Monday, July 22, 2019


Tuesday, July 16, 2019

Geort Cobway in go back where you came from

Monday, July 15, 2019

Saturday, July 13, 2019

Thursday, July 11, 2019

The Douglass Plan | Pete For America

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The Douglass Plan | Pete For America: A Comprehensive Investment in the Empowerment of Black America
"After the accumulated weight of slavery and Jim Crow, America cannot simply replace centuries of racism with non-racist policy; it must intentionally mitigate the gaps that those centuries of policy created."  Pete Buttigieg

It's not just slavery. In 1949 our parents signed lease-purchase agreements in Levittown, NY that contained a promise to sell only to Caucasians.  Levittown is 98% white today.  Black and Latin people were denied the home equity that fueled our prosperity.  - gwc

p.s. - want to know more?  See Richard Rothstein's The Color of Law for the story of the white suburbs

His Kampf

 hours ago
His Kampf.

Donald J. Trump
July 11, 2019
The White House will be hosting a very big and very important Social Media Summit today. Would I have become President without Social Media? Yes (probably)! At its conclusion, we will all go to the beautiful Rose Garden for a News Conference on the Census and Citizenship.
A big subject today at the White House Social Media Summit will be the tremendous dishonesty, bias, discrimination and suppression practiced by certain companies. We will not let them get away with it much longer. The Fake News Media will also be there, but for a limited period..

....years, or maybe 10 or 14 (just kidding), they will quickly go out of business for lack of credibility, or approval, from the public. That’s why they will all be Endorsing me at some point, one way or the other. Could you imagine having Sleepy Joe Biden, or ,..
...or a very nervous and skinny version of Pocahontas (1000/24th), as your President, rather than what you have now, so great looking and smart, a true Stable Genius! Sorry to say that even Social Media would be driven out of business along with, and finally, the Fake News Media!

Robert Mueller Missed the Crime: Trump’s Campaign Coordinated With Russia - Jed Shugerman

Robert Mueller Missed the Crime: Trump’s Campaign Coordinated With Russia: The special counsel will testify before Congress next week. He needs to answer for historic legal and factual errors.
by Jed Shugerman (Fordham Law)

Wednesday, July 10, 2019

Saturday, July 6, 2019

The busing myth. Sherilyn Ifill ~ LDF Slate

Thursday, July 4, 2019

Sunday, June 30, 2019

Monday, June 24, 2019

Court overrules takings precedent, allowing more suits in federal court - SCOTUSblog

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A local ordinance in Town of Scott, Pennsylvania declared all burial grounds to be open to the public.  An owner of a family burial plot challenged the ordinance as a taking.  The core language of Chief Justice John Roberts for the five member Supreme Court majority in this regulatory taking action is:
  We conclude that a government violates the Takings Clause when it takes property without compensation, and   that a property owner may bring a Fifth Amendment claim under §1983 at that time. That does not as a practical matter mean that government action or regulation may not proceed in the absence of contemporaneous compensation.

Given the availability of post-taking compensation, barring the government from acting will ordinarily not be appropriate. But because the violation is complete at the time of the taking, pursuit of a remedy in federal court need not await any subsequent state action. Takings claims against local governments should be handled the same as other claims under the Bill of Rights. Williamson County erred in holding otherwise.   

Basically the majority overturned a case which held that a cause of action against a state entity does not accrue until after the state has failed to pay just compensation after a condemnation action has been concluded.  The precedent is 34 years young and because it interprets the Constitution is entitled to little deference, according to Chief  Justice Roberts.  The practical effect is to open federal courts to 1983 actions as an alternative to inverse condemnation actions in state courts.  I suppose from a plaintiff's point of view it is attractive because attorneys fees can be recovered under 42 USC 1988.

It is a remarkably nationalist ruling by a conservative majority which has generally inclined toward deference to state sovereignty.  Doesn't bother me because I think federalism is a myth (the sovereign peoples of the Dakotas, etc.) that would be best replaced by the principle of subsidiarity - favoring local decision making subject to  conformity to basic principles.

Opinion analysis: Court overrules takings precedent, allowing more suits in federal court - SCOTUSblog
In its long-awaited opinion in Knick v. Township of Scott, the Supreme Court ruled on Friday that plaintiffs alleging that local governments have violated the takings clause may proceed directly in federal court, rather than first litigating in state court. The opinion overrules a 34-year-old precedent.
by Miriam Seifter

In its long-awaited opinion in Knick v. Township of Scott, the Supreme Court ruled on Friday that plaintiffs alleging that local governments have violated the takings clause may proceed directly in federal court, rather than first litigating in state court. The opinion overrules a 34-year-old precedent, Williamson County Regional Planning Commission v. Hamilton Bank, triggering a sharp dissent and another debate among the justices about the meaning of stare decisis. The majority opinion also rests on a reading of the takings clause—that a constitutional violation occurs at the moment property is “taken,” even if compensation is paid later—that may have consequences beyond this case.
The takings clause of the federal Constitution provides: “nor shall private property be taken for public use, without just compensation.” This takings case arose from a dispute between petitioner Rose Mary Knick and the township of Scott, Pennsylvania. Knick has a small graveyard on her property, and the township attempted to enforce against her an ordinance requiring such properties to be open to the public during daytime hours. Knick alleged an unconstitutional taking, but a federal court dismissed her suit because she had not first sought compensation in state court.
That brings us to Williamson County. The court held there that the plaintiff could not bring a takings claim in federal court until the plaintiff had pursued an inverse-condemnation action—that is, a lawsuit seeking compensation for the alleged taking—in state court. The Williamson County court drew upon two principles from prior case law: first, that “because the Fifth Amendment proscribes takings without just compensation, no constitutional violation occurs until just compensation has been denied.” Second, the court invoked a line of cases, starting with Cherokee Nation v. Southern Kansas Railway Co. in 1890, for the proposition that governments need not pay compensation at the time of the property deprivation as long as, at that time, they make available a “reasonable, certain, and adequate” mechanism for recovering such compensation after the fact.
The Williamson County decision has generated substantial criticism, due primarily to its effects on local takings plaintiffs. For one, Williamson County’s acceptance of inverse-condemnation suits in state courts as a “reasonable, certain, and adequate” recovery mechanism, and the consequence that local takings plaintiffs must proceed first in state court, means that takings plaintiffs are differently situated from other constitutional plaintiffs, who can go straight to federal court. (Defenders of Williamson County argue this is because the takings clause is different from other constitutional rights—more on that shortly.) Perhaps more strikingly, application of the full faith and credit statute, as the court explained in San Remo Hotel v. City and County of San Francisco,  often means that local takings plaintiffs are barred from federal court altogether, a consequence that Williamson County did not foreshadow or perhaps even foresee.
The majority opinion in Knick, written by Chief Justice John Roberts on behalf of himself and Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh, overrules Williamson County. The majority concludes that Williamson County’s “state-litigation requirement imposes an unjustifiable burden on takings plaintiffs” and “conflicts with the rest of our takings jurisprudence.” In reaching this conclusion, the Supreme Court does not rely on any of the narrow rationales described in my earlier posts about the case—including the U.S. solicitor general’s proposed interpretations of Sections 1983 and 1331, and Knick’s supplemental theory based on whether and when the government admits a taking has occurred. Rather, the majority rejects the proposition that the solicitor general (echoed now by the dissent) described as uncontested and over a century-old: that a taking does not occur at the time of the property deprivation so long as an adequate mechanism for compensation is available. Instead, the rule the court announces is that  “a government violates the Takings Clause when it takes property without compensation, and … a property owner may bring a Fifth Amendment claim under § 1983 at that time.”

Sunday, June 23, 2019

Joe Biden And The Disappearing America - Katherine Miller

Joe Biden And The Disappearing America: Joe Biden’s presidential campaign sometimes seems like a promise to restore us to the Obama years. But what’s been lost? And when did we have it?

Saturday, June 22, 2019

Rules and Precedent: Two Forms of Common Law in Gamble v. United States - Legal Aggregate - Stanford Law School

Rules and Precedent: Two Forms of Common Law in Gamble v. United States - Legal Aggregate - Stanford Law School: The common law plays an outsized role in the Supreme Court’s decision yesterday that the Double Jeopardy Clause does not bar successive prosecutions
The common law plays an outsized role in the Supreme Court’s decision yesterday that the Double Jeopardy Clause does not bar successive prosecutions by the states and the federal government. The petitioner in Gamble v. United States relied on English common law to gloss the original meaning of the Clause and claimed that seventeenth- and eighteenth-century cases and treatises support the notion that, at the time of the Founding, the common law prohibited trying an individual for an offense when another sovereign country had already done so. Justice Alito, writing for the seven-member majority, rejected this argument; he instead reaffirmed the line of Supreme Court cases holding that the Double Jeopardy Clause permits both the federal government and the states to prosecute a defendant because they are separate sovereigns and, therefore, an “offense” against one is not the same as an “offense” against the other. In doing so, he relied on the Supreme Court’s own common law—its prior precedents interpreting the Double Jeopardy Clause.

Professor Bernadette Meyler
Stanford Law Professor Bernadette Meyler

Contending that “something more than ‘ambiguous historical evidence’ is required before we will ‘flatly overrule a number of major decisions of this Court,’” Justice Alito concluded that Gamble failed to adduce a historical basis of a more than “middling” sort for his claim (Gamble, 587 U.S. ___, 11-12 [2019]). In the face of seemingly inconclusive history, the majority in Gamble thus decided to stick with precedent instead of original meaning.
Justice Thomas wrote separately to reject the majority’s understanding ofstare decisis in an opinion that has already been widely discussed—partly because it has been taken as a window into the effort to undermine abortion rights as based merely on constitutional precedent rather than original meaning. Thomas’s long explication of his understanding of English common law and the judicial role of the Supreme Court has additional methodological significance, however. In the opinion, he attempts to bolster the importance of English common law as a source for constitutional rules while at the same time rejecting the Supreme Court’s reliance on precedent—a reliance that he acknowledges emanates from English common law practice. So how does he separate out common law doctrine from adherence to precedent?
According to Justice Thomas’s account, although stare decisis emanated from the common law, precedent did not exert absolute control within that system. As he writes, “the common law did not view precedent as unyielding when it was ‘most evidently contrary to reason’ or ‘divine law,’” and an earlier decision was simply “not law” when it “fail[ed] to conform to reason” (Gamble, 587 U.S. ___, 6-7 [Thomas, J., concurring, 6-7]). On its own, the language Thomas quotes would not prevent judges from basing decisions on their independent assessments of justice and fairness. Thomas insists, however, that “common-law judges were tasked with identifying and applying objective principles of law . . . to particular cases (Gamble, 587 U.S. ___, 7 [Thomas, J., concurring]). Precedent, under Thomas’s account, only helped to identify objective rules rather than itself producing them. With the advent of the Constitution, the rules were codified into “positive law,” a fact that “removes most (if not all) of the force that stare decisis held in the English common-law system” (Gamble, 587 U.S. ____, 8 [Thomas, J., concurring]). The role of objective rules, however, remains. Rather than being diagnosed by judges, they reside instead in the words of the text and its original public meaning; “the key premise,” according to Thomas, is that “words, including written laws, are capable of objective, ascertainable meaning” (Gamble, 587 U.S. ____, 8 [Thomas, J. concurring]).
As Thomas acknowledges though, ambiguities may arise. Put in his language, “Written laws ‘have a range of indeterminacy,’ and reasonable people may therefore arrive at different conclusions about the original meaning of a legal text after employing all relevant tools of interpretation” (Gamble, 587 U.S. ____, 12 [Thomas, J. concurring]). Then and only then would Thomas deem precedent relevant. The Gamble case he views as “a good example” of this very situation (Gamble, 587 U.S. ____, 13 [Thomas, J. concurring]).
But what if ambiguity were a problem not on the periphery of constitutional interpretation but at its core? And whose understanding of the clarity of history should control? In the 5-4 decision in Franchise Tax Board of California v. Hyatt (587 U.S. ___ [2019]) that Justice Thomas authored less than a month ago, he relied on historical claims disputed by four of his colleagues to overrule Nevada v. Hall, 440 U.S. 410 (1979), and hold that the Eleventh Amendment bars states from being sued by individuals in the courts of their sister states. In that case, no one argued that the text dictated the Court’s result. Instead, Thomas asserted, “at the time of the founding, it was well settled that States were immune under both the common law and the law of nations,” and that the states comprising the United States “retained these aspects of sovereignty” (587 U.S. ____, 9 [2019]). The dissenters would surely contest the certainty of these historical assertions.
Nothing in Justice Alito’s opinion in Gamble relies on the rarity or frequency of constitutional ambiguity. And his conclusion that, in the absence of decisive historical evidence to the contrary, precedent should control, comports with common law traditions of judicial adjudication. Yet his opinion leaves open the question of what the Court would or should have done in the absence of earlier decisions about the meaning of the Double Jeopardy Clause. In that circumstance, why should reason not still weigh heavily in the justices’ considerations as it did within the common law tradition Justice Thomas treats? Ambiguous history does not mean no history at all; it simply means that history does not dictate a particular result. In that context, deciding not to protect a right may contravene the historical record just as much as deciding to protect it. When that is the case, it would make sense for the justices to return to the underlying interests that the Constitution was designed to protect in order to craft the best interpretation of a Clause in the present. Such an intervention might look more like Justice Gorsuch’s or Justice Ginsburg’s dissents, which emphasize interpreting the Double Jeopardy Clause in light of protecting liberty, than it would resemble the majority opinion in Gamble.
Bernadette Meyler, JD ’03, is a scholar of British and American constitutional law and of law and the humanities. Her forthcoming book Theaters of Pardoning (Cornell UP, 2019) demonstrates that the representation of pardoning tracks changing conceptions of sovereignty within the plays and politics of seventeenth-century England. 

Safe and sanitary - the limits of advocacy

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The United States appealed the order of District Court Judge Dolly M. Geer enforcing a settlement agreement in the Florio v. Meese/[Barr] class action regarding aliens conditions of confinement in which, as the government now notoriously argued in its brief
The court also rejected Defendants’ argument that “soap, towels, showers, dry clothing, or toothbrushes” are not required under the Agreement because the Agreement makes no mention of those items. 

The news has been full of debate about the unwillingness of DOJ  attorney Sharon Fabian to concede at oral argument before the Court of Appeals in San Francisco that soap, toothbrushes, and beds are necessities implied by the term "facilities that are safe and sanitary" in the 1994 settlement agreement between the U.S. and the Florio class of detained minor immigrants.  

The video of oral argument [below] has made the implacable justice department lawyer an object of social media derision as she refused to yield ground to the dismay of an incredulous panel of three circuit judges.  One of the judges, Japanese American A. Wallace Tashima, had been interned as a child during World War II.  The news story will soon disappear in the tsunami of debate about how we treat the wave of refugees seeking refuge here.  But for those of who teach lawyers about the nature and limits of zealous advocacy it is a 'teachable moment'.

Much sharp commentary in the Twittersphere  has been focused on Sarah Fabian the DOJ lawyer  who as the voice of the government at oral argument met with a dismissive, even derisive reception by a panel of the 9th Circuit Court of Appeals.  Some have suggested she should be disciplined, others such as former DOJ spokesman Matthew Miller say she should have refused to sign the DOJ brief.  But LDF President and Counsel Sherrilyn Ifill has taken exception to the attacks on the lawyer:

As the French and Spanish words for our trade capture - Avocat and Abogado - we represent others - we don't speak for ourselves in litigation or advocacy on behalf of clients.  AS the ABA's Model Rules say a lawyer "zealously asserts the client's position under the rules of the adversary system".[RPC Preamble and Scope] So the Rules of Professional Conduct make clear [RPC 1.2 (b)] that representation of a client "does not constitute an endorsement of the client's political, economic, social or moral views or activities."  But we are limited by the strictures of obeying the general laws and limiting our advocacy to "a good faith effort to determine the validity, scope, meaning or application of the law." [RPC 1.2 (d)]. Similarly RPC 3.1 proscribes "frivolous" arguments, and prescribes "meritorious claims and contentions".  Groundless argument may merit sanction for litigation misconduct under Federal Rule of Civil Procedure 11, or at least theoretically professional discipline.  [Notably DOJ lawyers are practically immune from discipline by the state courts that license them; though subject to its Office of Professional Responsibility.]

The issues and highlights of the oral argument are well presented in this blog post by Jerry Lambe at Dan Abrams Law & Crime.  In the video of oral argument below the most controversial part begins at 24:00

Friday, June 21, 2019

Bolton Keeps Trying to Goad Iran Into War - Peter Beinart - The Atlantic

Bolton Keeps Trying to Goad Iran Into War - The Atlantic: Throughout its history, America has attacked countries that did not threaten it.
by Peter Beinart

The conventions of mainstream journalism make it difficult to challenge America’s self-conception as a peace-loving nation. But the unlovely truth is this: Throughout its history, America has attacked countries that did not threaten it. To carry out such wars, American leaders have contrived pretexts to justify American aggression. That’s what Donald Trump’s administration—and especially its national security adviser, John Bolton—is doing now with Iran.

Safe and sanitary doesn't compel tooth brushes an soap for detainees - Justice Lawyer

Thursday, June 20, 2019

Justice Alito just wrote the most terrifying sentence to appear in a Supreme Court opinion in years – ThinkProgress

Justice Alito just wrote the most terrifying sentence to appear in a Supreme Court opinion in years – ThinkProgress

Artifact or Establishment? American Legion v. American Humanist Assn.

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 On a bluff at George's Harbor, St. George, Maine is a granite cross.  The Weymouth cross was erected in 1907 by the State of Maine.  On Allen Island, it marked the tercentennial of Maine.  George Weymouth - captain of the Archangel - erected a cross and held the first religious ceremony by Englishmen.  That 1605 event was commemorated in 1905 by the State with warships, dignitaries, and Governor in attendance.
The scenic spot - on Islands now owned by the Wyeth family - is a favorite of mine.  The cross marks, of course a religious ritual by agents of James the Stuart King of England, soon to be conquerors.  
Today the United States Supreme Court 7-2 allowed to stand the Bladensburg war memorial cross in Maryland.  I concur in the judgment.  American Legion v. American Humanist Assn, No. 17-1717 | Casetext 
The Georges Harbor "Weymouth cross" on a remote island on the coast of Maine commemorates a criminal enterprise - the settlement of North America.  The cross identified the State with the efforts and culture of the first Englishmen to explore and soon settle the region.
We would not erect such a cross today - not in Maine which has just renamed the October holiday Indigenous Peoples Day.   But it is an historical artifact - evidence of both the original event, and the obliviousness of the conquerors' successors - the State's white overwhelmingly Christian majority of 1905.  I would leave to the State the burden of explaining how our understanding has changed.  Perhaps on the occasion of Maine's first Indigenous Peoples Day 2019.

Andrew Bacevich, The Fake News of D-Day | TomDispatch

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Tomgram: Andrew Bacevich, The Fake News of D-Day | TomDispatch
***[Unlike Angela Merkel] Russian President Vladimir Putin did not, however, make the guest list [for the D-Day 75th anniversary ceremonies]. In liberal circles, Putin has, of course, made himself persona non grata. Yet excluding him obviated any need for Trump and other dignitaries in attendance to acknowledge, even indirectly, the Soviet role in winning World War II. Although the Red Army was never known for finesse or artfulness, it did kill an estimated four million of Merkel’s countrymen, who were thereby not on hand to have a go at killing Donald Trump’s countrymen. 
If war is ultimately about mayhem and murder, then the Soviet Union did more than any other belligerent to bring about the final victory against Nazi Germany. Without for a second slighting the courage and contributions of our Canadian, Polish, Norwegian, and Australian comrades -- bless them all -- it was the Red Army that kept General Dwight Eisenhower’s expeditionary command from being pushed back into the Channel. In other words, thank God for the godless communists.