The new rules help ensure that the hearing will not be a disjointed process, constantly jumping from one questioner to the next, without giving anyone time to build a coherent narrative.

House Intelligence Committee Chair Adam Schiff (D-CA) arrives for a deposition from acting US Ambassador to Ukraine Bill Taylor on October 22, 2019.

Saul Loeb/AFP via Getty Images
The resolution provides that “the chair may confer recognition for multiple periods of such questioning,” so Schiff could potentially spend an indefinite amount of time questioning witnesses if circumstances warrant such an extension.

Tomgram: Andrew Bacevich, Why Those "Endless Wars" Must Never End | TomDispatch

Tomgram: Andrew Bacevich, Why Those "Endless Wars" Must Never End | TomDispatch:

Here’s the strange thing for the self-proclaimed greatest power in history, the very one that, in this century, has been fighting a series of unending wars across significant parts of the planet: if you exclude Operation Urgent Fury, the triumphant invasion of the island Grenada in 1983, and Operation Just Cause, the largely unopposed invasion of Panama in 1989, Washington’s last truly successful war ended 74 years ago in August 1945 with the dropping of two atomic bombs on Japanese cities. Every war of even modest significance since -- and they’ve been piling up -- from the Korean and Vietnam wars to the ones in Afghanistan, Iraq, Libya, Somalia, Libya, and elsewhere in this century (and the last as well, in the cases of Afghanistan and Iraq) has either ended badly (Vietnam) or not at all (see above).
And if that seems a little strange for the greatest power in history, here’s something hardly less so: the reputations of so many of the men and women who promoted or directed those failing wars and the generals who commanded them remain remarkably intact. And that's in a Washington that still promotes more of the same -- with the exception of our bizarre president, notes TomDispatch regular Andrew Bacevich, author of the soon-to-be-published, aptly titled book, The Age of Illusions: How America Squandered Its Cold War Victory. These days, it seems, you can’t lose a reputation fighting a losing war for the United States.  If you want proof of that, just check out the photo that Guardian columnist Julian Borger recently highlighted. It’s a smile-a-thon of self-satisfaction that happens to include former National Security Advisor and Secretary of State Henry Kissinger (think: Vietnam, Cambodia), former National Security Advisor and Secretary of State Condoleeza Rice (think: the invasions of Afghanistan and Iraq), and former CIA director and Secretary of Defense Robert Gates (think: America’s twenty-first-century forever wars), among others. All three are still admired and have kept their reps in Washington, which should tell you what you need to know about what passes for American foreign policy and the top officials of the national security state in 2019.
While Donald Trump tends to refer pejoratively to that state within a state as “the deep state,” I prefer to think of it as the shallow state, not just because in these years so much of it is in plain sight, but because its thinking is anything but deep, as Bacevich suggests today. Tom
False Security
Donald Trump and the Ten Commandments (Plus One) of the National Security State
By Andrew Bacevich
Let us stipulate at the outset that Donald Trump is a vulgar and dishonest fraud without a principled bone in his corpulent frame. Yet history is nothing if not a tale overflowing with irony. Despite his massive shortcomings, President Trump appears intent on recalibrating America’s role in the world. Initiating a long-overdue process of aligning U.S. policy with actually existing global conditions just may prove to be his providentially anointed function. Go figure.
The Valhalla of the Indispensable Nation is a capacious place, even if it celebrates mostly white and mostly male diversity. Recall that in the eighteenth century, it was a slaveholding planter from Virginia who secured American independence. In the nineteenth, an ambitious homespun lawyer from Illinois destroyed slavery, thereby clearing the way for his country to become a capitalist behemoth. In the middle third of the twentieth century, a crippled Hudson River grandee delivered the United States to the summit of global power. In that century’s difficult later decades, a washed-up movie actor declared that it was “morning in America” and so, however briefly, it seemed to be. Now, in the twenty-first century, to inaugurate the next phase of the American story, history has seemingly designated as its agent a New York real estate developer, casino bankruptee, and reality TV star.

Wednesday, October 30, 2019

I've not gotten over Brett Kavanaugh ~ Dahlia Lithwick ~ Slate
By Dahlia Lithwick
"It is not my job to decide if Brett Kavanaugh is guilty. It’s impossible for me to do so with incomplete information, and with no process for testing competing facts. But it’s certainly not my job to exonerate him because it’s good for his career, or for mine, or for the future of an independent judiciary. Picking up an oar to help America get over its sins without allowing for truth, apology, or reconciliation has not generally been good for the pursuit of justice. Our attempts to get over CIA torture policies or the Iraq war or anything else don’t bring us closer to truth and reconciliation. They just make it feel better—until they do not. And we have all spent far too much of the past three years trying to tell ourselves that everything is OK when it most certainly is not normalnot OK, and not worth getting over."

Sunday, October 27, 2019

Saturday, October 26, 2019

Arbitration clause in legal malpractice claim barred by New Jersey appellate court

Image result for arbitration

The New Jersey legal community has been roiled by an unpublished – but binding – Appellate Division decision that barred enforcement of the mandatory arbitration provision of a prominent firm’s standard retainer agreement. 

In Delaney v. Dickey and Sills Cummis & Gross, P.C., 2019 WL 3982756, a legal malpractice action, plaintiff Brian Delaney claims the retainer agreement used by defendants   violated several RPCs and therefore its provision to arbitrate all disputes arising from the representation should not be enforced. The Chancery Division judge rejected the argument but a three judge panel reversed. Sills has now appealed to the state’s Supreme Court, and Delaney’s lawyer agrees the Court should grant certification.

A Sills partner handed a complex engagement agreement to Delaney a prospective client – who they describe as a sophisticated businessman.. The partner offered to answer questions, but gave no advice, while waiting for the client to sign it.  In the circumstance, the appellate court concluded this did not satisfy the duty to “reasonably consult” with the client.  RPC 1.4 (c).

The retainer informs prospective clients of the rights they are giving up but does not inform them of the costs and charges they could incur by waiving their right to access to the courts and agreeing to arbitration of all disputes with the firm.  That includes in the drafters contemplation – any malpractice claim by the client, a possibility not discussed or described beyond the language of the attachment to the engagement letter.

The rub arose from the retainer agreement’s incorporation by reference of the JAMS arbitration rules – a long and complex document.  The Sills retainer was faulted because as the same court had held in Alpert v. Quinn, 410, NJ Super 510, 531 (App. Div. 2009) “Merely directing the client to ask for another document that is not directly presented and explained to the client but will bind him or her does not fulfill the lawyer’s obligation pursuant to R.P.C. 1.4(c).”

The engagement letter’s appendix said that “any dispute arising out of the engagement” would be arbitrated.  But it did not state expressly that even a malpractice lawsuit would be barred.  The arbitration clause was found unenforceable because the JAMS rules were neither explained nor attached, merely referenced with a hypertext link.  Review of the JAMS rules would have shown the prospect of the client being compelled to pay substantial undeterminable costs for arbitration, the counsel fees of the law firm in a malpractice action, and the severe limitations on discovery in an arbitration under JAMS rules.  

To the common distress of the Bar the New Jersey Supreme Court has long provided that a successful legal malpractice plaintiff is entitled to counsel fees.   Of special concern to the court here was this somewhat ambiguous clause:
The firm and you will pay an equal share of all costs and expenses related to compensation of the arbitrator and any administrative fees except that the award rendered by the arbitrator may include the costs and expenses of arbitration reasonable attorneys' fees and reasonable costs for expert and other witnesses..

As the panel notes  the JAMS rules referenced but not explained   required the parties not only to share the arbitrator's fees and expenses, but also "that the award rendered by the arbitrator may include the costs and expenses of arbitration, reasonable attorneys' fees and reasonable costs for expert and other witnesses."

These provisions plainly benefit the drafter and burden prospective clients who, contrary to New Jersey’s established case law in Saffer v. Willoughby, 143 N.J. 256 (1996), may find themselves indebted to their former lawyers (and insurers) for the costs of a successful defense even of a non-frivolous malpractice claim.  The panel cited RPC 1.8(h)(1) for its proscription of “an agreement prospectively limiting the lawyer’s liability for malpractice unless the client is independently represented in making the agreement…”

The Appellate Division alarmed lawyers whose retainer agreements provide for arbitration.  They face the prospect of explaining such pros and cons at the point of sale.

In my opinion the Appellate Division correctly held that the retainer agreement’s arbitration clause was not enforceable because it did not assure informed consent to provisions which substantially limited the client’s rights vis a vis the law firm.  There was no explanation of the “the material risks of and reasonably available alternatives to the proposed course of conduct” embodied in the retainer agreement as called for by RPC 1.0 [e] Informed consent.

-         George Conk