Friday, April 30, 2010

2d Circuit - Ineffective lawyering compels reversal of immigrant's illegal return conviction

Second Circuit Judge Robert Katzmann has again advanced the cause of effective assistance of counsel in deportation proceedings.  Cerna v. United States   is the second swallow this spring from federal courts. Just four weeks earlier Justice John Paul Stevens in a 7-2 decision, citing a lawyer’s neglect, reversed a criminal conviction, emphasizing the “severity of deportation"—“the equivalent of banishment or exile”.  Padilla v. United States (March 31 2010)
Ten year old Jose Cerna arrived from El Salvador in 1983.  He became a permanent resident alien but ran afoul of the drug laws early and repeatedly.  Yet he was a sympathetic enough character that in 1996 an Immigration Judge  found that though Cerna’s deportability had been established by clear and convincing evidence, Cerna was eligible for relief from deportation in the form of a waiver of inadmissibility.  His lawyer Maria Liz asked for 45 days to file the necessary administrative appeal.  She never did and she never told her client.  The removal order, unknown to her client, therefore became effective.
Years later more trouble with the law led to charges of illegal re-entry to the United States, a crime.  8 U.S.C. 1326.   Alvin K. Hellerstein, the sentencing judge, was conflicted.  He said to  Cerna “your case is a difficult one because you’re like two persons. You were one person at one time in your life and now you’re a different person in another part of your life.”.  Hellerstein was bound by § 1326 (d) which conditions relief on proof  that the alien “exhausted any administrative remedies that may have been available to seek relief against the order” as well as that “the order was fundamentally unfair”.  Since the IJ had himself suggested waiver of inadmissibility the exhaustion requirement was the only insuperable obstacle.
But excusing the exhaustion requirement is the kind of thing that Circuit Judges are better positioned to permit - in a “precedential opinion” .  Judge Katzmann has been a leading voice  to improve the quality of representation of immigrants.  The panel (with Hall and Rakoff joining) granted Cerna relief.  Saying the lawyer’s neglect excused the failure to exhaust administrative remedies they remanded for a finding of whether the order entered was “fundamentally unfair”, strongly suggesting that it was.
Declaring that immigrants are entitled to “effective assistance of counsel”, Katzmann grounded the Court's analysis in the due process clause of the Fifth Amendment.  Since the attorney’s error was in the "civil" removal proceeding, not the criminal prosecution, the Sixth Amendment did not apply.  The progeny of Gideon v. Wainwright root the concept of “effective assistance of counsel”  in the fair trial protections of the Sixth Amendment.  But  its antecedents are in the Fifth Amendment.  The Supreme Court, in the 1932 “Scottsboro Boys” case Powell v Alabama, grounded its decision in the due process clause.  The seven African American men, accused and convicted of capital rape, had been represented by a lawyer appointed by the court the morning the trial began - six days after the alleged offenses. 
Now  the concept as well as the remedy have migrated to immigration proceedings - where a lawyer’s failure has long been grounds for reconsideration of a deportation order. Matter of Lozada, 19 I & N Dec. 637 (BIA 1988).  In Aris v. Mukasey, 517 F. 3d 595, 600-601 (2d Cir. 2008) Judge Katzmann reviewed the substantial body of law finding that due process requires fairness in a removal proceeding.  Last year Attorney General Holder reversed  Attorney General Michael Mukasey’s repudiation of a due process defense for aliens facing deportation.
In 1984 the Supreme Court in Strickland v. Washington 466 U.S. 668,  found that an ineffective assistance claim required proof of prejudice - that “but for counsel's unprofessional errors, the result of the proceeding would have been different.  A reasonable probability is a probability sufficient to undermine confidence in the outcome. ”  That standard too has migrated into the formally civil immigration proceeding context .  United States v. Copeland, 376 F.3d 61, 73 (2d Cir. 2004) held that prejudice “is shown where there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the (removal) proceeding would have been different.”
Although we are a long way from an immigrant’s version of Gideon v. Wainwright, as the alarm felt by Latin citizens of Arizona attests, the Second Circuit’s ruling reminds us that as a nation we are of two minds and that the forgiving and embracing side has forceful and effective judicial allies.

UPDATE:  The New Jersey Law Journal Editorial Board lauded Judge Katzmann's  opinion in Cerna HERE
Image: Judges Katzmann, Sonia Sotomayor, and Damon Keith at a Second Circuit tribute to the civil rights movment

Tuesday, April 27, 2010

Sparks fly on Capitol Hill: How much of that "sh*tty deal" did Goldman sell?

Above is the classic swearing in photo at a Congressional auto da fe.  The clip below will, of course, be prominent on The Daily Show tonight, on Colbert, and every other news show, but the moment is so classic that why not record it here.  The witnesses are all, of course, being strangled with their own email chains.  This is a witness on the ropes with his face being rubbed in the sh*t by the gloating interrogator.  It was an irresistible opportunity for the questioner - here Sen. Carl Levin (D-MI) and he didn't resist the opportunity to subjugate Goldman Sachs trader Daniel Sparks.

Sunday, April 25, 2010

Institute of Medicine to Advise FDA on Post-marketing Drug Safety Trials

Inspired by the Institute of Medicine's landmark report The Future of Drug Safety - Section 901 of the 2007 Amendments to the Food Drug and Cosmetic Act empowers the FDA to " require a responsible person for a drug to conduct a postapproval study or studies of the drug, or a postapproval clinical trial or trials of the drug...

‘‘(i) To assess a known serious risk related to the use of the drug involved.
‘‘(ii) To assess signals of serious risk related to the use of the drug.
‘‘(iii) To identify an unexpected serious risk when available data indicates the potential for a serious risk."
This new regulatory power is consistent with my 2007 article Punctuated Equilibrium.   I call for courts to recognize a negligence-based common law duty of "product stewardship" owed to consumers by manufacturers - to follow the actual impact of their drugs and medical devices when people start using them after marketing.  Post-approval study of actual conditions of patient use may yield or confirm effects only suspected (or slighted) by the product proponent while obtaining FDA approval to market.  

Now the FDA has asked the Institute of Medicine to advise it on practical implementation of the statuory grant of power.

Studies of Drug Safety and Post-Marketing Requirements

Consensus Study
Quality and Patient SafetyBiomedical and Health Research
Board on Population Health and Public Health Practice

Activity Description

The Food and Drug Administration has requested that the IOM convene a committee to evaluate the scientific and ethical issues involved in conducting studies of the safety of approved drugs.
Questions to be explored by a committee include:
  1. What are the ethical and informed consent issues that must be considered when designing randomized clinical trials to evaluate potential safety risks?
  2. What are the strengths and weaknesses of various approaches, including observational studies, including patient registries, meta-analyses, including patient-level data meta-analyses, and randomized controlled trials, to generate evidence about safety questions?
  3. Considering the speed, cost, and value of studies, what types of follow-up studies are appropriate to investigate different kinds of signals (detected pre-approval or post-marketing) and in what temporal order?
  4. Under what circumstances should head-to-head randomized clinical trials for safety be required?
  5. How should FDA factor in different kinds of safety evidence in considering different kinds of regulatory actions?

Saturday, April 24, 2010

Behind the veil: Banning the veil

The woman in the background in white is dressed very much like one of my favorite teachers - Sister Mary Martin DePorres, a Dominican nun who in the early 50's took the name  of Blessed Martin DePorres .  The mixed race child of a Spanish Knight and a negro free woman, he was at first denied, then abandoned by his father, growing up as the poverty-stricken illegitimate mixed-race child of a single mother.  Sister Mary Martin, whose face and hands were the only parts of her body seen in public, was a progressive inspired to take the name of Martin who became a Dominican Lay Brother and was eventually canonized.

But now the French, who ban the burka, see those who dress like nuns as expressing one Islamist vice or another.  Over at Patrick O'Donnell has an interesting introduction to the debate on  whether bans on the veil violate the international law of human rights.

Friday, April 23, 2010

Remember November?? - Republican Governors take the low road

"We  Remember 
Remember November so that we can return America to its founding principles of freedom, personal responsibility and economic liberty. We Remember November so we, our children, and grandchildren can live with the freedoms our founding fathers intended." 
- Republican Governors Association

Par for the course Republican rhetoric at first glance.   But  Remember November is the tag line for a fundraising drive that presents  a disturbing race-baiting message that signals an ugly fall campaign.   The slogan of the moment of the Republican Governors Association (led by  Gov. Haley Barbour  [R-Miss]), it is perhaps what prompted Republican National Committee Chairman Michael Steele to say a few days ago

For the last 40-plus years we had a "Southern Strategy" that alienated many minority voters by focusing on the white male vote in the South.

View the video for yourself HERE

Thanks to Michael Scherer of the Swampland blog at

Tuesday, April 20, 2010

The Sorcerer's Apprentice

It's one of my favorite metaphors - the Sorcerer's Apprentice.  I found this scene terrifying as a child.  I find the metaphor particularly apt for the cyber revolution.  It all just grows increasingly complex and leaves you feeling out of control.  It's good for other things too.  But here is the original Fantasia scene. 

Saturday, April 17, 2010

SEC Charges Goldman Sachs with fraud

SEC Seal

The SEC's fraud prosecution of Goldman Sachs will yield  a tsunami of coverage.   The complaint demands a trial by jury.  It therefore calls upon  the public - in federal court in Manhattan - to judge the conduct of one of the icons of the financial world - and thus all of what we still call Wall Street.

It illustrates the gap between the ethics of Wall Street and that of the legal profession.  The ABA Rules of Professional Conduct - the model for virtually every state - provide in R. 1.7 that "a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: 
(1) the representation of one client will be directly adverse to another client; or (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer."

    Further, according to R. 1.10 if one member of a firm has a conflict of interest the entire law firm is disqualified.  That is a law firm cannot be on both sides of a controversy.  But as the NY Times graphic above shows Goldman Sachs bet heavily on both sides of the table - extracting fees from those on both sides of the bet.  Hedging your bets this is called.  Their defense so far centers on  knowledgeable risk-taking by their sophisticated clients, and the claim that Goldman itself bet long and lost.  See Goldman's statement HERE.

    For the record - the complaint is HERE.  The SEC's first litigation press release is HERE.  The Times page on the SEC Complaint is HERE.  Times guest commentators on `What the Goldman Complaint Reveals' is HERE.

    NJ Law Journal: 9/11 Planners Should Face a Jury

     In Congress and in remarks at the U.S. Constitution Project's awards dinner  Attorney General Holder this week defended the Administration's plans to use both Article III civilian courts and Military Commissions in trials of persons charged with terrorism.  The independent Editorial  Board of the New Jersey Law Journal  has endorsed the plan to try  9/11 planners before a civilian jury.


    The Public's Right To Judge

    New Jersey Law Journal
    April 16, 2010

    When Attorney General Eric Holder Jr. says he wants to try, convict, and sentence to death the accused 9/11 planners, Sen. Charles Grassley acts like Holder wants to bake them a cake. Grassley objects in a letter to President Obama that a trial would provide "unprivileged enemy belligerents a venue to spew their hateful rhetoric; creating new public terrorist targets out of our federal courthouses ... providing non-U.S. citizen terrorists constitutional protections associated with criminal prosecutions; and providing terrorists more rights than our military men and women when they are subject to a court-martial." The Senator goes on to say....
    "Additionally, Attorney General Holder also referred some detainees who are charged with attacking the U.S.S. Cole back to the Department of Defense for trial via military commission. In splitting the prosecutions into two categories, it appears that the Attorney General has created a system which allows the terrorist to select the forum for justice by simply choosing to select a civilian or military target."
    The administration has drawn the line at a perfectly sensible place: Those who attacked civilians deserve to be tried before a civilian court. As Justice Anthony Kennedy emphasized in a civil context in Edmonson v. Leesville Concrete , 500 U.S. 614 (1991), trial by jury is not simply a right of the litigant. The opportunity to be a member of a jury is a public right of citizenship which may not be arbitrarily denied. Justice Antonin Scalia has described the jury as the "spinal column" of democracy.
    The Sixth Amendment provides for "speedy and public trial by an impartial jury in the state and district where the crime shall have occurred." The jury is not only a barrier to arbitrary government conduct. It is the bulwark of citizens' participation in the justice system and the public's opportunity to judge the accused. A jury brings the community's judgment. A court-martial cannot, as under the Uniform Code of Military Justice, every participant — judge, jury, prosecutor, and defender — is a member of the military chain of command.

    This editorial was published in the April 16, 2010 issue of the New Jersey Law Journal.  Copyright 2010. ALM Media Properties, LLC. All rights reserved.  Further duplication without permission is prohibited.

    Friday, April 16, 2010

    Federal Judicial Vacancies at 11%

    Carl Tobias (U Richmond) points out HERE in this week's National Law Journal that 11% of federal judicial seats are vacant.  Alliance for Justice spells it out.  Alliance for Justice
    UPDATED Details HERE
    129 Current and Future Vacancies
     102 Current Federal Court Vacancies:
     18 Court of Appeals ("CCA") Vacancies  
     84 District Court ("DCT") Vacancies
     0 Supreme Court ("SCT") Vacancies
     27 Future Federal Court Vacancies ("future" vacancies are those for which a judge has notified the president that he/she will leave active service on a specified, upcoming date):
     5 CCA Vacancies  

    Thursday, April 15, 2010

    Who rules?

    Californian Timothy Egan complains in today's Times that with the retirement of Justice Stevens every sitting member of the the U.S. Supreme Court will be a graduate not merely of the Ivy League but of Harvard or Yale.  Well at least they've gotten past the old Protestant prep school thing - what with six Catholics on the court - and one from a mere Diocesan High School in the Bronx.  

    Though I went to law school out of conference in Newark at Rutgers - the State University of New Jersey - I guess I should feel tribally connected at the lower levels of my education with:  Antonin Scalia (flunked the admission test for my high school Brooklyn Prep he told me) but got the same fare in Manhattan at Jesuit league rival Xavier.  
    My Patriot League Alma Mater produced one Justice - Clarence Thomas '91.  He went to  Holy Cross where he served for a time as a trustee.  And we can claim vicariously Chief Justice John Roberts whose wife Jane Sullivan Roberts is on the Holy Cross Board of Trustees.  Oh if only I had done as well on the LSAT as I did on the GRE maybe I would have gotten to go to Cambridge or New Haven, and been on somebody's short list.  Oh well.  My fault for not being more focused or smarter in more than one way.

    But it is not only the Supreme Court.  HERE is Lawrence Solum's  preliminary report on the law schools of new faculty hires:

    Yale 18
    Harvard 17
    NYU 8
    Columbia 5
    Virginia 5
    Berkeley 4
    Penn 4
    Chicago 3
    Michigan 3
    Stanford 3
    Doubtless every new young law school faculty member is smart, diligent, motivated, etc.   But it does leave one asking whether the swath of schools from which faculty is selected is too narrow, and the resumes (which usually evidence but a quick dip in the practice of law) too much resemble each other.  The hazard?  That law schools which are the basic training for the practice of law will continue to put on the top shelf those who have old school ties but little experience beyond that.  Self-replication is not limited to ribo-nucleic acid.

    Tuesday, April 13, 2010

    Prof. Jerome Cohen: Sage Advice to the PRC on the Hu Jia case

    This article appeared in the South China Morning Post on April 14, 2010 under the title, “Sage advice,” and in Chinese in the China Times.
    By Jerome Cohen
    The application for early release on medical grounds of the imprisoned activist-critic Hu Jia offers China’s leaders a golden opportunity to begin repairing their criminal justice system — the weakest link in their campaign to bolster the country’s “soft power”.
    The Chinese government wants the world to admire a “rising China” not only for its phenomenal economic accomplishments and growing military prowess but also for the quality of its civilization. Yet, no matter how many Confucius Institutes the government establishes abroad to teach Chinese language and culture, the People’s Republic will not win international respect for its political and social progress until it ceases locking up political dissidents and treats those currently detained in a more humane manner.
    Indeed, Confucius himself taught government officials to show benevolence and forgiveness in governing and administering punishment. Having recently resurrected the sage, China’s Communist Party leaders should follow this advice. Although many imprisoned Chinese writers are ill and lack medical care, the case of Hu Jia, 36-year old winner of Europe’s Sakharov Prize for Freedom of Thought, would be a good place to start.
    When they detained him in December 2007, claiming that his peaceful support for environmental reform, AIDS victims and political and civil rights had “incited subversion of state power”, police officials knew that Hu was suffering from cirrhosis of the liver. That diagnosis had been made shortly after his release from the 41-day “disappearance” to which police had subjected him in 2006. During that never formally-acknowledged confinement, police refused to accept from his wife, herself a human rights activist, the medication that Hu, a Hepatitis B victim, required. Consequently his health deteriorated markedly.
    Hu’s 2007 detention was a formal criminal procedure, and in April 2008 he was convicted and sentenced to imprisonment for three years and six months. Prison authorities initially permitted him to take medicine for his liver disease, but, when he developed a resistance to that medicine (as is common in such cases), they failed, contrary to China’s human rights treaty obligations, to provide any feasible alternative. Therefore, during the past fifteen months his health rapidly went further down hill.
    Finally, on March 30, 2010, legs shackled and hands chained, at Beijing’s central prison hospital he underwent tests to determine whether a growth detected on his liver had become cancerous. On April 7, while he was hospitalized, his wife and lawyer applied again for medical parole on his behalf. A previous application had been rejected last year. On April 12 the prison administration telephoned his family that he had been sent back to prison and that his condition was not cancerous and did not warrant medical parole. But the authorities refused to provide any written test results, leaving doubts about the accuracy and independence of the evaluation.

    Apparently, Hu will not be allowed examination by independent Beijing specialists, denying him internationally-required equal treatment with non-prisoners.
    Whether or not Hu has cancer, he should be released on medical parole for which he has long been eligible in accordance with Chinese law. While in prison, Hu is entitled to adequate medical treatment and accurate medical records based on international standards.
    If Hu is forced to remain in prison, without expert medical treatment and adequate diet and care, until his sentence is completed on June 26, 2011, his incurable liver cirrhosis may leave him permanently disabled, with limited capacity for even blogging. Could this be the Party’s game plan?
    The same question has to be asked about the treatment of other imprisoned human rights activists, such as the blind “barefoot lawyer”, Chen Guangcheng, who is nearing the end of his three years and four months sentence. Is the denial of adequate medical attention to the long-term, debilitating diarrhea that he has experienced in confinement designed to disable him from post-prison activism?
    China’s political-legal officials have long experimented with a range of methods for repressing “rights lawyers” and dissidents. In many cases, low visibility harassment, including threats, illegal house arrest, loss of employment, repeated brief detentions and beatings, have proved effective. Yet, even after enduring prison or the lengthy administrative confinement of “reeducation through labor”, some activists persist in trying to reform the political and legal systems.
    It is unclear, for example, whether a month in police custody followed by a year of restricted freedom on bail will subdue the distinguished scholar-reformer Xu Zhiyong. Even three years in prison have not deterred the admirable but disbarred Shanghai lawyer, Zheng Enchong, who continues to try to break out of his illegal post-prison house arrest. And it is too soon to foresee whether the terrible torture and long-term confinement in humiliating and inhumane conditions that the recently-reappeared former lawyer Gao Zhisheng has suffered will silence him; his spirits, according to those who have seen him, are largely undiminished.
    Thus, although Confucius emphasized that excessive harshness breeds grievances, a leadership obsessed with achieving “stability” at all costs might be attracted to the “solution” of physically disabling “obstinate” activists.
    Is this too cynical a speculation? I hope so. Surely such cruelty would violate international law and be a long way from the humanitarianism of Confucius and genuine “soft power”.
    Jerome A.Cohen is co-director of the New York University School of Law’s U.S.-Asia Law Institute and adjunct senior fellow for Asia at the Council on Foreign Relations.  See also

    What Justice Stevens stood for

    What Justice Stevens stood for
    By Robert A. Schapiro, Special to CNN
    April 12, 2010 4:49 p.m. EDT

    Editor's note: Robert Schapiro is a professor of law at Emory University School of Law and the author of "Polyphonic Federalism: Toward the Protection of Fundamental Rights" (University of Chicago Press, 2009). He served as a clerk for Justice Stevens in 1991-1992.

    (CNN) -- With the retirement of Justice John Paul Stevens, the United States Supreme Court loses a judge with an unusual ability to get the big things right by getting the little things right.

    Justice Stevens will be remembered for his stirring opinions in cases of great national significance. He also should be remembered for his equally compelling commitment to justice in scores of other decisions that received little public notice.

    In Hamdan v. Rumsfeld in 2006, Stevens wrote the majority opinion holding that even in the face of real threats of terror, the president must follow the law. The court declared that the Constitution reached into a military detention facility in Guantanamo Bay, Cuba, and offered the protection of the rule of law to the man who served as the driver for Osama bin Laden.
    For Stevens, no person was above the law, and no person was below the law.
    Stevens' passion for this ideal drew support from his experience as a clerk to Supreme Court Justice Wiley Rutledge. In 1946, the Supreme Court upheld the summary trial and the death sentence meted out by an American military tribunal to accused Japanese war criminal Tomoyuki Yamashita. Dissenting, Rutledge affirmed the importance of providing "due process of law" to all people, "whether citizens, aliens, alien enemies or enemy belligerents." In Hamdan, Stevens finally vindicated that principle 60 years later.

    For Stevens, that dedication to ensuring justice in all cases constituted the defining characteristic of a judge. In the 2000 presidential election decision, Bush v. Gore, Stevens penned a stinging dissent, castigating the majority for undermining the "Nation's confidence in the judge as an impartial guardian of the rule of law."

    Stevens' commitment to the rule of law transcended partisan boundaries. In 1997, he spoke for the Court in Clinton v. Jones, finding that the Constitution did not shield President Clinton with immunity from civil suits.
    First appointed to the bench by President Nixon and then elevated to the high court by President Ford, Stevens was a Republican from a different era. His rulings fell out of favor with the ideology of that party. However, Stevens always remained a small-R republican. He detested the idea of a monarch who stood outside of the law.

    He often cited the English maxim, "The King can do no wrong," to emphasize the foreignness of that concept of immunity in our republican form of government.

    Cases involving presidents are important, but rare. Stevens insisted on promoting the rule of law in all cases. When I think about Stevens, I think not only of Bush and Gore, of Clinton and Rumsfeld, but also of Vladimir Zatko and Jerome Hiersche.

    It is a bedrock principle of the American legal system that lack of wealth should not translate into a denial of justice. Accordingly, courts do not charge filing fees to those who cannot afford to pay. In the early 1990s, however, the Supreme Court deviated from that practice by barring access to people it deemed frequent filers of frivolous actions. The court refused to waive the fees for these litigants despite their poverty.

    When the court invoked the rule to bar access to one Vladimir Zatko, Stevens dissented. His opinion criticized the court for undermining its commitment to offering "equal access to justice for both the rich and the poor." The court continues to invoke the rule up to this day, and Stevens continues to dissent.
    And then there is the tragic case of Jerome Hiersche. The United States government hired Hiersche, a professional diver, to inspect a dam on the Columbia River. Government employees assured Hiersche that the water flow system would be shut off, but it was not. Hiersche's head was pulled into an opening in the system, and he was killed.

    The government denied all liability, citing language in a Supreme Court case interpreting an obscure provision of a 1928 statute. Stevens wrote separately to decry this result, imploring Congress to remedy the situation. He declared that "this obsolete legislative remnant is nothing more than an engine of injustice." In his lexicon, there was no stronger rebuke.

    The rule of law requires standing up to presidents, but it also demands standing up for the notorious and the nameless, the Hamdans and the Yamashitas, the Zatkos and the Hiersches. When one develops a habit of promoting justice in the obscure cases, the courage to demand justice in the notable cases follows.

    Justice Stevens pursued justice in all cases, great and small. The rule of law has lost an important champion on our nation's highest court.
    The opinions expressed in this commentary are solely those of Robert Schapiro.

    Thanks to for the tip

    Monday, April 12, 2010

    UMW leader Rich Trumka on anger and the economy

    9.7% is the conservatively stated unemployment rate.  Underemployment 16%.  African American 16.5%.  African-American teenagers 40%.  All teenagers 24%.

    Rich Trumka, the President of the United Mineworkers of America,  on the vitriol of today's public discourse, the difference between hate and anger, the complacency of the affluent and the duty of public intellectuals to build a sustainable high wage economy.

    At the Kennedy School of government, Institute of Politics:

    Thanks to James Fallows for the tip.

    Friday, April 9, 2010

    Dawn Johnsen - candor's price is withdrawal

    Dawn Johnsen withdrew today as nominee to head up the Justice Department's Office of Legal Counsel.  Her nomination was blocked for a year by the Republican minority.  They found it intolerable that the leader of the Office -which provides constitutional law advice to the President - and was the source of the notorious "torture memos" should be headed by an Indiana law professor who said in a Slate column:
    Here is a partial answer to my own question of how should we behave, directed especially to the next president and members of his or her administration but also to all of use who will be relieved by the change: We must avoid any temptation simply to move on. We must instead be honest with ourselves and the world as we condemn our nation's past transgressions and reject Bush's corruption of our American ideals. Our constitutional democracy cannot survive with a government shrouded in secrecy, nor can our nation's honor be restored without full disclosure.

    Thursday, April 8, 2010

    Ground Zero respiratory claims: Lung Function After Seven Years

    Graph above: Abnormal Lung Function in Firefighters and Emergency-Medical-Services (EMS) Personnel Who Had Never Lung Function in Firefighters and Emergency-Medical-Services (EMS) Personnel Who Had Never Smoked and Who Worked at the World Trade Center Site during the First 2 Weeks after 9/11

    Three years ago in Will the Post 9/11 World be a Post-Tort World? I wrote:
    At the site of the attacks in New York enormous effort followed— first in the nearly fruitless search for survivors, then for the recovery of remains of the dead, and finally in removal of the debris of the fallen towers. In the wake of the catastrophe came labor, dust, and disease.  We are witnessing the unfolding of an epidemic of industrial disease that evokes the historical epidemics of silicosis, asbestosis, and cancer.
    Today we are learning of the epidemic of industrial illness at Ground Zero from Dr. Irving Selikoff’s successor at Mt. Sinai School of Medicine in New York. Dr. Philip Landrigan informed us in 2002 that the attack on the World Trade Center on September 11, 2001 was not only the worst assault on the American homeland in the 225-year history of the United States:
    "It was also the most massive acute environmental disaster that ever has befallen New York City. The destruction of the twin towers released thousands of tons of toxic materials into the air of lower Manhattan—asbestos, particulate matter, lead, soot, PCBs, and dioxins. Workers and children were the groups at greatest risk of exposure."  Philip J. Landrigan, Lessons Learned: Worker Health and Safety Since September 11, 2001, 42 AMERICAN J. IND.MED. 530-31 (2002)
     It was possible then to hope that the early results would not predict the long term.  But today we have learned the sad news - from the WTC Medical Monitoring Program of the New York City Fire Department - that the researchers and health care personnel at Albert Einstein College of Medicine have concluded:
    Exposure to World Trade Center dust led to large declines in FEV1 for FDNY rescue workers during the first year. Overall, these declines were persistent, without recovery over the next 6 years, leaving a substantial proportion of workers with abnormal lung function.
    FEV1 - forced expiratory volume at 1 Second - is a key measure of lung function.  The news is disheartening.   Aldrich, et al., Lung Function in Rescue Workers at the World Trade Center After 7 Years, New England Journal of Medicine, April 8, 2010 vol. 362 no. 14.

    We can only hope that Judge Alvin K. Hellerstein, who has labored heroically on the World Trade Center catastrophe litigation, will soon complete the work of cobbling together a settlement that recognizes the wrongfulness of the conduct of the City of New York which slighted workers health and safety as it urged them on as heroes engaged in the grim efforts to rescue the few survivors and to put out the fires which smoldered at the sit of the fallen towers.

    Tuesday, April 6, 2010

    Book Review: John Brown's Trial

    Book Review: The Charge Was Treason — The Trial of John Brown
    reviewed by George Conk

    John Brown’s Trial by Brian McGinty.  Harvard University Press, 2009.  384 pp. $27.85
    That in all capital or criminal prosecutions a man hath a right to demand the cause and nature of his accusation, to be confronted with the accusers and witnesses, to call for evidence in his favor, and to a speedy trial by an impartial jury of twelve men of his vicinage, without whose unanimous consent he cannot be found guilty; nor can he be compelled to give evidence against himself; that no man be deprived of his liberty, except by the law of the land or the judgment of his peers.
    § 8 The Bill of Rights, Constitution of the Commonwealth of Virginia, June 12, 1776
    Now when many believe it is weakness to treat as criminals those who attacked us on September 11, 2001 Brian McGinty’s John Brown’s Trial is a timely arrival.  His compelling narrative shows Virginia thought it had something to prove by both the swiftness and the propriety of the trial and prosecution that began eight days after the anti-slavery warrior’s capture and ended forty seven days later with Brown’s death by public hanging on December 2, 1859.  Yet Virginia afforded a trial by jury, and Brown was represented by appointed lawyers, slaveholders who diligently advocated for the leader of a cause they deplored......

    for the review published at Concurring Opinions click on the LARGE TYPE italicized title above.

    Thanks to Concurring Opinions and editor Dan Solove.

    Posted using ShareThis

    Monday, April 5, 2010

    The Millstone: America - Jesuit weekly editorializes on the Church's crisis

    the cover of America, the Catholic magazine
    For 25 years National Catholic Reporter has been editorializing and reporting on the inadequacy of the Church hierarchy's response to sexual abuse by priests.  Slowly under relentless pressure the American Church responded.  Now the same grim pattern has emerged in Europe.  First in Ireland and now in Germany, engulfing the Pope's own episcopacy in Germany in the familiar pattern of denial, minimization, and evasion.  This past - Easter - weekend featured some particularly galling Roman responses - like the one about how the criticism of priests resembles anti-semitism in its assertions of guilt by association.

    This week's issue of America, the Jesuit magazine, has a strong editorial, which begins

    The shame associated with the abuse of children by Catholic priests is borne these days by all Catholics forced to explain to incredulous friends and acquaintances how this could have happened, how it could have gone on so long, how it could have been allowed to become so extensive—questions that still require a proper answer. Like a millstone around our necks, the scandal, year after endless year, drags us all down with it. How the church as the people of God respond to it should not be a question of loyalty to the pope nor even more demands for his resignation; it is a matter of restoring the church’s integrity as an institution and renewing the life of holiness for its members. It is a matter of corporate conversion.
    It is clear we are no longer dealing with an “American problem.” We never were. This is a global crisis that requires a church-wide strategy. The whole church—from parish to diocese to Roman Curia—needs to respond with the resources and the urgency it demands. Cardinal Walter Kasper, head of the Pontifical Council for Promoting Christian Unity, argues it is time for a thorough housecleaning. “We need a culture of alertness and bravery,” he said, “to do the housework,” and we must begin with caring for the victims.

    The balance of the editorial is HERE

    America - Jesuit weekly faults bishops' conference on health care reform bill

    Technicalities and hypotheticals weighed more than health care for all in the U.S. Conference of Catholic Bishops analysis leading them to oppose passage of the health care reform bill last month, say the editors of America, the Jesuit weekly magazine in an editorial HERE. Thanks to ReligiousLefltlaw blog.  Fortunately Catholic legislators gave more weight to facts as did the nuns whose support was important to passage.
    Image: Congressman Bart Stupak (D-MI)

    Facing facts: Gen. McChrystal acknowledges many Afghans killed by undisciplined U.S. troops

    The New York Times reports what many of us have long suspected and Afghans have long believed - fearful U.S. troops have caused many unnecessary deaths because they fail to identify who is actually a threat.  So it's sometimes shoot first, ask too few questions later.  The interview is with Stanley A. McChrystal - senior commander of U.s. and NATO forces in Afghanistan.

    Q: "On Escalation of force, have you considered engaging the local community on the issue? We could explain at the brigade/battalion level what behavior we find threatening, and how we are trained to react when we feel threatened. We could negotiate with the community leaders over mutually agreeable actions and reactions that are better understood by both and gives part ownership of the issue to the community and empowers them in line with our approach to reintegration."
    GEN McChrystal: "That's a great point. I don't know if we have, but we certainly ought to be doing that. We have so many escalation of force issues, and someone gets hurt in the process, and we say, 'They didn't respond like they were supposed to.' Well, they may not have known how they were supposed to respond, so as they approached an area or checkpoint or whatever, they may have taken actions that seemed appropriate to them, and when a warning shot was fired they may have panicked. I think this is a great thing to do, to engage people and tell them the kind of behavior on their part that would lower the chance that they would run into problems.
    "I do want to say something that everyone understands. We really ask a lot of our young service people out on the checkpoints because there's danger, they're asked to make very rapid decisions in often very unclear situations. However, to my knowledge, in the nine-plus months I've been here, not a single case where we have engaged in an escalation of force incident and hurt someone has it turned out that the vehicle had a suicide bomb or weapons in it and, in many cases, had families in it. That doesn't mean I'm criticizing the people who are executing. I'm just giving you perspective. We've shot an amazing number of people and killed a number and, to my knowledge, none has proven to have been a real threat to the force."