Friday, July 23, 2010

Inventor's Angst over "painless execution"

Angst over painless executionYang Hui was traumatized when as a boy he witnessed a public execution.  The man was shot in the head struggled to rise and shot again.  Years later he designed a lethal injection pump.  It does not meet the goal of death within 30 seconds.  He yearns for an end to the death penalty.  As the National Peoples Congress meets he is profiled by China Daily.
Angst over painless execution

China Legislature will reduce capital offenses

The National Peoples Congress will act to reduce the number of capital offenses, China Daily reports. No details yet but it appears that non-violent capital offenses will be reduced. One has to wonder about dramatic governmental corruption - such as the execution for bribery of the chief of the drug regulation agency.
China mulls to cut down executions

Daniel Schorr, A Man for All Seasons

Daniel Schorr was the best writer in American journalism for 50 years.  Because little was in print that was too little noted.  His 450 word commentaries on NPR were cut diamonds, beginning with a dramatic opening sentence, followed by This is Daniel Schorr.    He was a hero of American journalism bar none in the Post-War era.  I read the Times obit  below in awe at the story of a man whose career I wrongly assumed I knew.   

At CBS, Mr. Schorr won three Emmy Awards for his coverage of the Watergate scandal and took pride in his often blunt reporting on the administration. In one instance he hurriedly began broadcasting after acquiring a copy of Nixon’s notorious “enemies list” only to discover in reading the names aloud that his was No. 17.
Daniel Schorr, Aggressive Journalist, Dies at 93 - Obituary (Obit) -

Monday, July 19, 2010

Stimulus: Shanghai-Nanjing intercity railway starts operation

This is the equivalent - geographically and economically and ecologically of a high speed rail line between New York City and Boston. 73 minutes by rail! And it is not a test-case. There is already such a link from Wuhan to Guangzhou (like Miami to Chicago) and the Beijing to Shanghai link is about to start track laying.
Shanghai-Nanjing intercity railway starts operation

Financial Reform Act

I haven't studied it.  But here it is.

Saturday, July 17, 2010

Rory Stewart: Why Debate the War?: The Real Reason We Are in Afghanistan

Rory Stewart
Rory Stewart, M.P. (Conservative)
for Penrith & The Border
Why Debate the War?: The Real Reason We Are in Afghanistan
European countries feel trapped by their relationship with NATO and the United States. Holbrooke and Obama feel trapped by the position of American generals. And everyone -- politicians, generals, diplomats and journalist -- feels trapped by our grand theories and beset by the guilt of having already lost over a thousand NATO lives, spent a hundred billion dollars and made a number of promises to Afghans and the West which we are unlikely to be able to keep.....

Friday, July 16, 2010

The Assault on the Citadel: Yale & Harvard take the Supreme Court

Back in the days of the "gentleman's C"  Harvard and Yale were the cool colleges.  Ivy League and Preppie were the fashion models of my youth.  But in the days before US New & World Report, before college rankings, the choice of a college was a kind of local, or family, or ethnic thing.  Harvard took 100/year from Boston Latin and filled most of the remaining slots with New England prep schools and legacy admits.  I applied only  to Catholic schools -  Georgetown, Holy Cross, BC, Notre Dame, with Villanova as a safety school.  Harvard and Yale weren't in my field of vision: except as rivals on the athletic field - then, as now.  The choice of college did not seem very consequential. That was then.  But now that we see the domination of the Supreme Court we see another bit of evidence of how consequential these choices have become.

But is there more to it than the fact that in the last 24 years when the duopoly was established three Presidents have been Yale men and the current one a Harvard man?  The data is in Patrick Glen's paper Harvard and Yale Ascendant: The LegalEducation of the Justices from Holmes to Kagan.  The judgments are for you to make.

DESCRIPTION h/t Catherine Rampell, Economix, NY Times

Monday, July 12, 2010

Chinese hip hop - it's time to learn Chinese

My hero James Fallows  is knowledgeable and skillful about so many things: he writes (1981 American Book Award for The National Defense), he flies, he talks politics with Guy Raz every Saturday on NPR, and blogs for The Atlantic about all of the above,  plus software (he designed for Microsoft) , rhetoric (he wrote speeches for Jimmy Carter), China and Chinese language study. [He likes, I like Jenny Zhu, John, Ken, Connie, Lilliana  and the crew at

Today Fallows  posted this wonderful Chinese hip hop video Zhong Guo Hua 中国话 (Chinese language)。  It celebrates the fact that so many people are learning Chinese (see text below the video).  The director must have spent a lot of time at the Times Square subway station to pick up all these hip hop dance and gymnastics moves and rhythms.  You would look a long time to find Americans who could mimic and spoof so well any Chinese cultural quirks.

ɡè   zhǒnɡ   yán   sè   de   pí   fū   ɡè   zhǒnɡ   yán   sè   de   tóu   fɑ 
各 种 颜 色 的 皮 肤 各 种 颜 色 的 头 发 (People with skin of all colours, people with hair of all colours)

zuǐ   lǐ   niàn   de   shuō   de   kāi   shǐ   liú   xínɡ   zhōnɡ   ɡuó   huà 
嘴 里 念 的 说 的 开 始 流 行 中 国 话 (They speak the increasingly popular Chinese language. ) 

duō   shǎo   nián   wǒ   men   kǔ   liàn   yīnɡ   wén   fā   yīn   hé   wén   fǎ 
多 少 年 我 们 苦 练 英 文 发 音 和 文 法 (For how many years have we slaved away at English pronunciation and grammar) 

zhè   jǐ   nián   huàn   tā   men   juǎn   zhe   shé   tou   xué   pínɡ   shànɡ   qù   rù   de   biàn   huà 
这 几 年 换 他 们 卷 着 舌 头 学 平 上 去 入 的 变 化 (These few years, it's their turn to learn how to roll their tongues and learn the different intonations.) ...

hǎo   cōnɡ   mínɡ   de   zhōnɡ   ɡuó   rén   hǎo   yōu   měi   de   zhōnɡ   ɡuó   huà
好 聪 明 的 中 国 人 好 优 美 的 中 国 话 (The Chinese are such smart people, and the Chinese language is so beautiful)
扁 担 想 绑 在 板 凳 上

Sunday, July 11, 2010

Florida Appellate Court Denies PD's Withdrawal Motion Based on Excessive Caseload

The ethical dilemmas posed by under-funding of public defenders have been the subject of much attention, as in the New York CLU's challenge.  The bold efforts of  Miami-Dade's elected public defender have gotten a lot of attention. On May 10 the Florida Supreme Court accepted jurisdiction of the PD's systemic challenge and established a briefing schedule.  Argument is expected in the fall. (excessive caseload litigation files here)  

In Florida v. Bowen   the trial judge allowed a PD to withdraw from an individual case due to excessive caseload.  The dilemma is created by the violation of the client's right to a speedy trial and the inability to obtain substitute counsel.  Now an intermediate court of appeals has reversed.  Robert Boruchowitz, Professor from Practice at Seattle University reports at Crim Law Prof blog.

Saturday, July 10, 2010

The bursting of the pedigree bubble - William Henderson

Indiana Law Professor William Henderson is an empiricist.  He likes to have measurable data.  When I was a graduate student in the political science department at Boston University I had no interest in the "science" part of the field.  Their data was too sparse, their hypotheses narrowed by their limited data.  But 40 years of social science has improved the databases and developed techniques for measurement.    William Henderson at Indiana University is a law professor who has combined an historian's ear for narrative with the social scientist's appetite for data.  His latest post shows that the elite law school brand business model (pioneered by Cravath Swaine & Moore) is cracking under market pressure.

In thirty years of practice I found that lawyers pay little attention to where you went to school.  Adversaries are evaluated on reputation and personal experience.  It was a shock when I came to the academy to learn that elite law school pedigree matters so much.  It never occurred to me when I passed up Berkeley for Rutgers-Newark that I was putting a major dent in my ability to secure a teaching job.  Today I see the worry on students faces over grades and US News rankings.   Is Fordham up or down?  "I have Fordham branded on my forehead" lamented one to me recently, pained because she earlier had Princeton stamped there.  Henderson asks - if grades and pedigree matter so much in the market do they really predict effectiveness as a lawyer?  NO, says Henderson, but their sway can be explained by a kind of managerial self protection:

One of the advantages of going to an elite law school is the presumption that you are a very smart and able lawyer.  If you made law review, graduated Order of the Coif, or clerked for a federal judge, the presumption grows stronger.  Most large law firms are very sensitive to pedigree, though you’d be hard pressed to find any hard empirical evidence why the kid who went to Harvard is a better bet than someone who went to, say, Boston College, Illinois, or the University of Houston.  Although the performance benefits of elite pedigree are little more than a hunch, the entire market for corporate legal services has bought into the notion that better résumés equal a better firm.  As the demand for corporate legal services continued to grow over the last several years, this herd-like branding strategy produced the $160,000+ associate pay structure and the now famous “bi-modal” distribution.

Yet, as the economy has slipped into recession, the pedigree bubble has finally burst.  It is now painfully obvious to everyone that it does not matter where you went to school, or who you clerked for—a lawyer in his or her first or second year of practice is just not worth $275 per hour.[1] A few star lawyers, or a handful of marquee firms, may be able to levy these rates for junior lawyers as part of bundled package of services.  But the vast majority of large law firm partners are experiencing overwhelming downward pressure on fees.  Because of high overhead added during the boom years, many firms are in the unprecedented position of slashing associate salaries to generate a large enough profit pie to keep key rainmakers in the firm.  As a result, elite credentials are now in the process of getting repriced.

Wednesday, July 7, 2010

`Daubert' hearings for eyewitness ID testimony endorsed by NJ Law Journal Editorial Bd.

Clearing Blurred Vision

July 2, 2010
Last year, the state Supreme Court remanded State v. Henderson , an eyewitness 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 N.J. 223 (1988), the Court had held that courts must decide (1) whether the procedure was impermissibly suggestive; and (2) whether the procedure resulted in a "very substantial likelihood of irreparable misidentification."

Madison left the door open wide for unreliable testimony. Social science research demonstrates that one-third of all positive identifications are wrong. And as reported by the Innocence Project, 75 percent of the persons exculpated by DNA evidence had been convicted on the basis of erroneous eyewitness identifications. The problem is not prosecutorial misconduct but the inherent frailties of memory demonstrated in lineups, show-ups and in-court identifications. Social scientists have identified patterns of failure due to factors including post-identification reinforcing feedback, eyewitness stress, weapon focus, distance effects, lighting, age of observer, and cross-race identification failures.

Persistence by New Jersey's Office of the Public Defender and its allies has paid off. The Supreme Court appointed retired Appellate Division Judge Geoffrey Gaulkin as special master. His report to the Court systematically reviews the scientific evidence, the law, and practice here and in other states. He rejects the state's standpat approach and urges the Court to adopt a key remedy. He would place "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."

Judge Gaulkin's approach brings civil and criminal standards into parity because the focus is on reliability, without the barrier of showing impermissible suggestiveness. This focus — away from fault and toward objective assessment of reliability by the judge as gatekeeper — is a wise one. We hope our Supreme Court embraces Gaulkin's approach.

This editorial was published in the July 2, 2010 issue of the New Jersey Law Journal.  Copyright 2010. ALM Media Properties, LLC. All rights reserved.  Further duplication without permission is prohibited.

Thursday, July 1, 2010

Handgun Murders vs. Justifiable Homicides: McDonald v. City of Chicago

It is popular and has a common sense appeal to say that since self-defense is a fundamental right gun ownership is a fundamental right.  The Supreme Court in McDonald v. City of Chicago makes that point.  Justice Samuel Alito locates that right in the Second Amendment, though it takes a forced reading to do it.  Maybe Justice Clarence Thomas is closer to the mark when he says that it is one of the "privileges and immunities" of citizenship, as Robert Cottrol argues, thinking of the right of the former slaves to protect themselves from the KKK as Reconstruction gave way to Jim Crow and a century of lynchings.

But recognition of the right of self-defense doesn't answer the question of the wisdom of our scarcely regulated right of gun ownership. Julie Cantor of UCLA says we should brace for the impact.  She makes her point graphically in the New England Journal of Medicine today:
 Garen Wintemute, et al. also argue in today's New England Journal that rather than close the so-called "gun show loophole", a"more effective approach would be to subject all private-party gun sales to the screening and record-keeping requirements that apply to sales by licensed retailers. Six states do so already, and nine others regulate all sales of handguns".