Times change

From: George Conk <georgeconk@gmail.com>
Date: Sun, Jan 21, 2007 at 6:49 PM
Subject: Re:
To: Theresa Conk

I don't take Obama's campaign seriously, except as a learning experience for him and his team.  I hope he doesn't make any embarassing mistakes.

More later.

- Dad

Change: Sen. Harkin moves to lift restrictions on Legal Services

Law.com reports:

A key group of Democratic senators has introduced a bill to increase funding for the federal Legal Services Corp. (LSC) and to lift many of the restrictions on LSC-funded attorneys, such as the prohibition on the filing of class actions and the collection of attorney fees.

The measure's principal sponsor is Senator Tom Harkin (Iowa), a former Legal Services lawyer. It would fund Legal Services Corp. at $750 million - the inflation-adjusted equivalent of LSC's funding at its 1981 high-water mark. Harkin's statement is here.

When I was a law student intern and then a Legal Services staff attorney (1977-1978) law reform and challenges to government were the animating spirit of the civil legal services for the poor programs that grew out of President Johnson's War on Poverty. The Manhattan anti-poverty agency Mobilization For Youth gave birth in 1964 to MFY Legal Services on the Lower East Side. MFY and CRLA - California Rural Legal Assistance - founded 40 years ago - were our icons.

Senator Robert F. Kennedy in 1966 embraced the cause and leadership of Cesar Chavez, the Catholic Worker movement leader of the proto-union then called the United Farmworkers Organizing Comittee which led the national boycott of non-union grapes.

California Rural Legal Assistance earned the animosity of then-Governor Ronald Reagan by taking on the cause of farmworkers in California's Central Valley. CRLA was in fact an ally of the workers whom the United Farmworkers Organizing Committee sought to unionize. The migrant workers - largely Chicano, Mexican, and Philippino - tended and harvested the fruit and vegetables that feed us all. They had been lionized by Woody Guthrie in Pastures of Plenty.

Ronald Reagan's attack on Legal Services as Governor helped make him an icon for some - but anathema to us. When as President he nationalized the assault, cutting funds, we mobilized in New Jersey. With the encouragement of Stanley Van Ness, the Public Defender of New Jersey - my classmates at Rutgers Law School - Louise Halper, Al Donnarumma and I - initiated Public Interest Lawyers of New Jersey. We organized a lawyer's petition drive, and rallied allies to Save Legal Services. We had some effect but restrictions mounted, funds were cut, and persons hostile to Legal Services were appointed to its Board by the President.

It was the beginning of a long fight in which abolition of Legal Services - like tort reform - became a ritual cry for some. The result was attrition - less money, prohibition of class-action litigation, and barring Legal Services from receiving counsel fee awards even when they prevailed in civil rights cases.

The threat to the proram was mitigated by development of the Interest on Lawyers Trust Accounts device, which has drawn the strong support of bar associations and courts. It has long been a centerpiece of the Canons of Ethics that lawyers have an obligation to provide legal assistance to those who cannot afford it. Today the ABA Model Rules of Professional Conduct in R. 6.1 calls upon lawyers to devote 50 hours per year of pro bono publico legal activity, and to "voluntarily contribute financial support to organizations that provide legal services to persons of limited means".

Now the economic crisis which has greatly increased the need for legal services for the poor has also further impoverished Legal Services - dependent as it is on interest on lawyers' now bare trust accounts as the home sales that provided the transient balances have plummeted.

Removal of the restrictions on forms of practice and removing the bar on seeking counsel fees as Senator Harkin's bill proposes are thus key to saving Legal Services.

p.s. - it is a great source of pride that my mother Clare M. Conk has for 25 years been a member of the Board of CRLA.

South Park: Bailout

U.S. holds 25% of world's prisoners. Sen. Webb: Overhaul Crim. Justice System

The unnecessary use of the death penalty in China - a more civil society in many ways than ours (they lack the 2d Amendment) distresses me. I want them to be better. But it doesn't matter as much to me as the sickening facts about ours. The waste of youth, the appalling statistics about more black men in jail than college, etc.

In Sunday's Parade magazine Senator Jim Webb (how lucky we are that this former Reagan Sec'y of the Navy joined us) is talking seriously and urgently about criminal justice:

"America's criminal justice system has deteriorated to the point that it is a national disgrace," said Senator Webb. "With five percent of the world's population, our country houses twenty-five percent of the world's prison population. Incarcerated drug offenders have soared 1200% since 1980. And four times as many mentally ill people are in prisons than in mental health hospitals. We should be devoting precious law enforcement capabilities toward making our communities safer. Our neighborhoods are at risk from gang violence, including transnational gang violence.

Webb continued: "There is great appreciation from most in this country that we are doing something drastically wrong. And, I am gratified that Senator Specter has joined me as the lead Republican cosponsor of this effort. We are committed to getting this legislation passed and enacted into law this year."

Here's the link to the information page about the measure The National Criminal Justice Act of 2009

AI: 3/4 of World's Executions in China

Amnesty International's 2008 report on Executions and Death Sentences states that 76% of the world's executions were in east and south Asia.  China's 1,718 was 94% of Asia's total and nearly 75% of the world's executions.

The Supreme People's Court's 2007 resumption of its long dormant review of death penalty cases has been reported by Chinese authorities to have led to a 30% reduction.  But because of state secrecy the numbers cannot be verified and many believe that Amnesty's estimates are low.

Other East and South Asian states' executions are:  

Pakistan (at least 36), Viet Nam (at least 19), Afghanistan (at least 17), North Korea (at least 15), Japan (15), Indonesia (10), Bangladesh (5), Mongolia (at least 1), Malaysia (at least 1), and Singapore (at least 1).

China has a unique system of conditional death sentence - which as a practical matter is a long (but not life-long) prison term.  Provisional death sentences are included in China's total below.

The following 16 countries are known to have sentenced a total of least 7767 people to death: 

China (at least 7003), Pakistan (at least 236), Bangladesh (at least 185), Afghanistan (131), India (at least 70), Viet Nam (at least 59), Japan (27), Malaysia (at least 22), Indonesia (at least 10), Taiwan (at least 8), Singapore (5), Thailand (at least 3), North Korea (+), South Korea (at least 2), Sri Lanka (2) and Laos (2).

The AI report is here.

Galbraith v. Geithner, Goolsbee v. Krugman

Here's the video of James Galbraith's take on how under the Geithner plan th the banks get insulated and the taxpayers take the hit for bad loans.

And here's the Hardball video of Austan Goolsbee, Director of the White House Council of Economic Advisers, scarcely able to disagree with Krugman's point about socializing the losses and privatizing the profits.  Krugman said:

"[T]he Geithner scheme would offer a one-way bet: if asset values go up, the investors profit, but if they go down, the investors can walk away from their debt. So this isn’t really about letting markets work. It’s just an indirect, disguised way to subsidize purchases of bad assets."

Since the government will guarantee smtg like 85% of face value, the only loss is the buyer's half of 15%.  If the mortgage proves to be good, or the house has value, then all the gain goes to the buyer.  

Is that right?

So after you view these two videos, please tell me why is the administration doing this?

Is it that ideology makes Congress an insuperable obstacle to nationalization - even though that would get us public control of the banks at low cost (because their obligations exceed their assets) and the public would get the gain if the debt is collected, or the asset sold at a decent price?

A Swedish perpective: Geithner's Faustian Bargain

For a Swedish perspective on the Geithner plan see here

Calculated Risk suggested the link.

Hey, Paul Krugman, where are you now that your country needs you?

Paul Krugman has said he is "temperamentally unsuited" to be in government and probably has more influence as a gadfly than in office in Washington.  That is counter-intuitive.  Which is a nice way of saying WRONG!  Power is wielded - and you need to have your hands on the levers to exercise it.

So here's a young singer with the same message:

Another take on the Geithner plan

Berkeley prof. Brad DeLong sees the Geithner plan as the Treasury's trillion dollar hedge fund with a potential 5-1 return on equity.  See his blog Grasping reality with both hands

Geithner, Bernanke and bad debt

Paul Krugman sounds the alarm about the Treasury plan in his Times blog.  The Geithner plan is the message Ben Bernanke delivered on 60 minutes last week in his Uncle Ben's fireside chat: what we have is a crisis of confidence.  We have saved the banks, we're going to print money - a lot of money - and lend it at low rates.  People will borrow it and do things with it. 

Now about all that bad debt: we'll buy it or guarantee it - at a high price on the belief that it's worth more than what people will pay for it now.  But with 12% of home mortgages one or more payments behind (or in foreclosure) those debts are losing value every day.  So as Krugman says we're privatizing profit and socializing the losses.  No wonder Senate Republicans considered Geithner a must.  They like the Bernanke plan, and fear someone with a Swedish approach - interim nationalization, as Krugman elaborates here.  

We'll probably lose the chance for that when the tsunami of populist rage over these losses washes over Congress AND the White House.  The AIG bonus tax vote shows the impulsive and ill-considered measures the House of Representatives can cook up when left-wing leveling sentiment meets right-wing I hate government sentiment.

China Law Databases

Flora Sapio has posted this list of China Law Databases on her blog.

New Mexico follows N.J. in Death Penalty Repeal

The New Mexico Legislature last week voted to replace the death penalty with life impriosnment without parole.  Yesterday Gov. Bill Richardson signed House Bill 285, making New Mexico the second state to repeal the death penalty by vote of elected representatives.  It shows that New Jersey's 2007 repeal earns it the title, as my forthcoming essay declares,  "herald of change".

New Mexico last executed a person in 1960.  State Representative Gail Chasey introduced the measure and led the effort in the legislature.

Troubled by the heavy minority poplation in the state's prisons, and the possibility of error, he nonetheless found the decision difficult.  Richardson explained in his signing statement:

"With my signature, we now have the option of sentencing the worst criminals to life in prison without the possibility of parole. They will never get out of prison. 

Faced with the reality that our system for imposing the death penalty can never be perfect, my conscience compels me to replace the death penalty with a solution that keeps society safe.

The bill I am signing today, which was courageously carried for so many years by Representative Gail Chasey, replaces the death penalty with true life without the possibility of parole – a sentence that ensures violent criminals are locked away from society forever, yet can be undone if an innocent person is wrongfully convicted. More than 130 death row inmates have been exonerated in the past 10 years in this country, including four New Mexicans – a fact I cannot ignore.

From an international human rights perspective, there is no reason the United States should be behind the rest of the world on this issue. Many of the countries that continue to support and use the death penalty are also the most repressive nations in the world. That’s not something to be proud of.

In a society which values individual life and liberty above all else, where justice and not vengeance is the singular guiding principle of our system of criminal law, the potential for wrongful conviction and, God forbid, execution of an innocent person stands as anathema to our very sensibilities as human beings. That is why I’m signing this bill into law."

As in New Jersey the Catholic Church, and citizen activists like the New Mexico Coalition to Repeal the Death Penalty (picture above) made a major contribution.  

Chinese Criminal Law Revised

Flora Sapio has posted a translation of the revised criminal code of China, as amended by the recently concluded session of the National People's Congress.  The most notable aspect of the session is the NPC's failure to make any move to narrow the grounds for the death penalty, despite the NPC-prompted recent re-assertion by the Supreme People's Court of  its long-dormant  power to review all non-suspended death sentences .  

The death penalty is said by Article 48 of the Chinese code to be reserved for the "most heinous" crimes.  Although there have been press releases by officials claiming a 30% reduction in executions we still don't know 30% of what number?  Nor is there any way to know how "most heinous" is understood in actual practice.

Here is the link to Sapio's blog - Forgotten Archipelagoes - which is must reading for anyone interested in developments in Chinese criminal law.

New Federal Judicial Ethics Rules

New rules of ethics for federal judges go into effect on July 1, 2009.

The most interesting element may be the effort to define the much-lambasted phrase "appearance of impropriety".  The definition is:

“An appearance of impropriety occurs when reasonable minds, with knowledge of all the relevant circumstances disclosed by a reasonable inquiry, would conclude that the judge’s honesty, integrity, impartiality, temperament, or fitness to serve as a judge is impaired.”

If that is the standard for recusal, I think that Justice Scalia should not have participated in the 2004 case involving then V.P. Cheney's claim of confidentiality of official consultations on energy policy, when the Justice and his daughter went duck-hunting, as guests of theVice President, flying on Air Force Two.  Gives new meaning to the term duck blind. The Sierra Club unsuccessfully moved to compel recusal.  The Times editorialised on the issue here.

The new rules can be found here

9/11 Plaintiffs Sought Truth and Justice

I have long resented the depictions of the tort system as a lottery, as a crude and inefficient regulatory system that reduces injuries to costs, and the critique that glorifies mediation and "ADR" as somehow more civilized than litigation and trial.  None of it rang true to me in my 30 years making my living as a tort lawyer.

Mediation has its place - but the ideology of cost and benefit reduces justice to that single unconscionable metaphor - money.  Its digitized heart ignores the analog - the beat of the heart which drives the discovery of truth, the adjudication of wrongs, and the fixing of compensation.  

Some may seize on the order of Judge Hellerstein accepting the report of mediator Sheila Birnbaum to complain that fear of liability judgments drove settlement costs up in the cases of the 9/11 airplane and ground victims families.  The plaintiffs rejected the settlements offered by Kenneth Feinberg, the standing master of the September 11 Victims Compensation Fund.  They chose litigation.  In a revealing survey Southern Cal law professor Gillian Hadfield explains why they sued:

"for many potential claimants, the choice between accepting a payment from the Fund and going to court was not exclusively, or even primarily, framed as a financial calculation. It involved not an easy trade-off between a guaranteed dollar payment and a gamble on a ‘‘pot of gold,’’ but a deeply troubling trade-off between money and a host of nonmonetary values that respondents thought they might obtain from litigation. These values included information from otherwise inaccessible sources (the decision makers who determined airline and World Trade Center fire safety procedures, forexample), accountability in the sense of public judgment about whether those on whom victims depended for their safety did their jobs, and responsive policy change making sure that lessons were learned and heeded in the future."

Tort litigation is not just about risks, accidents, and costs.  It is about judgment and recourse.  And citizens recognize it when the "tort reform" fog lifts.  We have reason to hope that is part of the change that came to America in Novermber 2008.   Last week's Levine v. Wyeth decision on drug product liability may be a harbinger of restoration of the function and purpose of tort law.

As I described it a couple of years ago in the Penn State Law Review:

"Tort law asks what constitutes socially unreasonable conduct and, by reasoned judgment, allocates liability, and assigns responsibility. Tort shares that public function with many institutions. But tort law is unique in that it is essentially private law. The parties are not the public, nor strangers to the controversy, but rather are the actors and victims themselves. As the system has evolved two key elements should be observed: tort law measures the conduct of all parties, allocating responsibility among them, and it gages conduct in context. What is socially required is determined, as we learn in the first semester of law school, by what constitutes reasonable care under the particular circumstances."

Does Madoff's defense attorney have a conflict of Interest?

A convenient exemplar of a government presentation in a "Curcio" hearing under F.R. Crim. Pro. 44 is this letter to Judge Sand, which Judge District Denny Chin (a Fordham alum) ruled upon today.

During the hearing, Judge Chin asked Mr. Madoff to detail his understanding of the conflicts and he did so.

The judge then said: “I find that the conflicts here are waivable. I find further that Mr. Madoff understands his right to conflict-free counsel and is waiving that right, and I find he is doing so knowingly.”

“Mr. Sorkin can continue to represent Mr. Madoff in this matter,” Judge Chin said.

The result was a foregone conclusion - the government was just making sure that Madoff had no ground for later complaint if he comes to regret the guilty pleas which is expected he will enter on March 12.

The Department of Justice has now posted a transcript of the Curcio hearing.

The court also addresses the waiver of indictment, and makes reference to a Pimentel letter. In that document the government lays out the possible sentence the accused faces.

September 11 Tort Litigation Comes to an End

97 %  of  9/11 victims accepted the compensation offered by the September 11 Victims Compensation Fund.  But a small number pursued tort litigation despite its delays and risks of loss.

Newsday has reported that 92 of the 95 cases brought by ground victims and airlines passengers have settled for $500 million.  The sum is consistent  with historic settlement patterns in airline disaster cases.  Mediator Sheila Birnbaum, a tort defense-side stalwart, reported that the mediation process of face to face confrontation with airline company representatives was an important, and therapeutic element.  In my own practice I found that in wrongful death cases the cathartic element of mediation process was valuable in both achieving settlement and a degree of closure for the families of the deceased.

The 2001 Air Transportation Safety and System Stabilization Act (ATSSA), which created the September 11 Victims Fund also limited the airlines’ liability to insurance in place on 9/11.  The measure proves to have worked well, as I predicted it would in my article in Penn State Law Review `Will the Post 9/11 World Be a Post-Tort World?’

The ATSSA, I wrote, “relieves the court of the prospect of helping to drive airlines and aircraft manufacturers into financial ruin. In such a circumstance it will be easier to focus on the fault of the airlines, of the security personnel, and of Boeing. Because of the aggregate damages limits and the compensation of Fund claimants, pressure to reject the imposition of tort liability by the retributive principle will be less compelling. No great disproportion between wrong and harm will be posed by the imposition of liability on the insured defendant manufacturers, airlines, airports, and landlord.”

“The 9/11 ground victims and passengers tort actions, brought by those who have foregone the opportunity for no-fault compensation presents the opportunity for the civic judgments to be made that underlie the appeal and importance of the law of torts: first, assessment of whether the actors (both the aviation defendants and the managers of the WTC) took sufficient account of the interests of others - those in the planes and those on the ground - in their conduct; and second, requiring  them to bear the costs that their wrongful conduct imposed on others (within legislated limits which function as limits imposed by the retributive principle).”

“It may be nonetheless that despite, or because of, its doctrinal impurity, the ATSSSA's combination of no-fault social insurance compensation with an optional and limited tort remedy will prove itself to have been a very judicious choice - one which will bring closure, compensation and social, moral tort judgment under tragic circumstances.”

September 11 litigation decisions and orders are available at this page on the Southern District website.

The post- 9/11 tort claims were venued by statute in the U.S. District Court for the Southern Circuit.  Judge Alvin K. Hellerstein has handled this mountain of litigation with a judiciousness, compassion, and practicality that warrants the highest praise.

image: Breezy Point Memorial

Screening of lateral hires - M.R. 1.10 Amended

post-script: At its August meeting the ABA will consider clarifications of R.1.10 (a) to make clear that the screening rule applies only to "laterals". Here's the post from Legal Ethics Forum.

The ABA House of Delegates on February 16, 2009 approved an amendment to Model Rule 1.10.

The change permits pre-hire screening of migrating laterals. The new firm may be adverse to the client of the lateral-hire's former firm.

The key language is this:

Rule 1.10 Imputation of Conflicts of Interest: General Rule

(a) While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7 or 1.9, unless

***

(2) the prohibition is based upon Rule 1.9(a) or (b), and

(i) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefore;

(ii) written notice is promptly given to any affected former client to enable the former client to ascertain compliance with the provisions of this Rule, which shall include a description of the screening procedures employed; a statement of the firm's and of the screened lawyer's compliance with these Rules; a statement that review may be available before a tribunal; and an agreement by the firm to respond promptly to any written inquiries or objections by the former client about the screening procedures; and

(iii) certifications of compliance with these Rules and with the screening procedures are provided to the former client by the screened lawyer and by a partner of the firm, at reasonable intervals upon the former client's written request and upon termination of the screening procedures.

The full text of the amended rule, resolution, and report (with a minority dissenting) is here

The language is still subject to tweaking to cure ambiguities, as discussed here.

The Next Step in Drug Product Liability

The pharmaceutical industry’s efforts to uproot the ancient right of compensation of persons injured by a “negligent Apothecary” came to an abrupt end in the Supreme Court on Wednesday, March 4, 2009 in the Phenergan case Wyeth  v. Levine.  In a 6-3 decision the Court brushed aside the Bush-Administration FDA’s efforts to protect pharmaceutical manufacturers from liability. 

Justice John Paul  Stevens wrote for the Court:

“Wyeth suggests that the FDA, rather than the manufacturer, bears primary responsibility for drug labeling. Yet through many amendments to the FDCA and to FDA regulations, it has remained a central premise of federal drug regulation that the manufacturer bears responsibility for the content of its label at all times. It is charged both with crafting an adequate label and with ensuring that its warnings remain adequate as long as the drug is on the market.”

My most concise statement on the preemption issue was probably from the floor at the November 2008 Product Liability symposium at Brooklyn Law School which you can hear by following this link (at minute 66.30):

“ It is very rare that the FDA requires any particular warning - what it actually does is permit the use of a warning proposed by a manufacturer who is in general in a far superior position to determine the facts regarding risks and benefit.  And so the principal actor... is the designer, manufacturer,  and marketer.  That is the principal source of expertise, not the FDA, which the National Academy of Sciences/Institute of Medicine, in its report  The Future of Drug Safety,  has described as scientifically incompetent and demoralized, and funded by the regulated industry.” 

Having endured the slings, slights, barbs, and arrows of academics bending like reeds in the winds from the right, I won’t pass up the opportunity to say “I told you so”.  And I have in journals from Yale to UCLA, and the University of Texas.  And, of course, in McDarby v. Merck  in which I was on the brief.  It is the only appellate decision to comprehensively review (and find sufficent) the plaintiffs’ evidence in a Vioxx case.  

You can hear my  summation of the issues in the Vioxx cases at minute 1:20.20 of the video below - a panel discussion at NYU in February 2009 (pre-Levine) at which the tilt to the right on preemption was strong.  Only Ben Zipursky of Fordham stated a clear defense of the principle of recourse for wrongs.  

Allison Zieve of Public Citizen and Richard Daynard of the Tobacco Product Liability Project, like me, spoke strongly but from the floor.

The Next Step: Product Stewardship

A duty to study real-world use of drugs!

The next step in drug product liability law should be what I have called “product stewardship”.  It is based on recognition that FDA permission to market is not the end of study but rather the beginning of the next stage of drug development: the mass, poorly controlled human experiment stage.

Product stewardship obligates medical product makers to systematically and actively follow their products' use, to continue testing as they market, and to provide meaningful comparisons of the effectiveness of actual treatment choices. Like physicians discussing surgery with patients, medical product makers must compare their products' risks and benefits - based on real-world data - both to competing products of the same class, and to recognized competing   therapeutic options, including those the manufacturer's product does not serve. See my article Punctuated Equilibrium.

for the entire NYU preemption Symposium, including the afternoon litigation panel with leading plaintiffs' lawyers Elizabeth Cabraser, Richard, Daynard, and Allison Zieve go here

How Blackstone got started

In 1753, William Blackstone delivered the first series of lectures on English law ever presented at an English university. 

Having recently been denied appointment to a professorship of civil (or Roman) law, he organized a private course at Oxford on English law, a subject which he recognized had "generally been reputed (however unjustly) of a dry and unfruitful nature."  

Charles Viner later left the proceeds of his own abridgment of English law to Oxford. In 1758, two years after Viner's death, Blackstone became the first Vinerian Professor of the English Common Law.   

He inaugurated his professorship by arguing against the traditional view that the Roman legal system was the only one worthy of university study.  Before leaving his professorship eight years later, Blackstone began to publish his lectures. The four volumes of his Commentaries appeared between 1765 and 1769. 

from Rediscovering Blackstone, Alan W. Alschuler, 145 U. Pa. L. Rev. 1 (1996)