Which side are you on? Jeff Sessions says "not Thurgood Marshall's"

There is a divide in this country - a social divide that is not a partisan divide.  It is your answer to the labor and civil rights movement ballad's rhetorical question "Which side are you on?" For the judges who are my heroes the answer in the 1950's was The Union's - the union that Abraham Lincoln's leadership saved.  Among the most devout judicial adherents of the Union  were the Republican judges of the U.S. Court of Appeals for the Fifth Circuit - in the states of the defeated Confederacy.  After Brown v. Board of Education judges of the party of Lincoln like John Minor Wisdom and his colleagues dismantled the legal structure of segregation - Jim Crow.


Thurgood Marshall led the NAACP Legal Defense and Education Fund, Inc. which devised and implemented the successful strategy.  Its beginnings may be traced to Shelley v. Kraemer - the 1948 case argued by Marshall in which the Supreme Court declared unenforceable a deed restriction that barred sale of land to anyone other than a Caucasian.  Its greatest victory was, of course, Brown v. Board of Education of Topeka, Kansas (1954).

So it is with regret that I hear today's Republican Senators take a cut at Elena Kagan for her association with the late, great man - Justice Marshall.   Ranking Member Senator Jeff Sessions (R-Mississippi) complained today, in his opening statement at the Kagan Supreme Court confirmation hearings:

"Importantly, throughout her career, Ms. Kagan has associated herself with well-known activist judges who use their power to redefine the meaning of the words of our Constitution and laws in ways that, not surprisingly, have the result of advancing the judge’s preferred social policies for the country.

She clerked for Judge Mikva and Justice Marshall, each a well-known liberal activist judge. And she has called Israeli Judge Aharon Barak - who has been described as the most activist judge in the world- her hero.These judges don’t deny activism; they advocate it. And they openly oppose the idea of a judge as a neutral umpire."
Marshall's activism is the pride of  the Supreme Court, in my view, and that of all of us who knew the correct answer to the question "which side are you on?"

NJ: Eye-witness ID Special Master Urges Stricter Scrutiny of Testimony

 Image: Geoffrey Gaulkin
Last year the New Jersey Supreme Court, in State v. Henderson, remanded the eye-witness identification case "for a hearing to consider and decide whether the assumptions and other factors reflected in the two-part Manson/Madison test, as well as the five factors outlined in those cases to determine reliability, remain valid and appropriate in light of recent scientific and other evidence."  


In State v. Madison 109 NJ 223 (1988) the court had held 

• [A] court must first decide whether the procedure in question was in fact impermissibly suggestive. If the court does find the procedure impermissibly suggestive, it must then decide whether the objectionable procedure resulted in a “very substantial likelihood of irreparable misidentification.”

The test was an open door for flimsy testimony.  The New Jersey Supreme Court was in the vanguard of courts who paid heightened attention to the need to assure that scientific expert testimony was based on "sound methods", but as Michael Risinger showed, the post-Daubert stiffening of judicial attitudes to scientific evidence stopped at the prosecutor's door.  


The test’s high barrier (proof of undue suggestiveness by police) left the door open wide for unreliable testimony testimony.  In recent years the problem has been highlighted by The Innocence Project.  Their data shows that as of May 13, 2010, 254 wrongfully convicted persons had been exculpated by DNA evidence; 75% of those convictions involved erroneous eyewitness identifications. [ See Innocence Project, Facts on Post-Conviction DNA  Exonerations, www.innocenceproject.org/Content/Facts_on_
PostConviction_DNA_Exonerations.php]


Persistence by New Jersey's Public Defender and its allies has paid off.  The Supreme Court appointed retired Appellate Division judge Geoffrey Gaulkin as special master.   He conducted a seminar, in which the Public Defender, aided by the Innocence Project and the Association of Criminal Defense Lawyers, and Prof. Risinger as amicus,  presented social science evidence about the weaknesses of eyewitness identification evidence.


Gaulkin's report to the Supreme Court systematically reviews the scientific evidence, rejects the prosecutor's stand-pat approach, and urges the high court to adopt a key remedy - - shifting the burden to the party offering the evidence:

First, it would be both appropriate and useful for the courts to handle eyewitness identifications in the same manner they handle physical trace evidence and scientific evidence, by placing at least an initial burden on the prosecution to produce, at a pretrial hearing, evidence of the reliability of the evidence. Such a procedure would broaden the reliability inquiry beyond police misconduct to evaluate memory as fragile, difficult to verify and subject to contamination from initial encoding to ultimate reporting.

Civil and criminal standards are brought into parity by Gaulkin's approach because the focus is on reliability - without the barrier of showing impermissible suggestiveness.  We now await the New Jersey Supreme Court's response.


The Gaulkin report is HERE.

N.J. Supreme Court: Should we adopt Massachusetts RPC 1.6 (b): lawyer may reveal confidences “to prevent wrongful execution or incarceration”?

The New Jersey Supreme Court’s Professional Responsibility Rules Committee has informed members of the bar that the Supreme Court has asked the Committee:

Should an attorney be required to maintain the confidentiality of information relating the representation of a client where the information demonstrates that an innocent person has been wrongly convicted of a crime with significant penal consequences?

New Jersey RPC 1.6 (b) Confidentiality of Information currently provides

(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:

(1) to prevent reasonably certain death or substantial bodily harm

The Court has directed the Committee’s attention to Mass Jud. Ct. R. 3:07, which provides, in Massachusetts RPC 1.6 (b)(1)

A lawyer may “reveal . . . [confidential information relating to the representation of a client] . . . to prevent the wrongful execution or incarceration of another.”

The Committee has invited the state’s bar associations to comment on the suggestion by August 13, 2010.

Failure of Rig’s Last Line of Defense Tied to Myriad Factors - NYTimes.com

Most mechanical design defect cases end up like the Challenger inquiry. Richard Feynmann, playing with a rubber ring in a glass of ice water, showed how obvious was the problem with the rubber O-rings that failed, leaking fuel, bringing destruction to the craft and crew.  Pride is, of course, the first sin.  And plenty of that is available for review on the Deepwater Horizon.   It lies behind all the big screw-ups - usually because the underestimation of human frailty is aggravated by cupidity.

The New York Times team here presents the story of the single valve which had to work to cut off the flow of oil when things went wrong.  There was no alternative, there was no back-up and failure was an option.  How many people knew?  Lots.  Who were they?  Everybody who looked at it.  The Times' video graphic of the failed "shear ram" is particularly compelling.
Failure of Rig’s Last Line of Defense Tied to Myriad Factors - NYTimes.com

Dutch treat: Sarah Palin - puts a finger in the dike

Welcome to the fact free zone.  When you don't know anything raise your voice and get mad.

Who's the fairest of them all? Kenneth Feinberg and the Spill Compensation Fund

President Obama announced today that the $20 billion BP compensation fund will be administered by Kenneth Feinberg - the administrator of the September 11 Victims Compensation Fund fors which he did an admirable job as I observed in my article Will the post 9/11 World be a Post-Tort World (qualified NO).  Of course more recently he has been the "pay czar" - a term he spurns - for companies which received TARP `bailout' funds.  And he is designated the "allocation neutral" for those in the 9/11 clean-up mass tort settlement.


Today Richard Epstein, who my late friend Lousie Halper called "the greatest legal thinker of the 19th century" presented in the Wall Street Journal a robust defense of un-capped strict tort liability for dangerous activities - like drilling 5,000 feet below the surface of the sea.  Epstein says:

The legal system should never allow self-interested parties to keep for themselves all the gains from dangerous activities that unilaterally impose losses on others—which is why the most devout defender of laissez-faire must insist, not just concede, that tough medicine is needed in these cases. The fundamental question here is one of technique: What mix of before and after sanctions will do the job at the lowest cost?

He is right, of course, about tort.  It is a straight forward system of assessing liability based both on fault and on unilaterally (but without fault) imposing losses on others from which they have a right to be free.  The line-drawing problems are great but the general principles are plain enough.

Why Maine - not Louisiana - is the way life should be

It's not just the sweltering summer heat that keeps us from vacationing on the beautiful and shrinking salt marshes of Louisiana and the Mississippi Delta.  It's the absence of natural gas pipelines on the rock-bound coast of Maine.  Map courtesy of Talking Points Memo.

Effective counsel for deportees - NJ Law Journal Editorial Bd. Lauds 2d Circuit Cerna Decision

Effective Counsel for Immigrants

New Jersey Law Journal

June 11, 2010

For the second time this spring, a federal court has advanced the principle of effective assistance of counsel in deportation proceedings. Second Circuit Judge Robert Katzmann's opinion in Cerna v. United States , finding a potential due process violation in a lawyer's lax conduct, comes just four weeks after the U.S. Supreme Court, in Padilla v. United States, reversed a criminal conviction, noting the lawyer's neglect and emphasizing the "severity of deportation" — "the equivalent of banishment or exile."

The balance of the editorial is HERE

Gov. Christie, responding to mass resignation, fills vacant NJ Judicial Advisory Panel

Images: Peter Verniero, Stuart Rabner


Chris Christie, the combative recently-elected Governor of New Jersey, has suffered a series of rebukes by lawyers and judges.  His seven member Judicial Advisory Panel  - including four former justices of the state Supreme Court - resigned en masse.   Last month eight former justices of the state Supreme Court  renounced Christie's refusal to nominate for tenure Associate Justice John Wallace. A career judge, Wallace had served with undisputed competence at every level of the judiciary - Municipal Court, Superior Court, Appellate Division, and Supreme Court.  


The move was unprecedented in New Jersey.  In the past sixty years no judge had been - on ideological grounds - refused nomination for tenure after the initial seven year term.  Christie - citing the need to reverse the legacy of "judicial activisim" appointed a novice in Wallace's place.


Now Christie has enlisted a new panel.  It includes former Associate Justice and AG Peter Verniero, Richard Badolato - a former State Bar Association President, and Rosemary Alito of KL Gates an employment lawyer who is Chairman of the Editorial Board of the state's legal weekly - the New Jersey Law Journal.  According to Executive Orders 32 and 36 creating  the Panel the seven will recommend trial court candidates to the Governor.  The predominantly Republican panel will help to reduce Christie's isolation in the legal community which greeted Wallace with a two minute standing ovation at last week's State Bar Association convention, where they heard Wallace lauded by Chief Justice Stuart Rabner.


Verniero, et al. can be relied upon to identify competent candidates.  What the Panel members cannot do is assure prospective nominees that competence, rather than politics, will determine whether their judicial careers will extend beyond the seven year initial term.  


Except for those coming from government service, judges often sacrifice the security of partnerships and solo or small firm private practices to take the bench.  Judicial pensions vest after ten years.  Candidates seeking that security will spend the first seven looking over their shoulders at the present - and future - Governor's likes and dislikes.  The use of political litmus tests may well reduce the number and quality of lawyers who seek judicial appointments.

Daily Show: Chinese Communists infiltrate our schools

Spread the word.  The Chinese are coming!

The Daily Show With Jon Stewart	Mon - Thurs 11p / 10c
Socialism Studies
www.thedailyshow.com
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The Torture Reports: Physicians for Human rights

Just as George W. Bush emerged to re-ignite public debate with his embrace of waterboarding as something we did to "save lives" Physicians for Human Rights concludes, in The Torture Reports:

`Evidence Indicates that the Bush Administration Conducted Experiments and Research on Detainees to Design Torture Techniques and Create Legal Cover'.  
The abstract: "Health professionals working for and on behalf of the CIA monitored the interrogations of detainees, collected and analyzed the results of those interrogations, and sought to derive generalizable inferences to be applied to subsequent interrogations. Such acts may be seen as the conduct of research and experimentation by health professionals on prisoners, which could violate accepted standards of medical ethics, as well as domestic and international law. These practices could, in some cases, constitute war crimes and crimes against humanity."


Update: The New York Times editorializes that the participation of health professionals in titrating doses and changing the material (e.g. from water to saline) could well be understood as aiding and abetting torture.

"It is a Constitution we are interpreting"... Justice David Souter’s speech at Harvard Commencement

John Roberts' canon - a judge calls "balls and strikes" - and the  recitation of that unrealistic umpire metaphor by Sonia Sotomayor last summer - have increased cynicism about the Senate's judicial confirmation process, which has come to be a subjugation ritual where ripe fruit is desiccated, as Heather Gerken observed. Some fear a similarly bloodless accommodation by Elena Kagan.

Now comes the normally reticent Justice David Souter who delivered a lucid address at Harvard's Commencement last week. It is a guide not only to Constitutional interpretation but, with a little extension, for all who must apply general principles - like those of tort's "reasonable conduct in the circumstances" - to particular cases.

A link to the complete text is below, but here is what I think is the key thematic statement:

A choice may have to be made, not because language is vague, but because the Constitution embodies the desire of the American people, like most people, to have things both ways. We want order and security, and we want liberty. And we want not only liberty but equality as well. These paired desires of ours can clash, and when they do a court is forced to choose between them, between one constitutional good and another one. The court has to decide which of our approved desires has the better claim, right here, right now, and a court has to do more than read fairly when it makes this kind of choice.

Text of Justice David Souter’s speech | Harvard Gazette Online

ABA & Others Object to Sweeping Law Practice Regulation in Financial Reform Bill - News - ABA Journal

ABA & Others Object to Sweeping Law Practice Regulation in Financial Reform Bill - News - ABA Journal

NJ: All 7 members of Governor's Judicial Advisory Committee Resign

The New Jersey Constitution empowers governors to choose who to appoint to the Supreme Court and whom to nominate for tenure after the initial 7 year term. But no governor had conditioned tenure on ideological grounds until Governor Chris Christie, complaining about "judicial activism", refused to propose for tenure Associate Justice John Wallace.  for the past two months this break with tradition has provoked a storm in the state's legal community, as the Star Ledger reports.

Concerned that the message to toe-the-line would interfere dangerously with the independence of trial judges, the Governor's Advisory Council on Judicial Appointments has resigned en masse.
"Because of our abiding commitment to the independence of the judiciary, we cannot in good conscience continue to serve," wrote retired Chief Justice Deborah Poritz; retired Associate Justices Alan Handler, Stewart Pollock and James Coleman Jr.; Susan Lederman, a public administration professor at Kean University, and Carlos Ortiz, general counsel of Goya Foods.

New Jersey's judiciary is entirely appointive.  Governors nominate subject to the Senate's advice and consent for a seven year term, after which the process is repeated and tenure granted until the mandatory retirement age of seventy.   The six signers wrote "The panel has understood a judge serving honorably and effectively, with competence and integrity, will achieve tenure in judicial office."   But the Governor has a"profoundly different view of the governor's appointive responsibilities," they added. "This was exemplified by your actions and remarks in refusing to reappoint Justice John Wallace to the Supreme Court, a jurist who indisputably exemplified all qualifications for honorable service."

As the New Jersey Law Journal   account observes

For the four ex-justices on the panel, the resignation letter was a reprise of criticism they made in May along with four other former state Supreme Court jurists. The eight broke with the tradition of reticence among retired justices and denounced Christie's decision not to reappoint Wallace.

Four of the signers are among the eight retired Justices of the state Supreme Court who protested Christie's refusl to nominate Wallace for tenure.  The State Senate has said it will not take up the nomination of Anne Patterson, the proposed replacement, until Wallace's 70th birthday - 22 months from now.
Images: Christie, Patterson, Wallace

Law, Order, and Baseball: Perfect Game, Bad Call, Perfect Gentleman

Perfect game.  Gross error, as the camera shows.

Armando Galaragga, victim of the bad call, lost what should have been his: the 21st perfect game ever thrown in the major leagues.  The next day Galaragga brought out the card to Jim Joyce, who was plate umpire for the next afternoon's game.

Kagan pained by B minus in torts

I got a C in Property - that hurt, but I didn't believe in property at the time.  I got a C plus in legal history - which sort of hurt because I had a masters in history/political science.  But it is true that my paper on the defense of Gracchus Babeuf, leader of the Conspiracy of Equals (executed 1797) lacked any critical element beyond Wow! 

Even though back in the day a gentleman's C was really OK [ John Kerry ( a national debate champion) graduated from Yale with a 77 average; George W. Bush a 78 average]  I suspect that Elena Kagan, being a lot younger and in a more "competitive" age,  really was pained by that B minus in torts in her first year at Harvard Law.