Bank of America Announces Massive $8.5 Billion Mortgage-Backed Securities Settlement : The D & O Diary

Kevin LaCroix's informative presentation

Bank of America Announces Massive $8.5 Billion Mortgage-Backed Securities Settlement : The D & O Diary

The Supreme Court, Miranda and Children - NYTimes.com

Samuel Alito, when applying for a Justice Department job during the Reagan years, explained that one of his motivations for going to law school was to reverse the liberal rulings of the Warren court. Now that he is one of at least four like-minded voters, and is on the Supreme Court, the two of the Warren Court crown jewels - Miranda, and the exclusionary rule are on the verge of being ground into dust, observes Linda Greenhouse in her comments on J.D.B. v. North Carolina, the recent 5-4 ruling that a seven year old in custody may have to be treated more carefully than and adult. - GWC

The Supreme Court, Miranda and Children - NYTimes.com

She notes "the dissenters’ extreme dislike for Miranda itself. Justice Alito refers repeatedly to Miranda’s “rigid standards,” its “inflexible” requirements and the “high cost” to the criminal justice system of having to suppress “confessions that are often highly probative and voluntary by any traditional standard.” (The dissenters’ bigger target is undoubtedly the exclusionary rule, which requires the suppression of illegally obtained evidence, and which, based on recent decisions, is hanging by a thread.)"

Debt Ceiling - the Executive Power - the 14th Amendment

“They took the vacation, they bought the car and now they’re saying we’re not going to pay for it” - Barack Obama, referring to Congress, June 29, 2011

Amendment XIV, Constitution of the United States of America

The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any state shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

It seems to me dubious that the debt limit is legal.  If the Congress has passed a law and authorized an expense and revenue is in shortfall, doesn't the Executive have the power to borrow the money necessary to pay the bills and execute the laws?

Clinton: Stimulus wasn't big enough - Tim Mak - POLITICO.com

Clinton: Stimulus wasn't big enough - Tim Mak - POLITICO.com: "Former President Bill Clinton said he likes the economic stimulus - it just wan’t big enough.

“I think the stimulus did as well as it could have done — there just wasn’t enough of it,” Clinton told reporters on Tuesday.
President Obama’s $787 billion stimulus bill, signed into law in 2009, has since being a rallying point of contention for Republicans and conservative tea party activists.

Clinton has made his support for the stimulus package clear in the past, telling Fox News in 2009: “I think the stimulus package is well conceived. A lot of it puts money in people’s hands, with the unemployment benefits and the food stamps and the tax cuts. A lot of it keeps the states and local governments from laying off a million more people or having big tax increases with the aid to education and health. And then I think the energy and the infrastructure investments will create the jobs the president wants. So I like the conception of that.”"

NJ Assembly Bill Would Raise Filing Fees, Fund Legal Services, Develop E-Filing

Five weeks after Legal Services of New Jersey pleaded poverty at a legislative hearing, the State Assembly is taking up a measure that would bump up court filing fees to help fund the legal aid provider.

The bill, A-4197, introduced Monday, also would help fund the judiciary's establishment of an e-filing system that would abate reliance on paper.

The New Jersey Law Journal report is HERE

THE CHINESE COMMUNIST PARTY AT 90: RELYING ON REPRESSION - U.S. - Asia Law Institute

by Jerome A. Cohen

THE CHINESE COMMUNIST PARTY AT 90: RELYING ON REPRESSION - U.S. - Asia Law Institute:

"On July 1, the Chinese Communist Party’s ninetieth birthday, many will celebrate its extraordinary economic achievements, and the political and military power they sustain. Even human rights critics acknowledge China’s impressive progress in health, housing and education. Greater openness at home and expanding global exchange are also helping to transform an increasingly urban people into a more sophisticated society. China has indeed “stood up”.

During its tenth decade, however, the costs of the party’s success are likely to become more apparent. Massive official corruption and the growing gap between rich and poor are eroding Communist legitimacy, and environmental disasters loom ever larger. The struggle over land and other scarce resources is daily spawning social conflicts. Management-labor tensions have been rising rapidly. The number and breadth of mass protests, better known to Party leaders than to the world, cry out for a governmental system that will adequately reflect popular demands and effectively respond to widespread grievances."

Bachmann’s Waterloo | FactCheck.org

Bachmann’s Waterloo | FactCheck.org: "Bachmann’s Waterloo
The GOP lawmaker's presidential campaign starts with a slew of off-base claims.
June 28, 2011"

Nan Aron: Clarence Thomas: Time to Discover if There's Fire With the Smoke

Nan Aron: Clarence Thomas: Time to Discover if There's Fire With the Smoke

I signed the ethics professors letter drafted by Alliance for Justice that calls for the Canons of Judicial Ethics to be formally adopted by or imposed on the Supreme Court of the United States. Recent reports show that Justice Clarence Thomas has again failed to disclose financial matters that he should have reported.

Nan Aron - of Alliance for Justice - has published on HuffPost a blistering attack on Justice Thomas. The problem is that failure to disclose benefits received is lumped together with Justice Alito as a "headliner" at a Heritage Foundation event. I don't think that is an offense any more than attending an ACLU dinner would be for Ruth Ginsburg who once served them. (I don't know if she does do such things.)

The point is that they are not the same category of event. Aron hurts her demand for the Judicial Conference to investigate Justice Thomas by lumping together failure to report on financial matters with demonstrations of ideological affinity with the far right. One may be worthy of sanction. The other is a regrettable consequence of conservative success at the ballot box. Not the same.

SALT - support for faculty tenure

SALT: "70 and Counting!

The following law school faculties have passed resolutions vigorously opposing the proposed changes to ABA Standards 206, 405, and 603 that would end the legal academy’s commitment to the system of tenure and security of position for law school deans, traditional faculty, clinical faculty, legal writing faculty, and librarians.

There doesn't seem to be any discomfort expressed with the fact that clinical faculty typically do not have tenure but serve on five-year contracts. I don't know about legal writing faculty.

NJ Supreme Court Committee bars negotiating for agreement not to file ethics complaint

Saying that the matter of attorney discipline is an entirely public matter, the New Jersey Supreme Court’s Advisory Committee on Professional Ethics has barred agreements to withhold filing an ethics complaint as a condition of settlement of a dispute with a client.  In Opinion 721 the ACPE explained:

"The Committee finds that such an agreement is prejudicial to the administration of justice and, accordingly, violates Rule of Professional Conduct 8.4(d).  An agreement conditioned on the withdrawal of a grievance already filed similarly would violate Rule of Professional Conduct 8.4(d). "

Although one may settle a fee or malpractice dispute with an independently represented client, the Committee ruled that

"Attorney discipline is not a private  cause of action or private remedy for misconduct that can be negotiated between an attorney and  the aggrieved party.  The discipline process furthers public, not private interests: it is not intended to punish the attorney or vindicate the aggrieved party but, rather, “to preserve the confidence of the public in the integrity and trustworthiness of lawyers in general.”  In re Wilson, 81 N.J. 451, 456 (1979). ”

The Committee’s formal opinions are binding, not advisory.  Under the New Jersey Rules of Court any aggrieved attorney or bar association may petition the state’s Supreme Court for review.

Tacopina Takes Different Legal Sides in Rape Cases - NYTimes.com

A good lawyer - Joseph Tacopina.  No mystery to me how he handled both cases described in the Times article.  I would have taken both and hope I would have gotten similar results. I think the result in the Moreno case was the result of good defense work which developed the ambiguities - rooted in the victim's drunkenness.  And the offenses of which Officer Moreno was convicted will cost im his career as a police officer.
Tacopina Takes Different Legal Sides in Rape Cases - NYTimes.com:

"Over the past couple of months, the defense lawyer Joseph Tacopina has found himself an object of scorn among women’s groups, advocates for sexual assault victims and others.
Mr. Tacopina defended a police officer accused of raping a drunken woman while his partner stood guard. Detractors said Mr. Tacopina had attacked the accuser’s credibility and furthered a defense for his client, Officer Kenneth Moreno, that was implausible.

But nearly a year to the day before Mr. Moreno was acquitted of rape last month, Mr. Tacopina was wrapping up a trial in which he was on the opposite side of a similar case.

In a civil trial last year in New Jersey, Mr. Tacopina won $760,000 for a woman who charged that two police officers of the Port Authority of New York and New Jersey had raped her while she was drunk."

Palin’s Emails: What Her Remarkably Lucid Prose Says About The Art Of Teaching Writing | The New Republic

Palin’s Emails: What Her Remarkably Lucid Prose Says About The Art Of Teaching Writing | The New Republic: "Call her defensive or parochial based on the cache of her spontaneous writings while serving as governor of Alaska, but something easy to miss is that Palin, in contrast to her meandering, involuted speaking style, is a thoroughly competent writer—more so than a great many people most of us likely know, including college graduates. "

Order In The Court! | Talking Points Memo

The physical confrontation in the chambers of the Wisconsin Supreme Court is evidence of how intense are the passions evoked by issues before today's courts.

I don't know that there are any larger lessons here - like contested judicial elections are bad. Certainly civility was strained in the recent dispute on the New Jersey Supreme Court where Justice Roberto Rivera-Soto briefly refused to vote on cases - declaring the court's composition to be ultra vires. But the maxim `justice cools the fierce glow of passion by making it pass through reflection' bears repetition.

Order In The Court! | Talking Points Memo:

"Wisconsin Supreme Court Justice Ann Walsh Bradley is now publicly accusing her fellow justice, David Prosser, of putting her in a 'chokehold' in her chambers in the presence of other justices during heated discussions over the controversial state law that limited the collective bargaining rights of state workers.

Bradley's accusation came after a local news report yesterday first revealed details of the incident, which allegedly happened two weeks ago. Neither Bradley, a liberal jurist, nor Prosser, a conservative, would comment for the original story. Prosser has also now issued a statement denying the allegation."

90 glorious years of the Chinese Communist Party

Not quite  90 glorious years.  Even this exultatory  slideshow says of the Cultural Revolution (1966 - 1976) that it was "actually cultural havoc".


Otherwise one will search in vain in the People's Daily online for much in the way of candid reflection on the history of the Communist Party in this year in which it celebrates its 90th year - and demonstrates its intention to remain the party permanently in power.

"The basic line of the Communist Party of China in the primary stage of socialism is to lead the people of all ethnic groups in a concerted, self-reliant and pioneering effort to turn China into a prosperous, strong, democratic, culturally advanced and harmonious modern socialist country by making economic development the central task while upholding the Four Cardinal Principles and the reform and opening up policy."
"The Four Cardinal Principles to keep to the socialist road and to uphold the people's democratic dictatorship, leadership by the Communist Party of China, and Marxism-Leninism and Mao Zedong Thought are the foundation on which to build the country. "

Clemens wins access to Mitchell Commission interview notes

The Blog of Legal Times reports that the motion by Roger Clemens defense lawyers to gain access to interview notes of George Mitchell's interrogations of witnesses (during his investigation of steroid use in baseball) has been granted in part.  Notes redacted of attorneys impressions, etc. (under the work product rule) will be turned over.  Clemens is entitled to the information in his defense against charges he perjured himself himself before Congress when he denied using performance enhancing drugs.

In a carefully hedged Order U.S. District Judge Reggie Walton has limited access to statements by Kirk Radomski and Brian McNamee which directly pertain to Roger Clemens.

Dui bu qi wo de zhong wen bu hao! Brits sing about how hard it is to learn how to speak Chinese

Closing the courthouse doors

by Erwin Chemerinsky

Dean , School of Law

University of California - Irvine

Closing the courthouse doors: "Two U.S. Supreme Court decisions about very different statutes, one in a criminal context and the other civil, show that the conservative majority of the current Court is aggressively closing the courthouse doors even when it requires a tortured reading of federal statutes to do so."

Chemerinsky is referring tothe AT&T case - barring consumer class actions by enforcing AT&T mobile's arbitration clause; and a death penalty case - Cullen v. Pinholster in which the majority reads the habeas corpus act to bar factual hearings on exculpatory evidence not considered in  the state court proceeding. Justice Sotomayor's dissent is compelling, in my view. - GWC

Gay marriage in New York

CBO: If Congress does nothing deficit will disappear: TPMDC

Let's be clear about this: the budget deficit is principally the product of four factors:

- the Bush tax cuts (which were designed to eat up the Clinton surplus)

- the Iraq war (off budget)

- the Afghanistan war (off budget)

- the Medicare prescription drug benefit (unfunded)

- the annual "doc fix" which boosts Medicare reimbursement above the level set in the Medicare statute's formula.

The Congressional Budget Office chart below shows that IF the Bush tax cuts are allowed to expire the medium-term deficit disappears. (top chart) So much for the Big Lie that Obama, TARP, etc. brought on the deficit. IF YOU cut your income would your debt rise or fall? No need for Keynesian economics on this point. The bottom chart shows what happens if we keep the Bush tax cuts - reducing revenue. The key is the dotted line: revenue projections - GWC

CHART OF THE DAY: If Congress Does Nothing, The Deficit Will Disappear | TPMDC:

 "the forecast also presents another opportunity to remind people that the medium-term budget outlook is perfectly fine if Congress adheres to the law as it's currently written. That means no repealing the health care law, for one, but more significantly it means allowing the Bush tax cuts to expire, and (unfathomably) allowing Medicare reimbursement rates for doctors to fall to the levels prescribed by the formula Congress wrote almost 15 years ago. In other words, no more 'doc fixes.'

Helpfully, CBO juxtaposed these two alternative futures in a pair of graphs and, just as last time, it projects that deficits will disappear entirely by the end of President Obama's second term (if he gets a second term) if Congress were to just sit on its hands and do nothing."

Republicans reward business with lawsuit limitations

“I remember the days when the attorneys didn’t advertise,” says Larry Mocha, an Oklahoma businessman who has been lobbying for state and federal lawsuit limitations for 20 years. “Now you’ve got them on TV advertising that they’ll file a lawsuit for nothing.”

from Stateline - the Pew Center for the States

Republicans reward business with lawsuit limitations:

"For the last two decades, Larry Mocha has had a simple request for lawmakers in his home state of Oklahoma: make it harder for people to file lawsuits against businesses.
Mocha, the 65-year-old owner of APSCO, Inc., a small, Tulsa-based company that makes truck parts, has a personal reason for his pursuit. In the late 1980s, he faced a pair of lawsuits from people claiming that faulty parts made by Mocha’s firm had led to personal injuries. Mocha strongly denied the accusations, but he never had a chance to prove himself in court because his insurance company — fearful of a big payout if a jury sided with the plaintiffs — forced him to settle, costing the insurer $600,000. Later, the insurance company dropped him altogether, even though he insists he never did anything wrong in the first place"

Suit claims public defenders too busy to defend | Seattle Times Newspaper

P.D. Sybrandy denies his work is substandard

Local News | Skagit County suit claims public defenders too busy to defend | Seattle Times Newspaper: "MOUNT VERNON, Skagit County — Approximately 1,000 misdemeanor cases cross the desk each year of public defender Richard Sybrandy, a volume that is more than double what the state bar says is a reasonable amount.

But as staggering as that caseload is, it is only about half of Sybrandy's total workload. In addition to being a contracted public defender for Mount Vernon and Burlington, he maintains a private practice of criminal cases.

His workload is so large, in fact, that an unusual class-action lawsuit filed last week in Skagit County accuses Mount Vernon and Burlington of violating defendants' constitutionally protected right to counsel"

High-Speed Rail Poised to Transform China - NYTimes.com

Why not do as the Chinese do? Remember the Eisenhower interstate highway system? The Republican Party lost its way someplace. They are afraid to invest in big projects. We have governors (Florida, NJ, Wisconsin) who have rejected federal money for high speed rail! - GWC

High-Speed Rail Poised to Transform China - NYTimes.com: "Just as building the interstate highway system in the United States a half-century ago made modern commerce more feasible on a national scale, China’s ambitious rail rollout is helping to integrate the economy of this sprawling, populous nation. In China’s case, it is doing so on a much faster construction timetable and at significantly higher travel speeds than anything envisioned by the United States in the 1950s.

Work crews of as many as 100,000 people per line have built about half of the 16,000-kilometer, or 10,000-mile, network in just six years, in many cases ahead of schedule, including the Beijing-to-Shanghai line, which was originally planned to open next year. The entire system is still on course to be completed by 2020.

For the United States and Europe, the implications go beyond marveling at the pace of Communist-style civil engineering. As trains traveling 320 kilometers per hour link cities and provinces that were previously as much as 24 hours by road or rail from the entrepreneurial seacoast, China’s manufacturing might and global-export machine are likely to grow more powerful."

The Real vs. Imagined Deficit - Economic Scene - NYTimes.com

David Leonhardt, Times economics columnist is one of the plainer spoken, most sensible commentators on an issue "the deficit" which is the occasion for hyperbolic rhetoric. BTW - remember that the Bush tax cuts were intended to eat up the Clinton budget surplus; and that the cakewalk in Iraq was going to be paid for by Iraqi oil; and that nobody made a plan to pay for Medicare part D - the prescription drug benefit. - GWC

The Real vs. Imagined Deficit - Economic Scene - NYTimes.com:

by David Leonhardt

"Eventually, the country will have to confront the deficit we have, rather than the deficit we imagine. The one we imagine is a deficit caused by waste, fraud, abuse, foreign aid, oil industry subsidies and vague out-of-control spending. The one we have is caused by the world’s highest health costs (by far), the world’s largest military (by far), a Social Security program built when most people died by 70 — and to pay for it all, the lowest tax rates in decades.

To put it in budgetary terms, the deficit we imagine comes largely from discretionary spending. The one we have comes partly from discretionary spending but mostly from everything else: tax rates, Medicare, Medicaid and Social Security.

Taxes may be the toughest issue politically, but the mechanics of raising taxes are not all that difficult. As the 1990s demonstrated, the economy can grow rapidly even after a modest tax increase. As the last decade showed, a big tax cut doesn’t necessarily prevent mediocre growth."

Counsel may be required in delinquent child support cases: SCOTUS

In Turner v. Rogers a majority of the Supreme Court held (5-4) that due process analysis may compel the appointment of counsel to defend a person facing jail for failure to pay child support. The key is that the state must provide a fair procedure to determine if the delinquent parent has the ability to pay. - GWC

JUSTICE BREYER delivered the opinion of the Court.

South Carolina’s Family Court enforces its child support orders by threatening with incarceration for civil contempt those who are (1) subject to a child support order, (2) able to comply with that order, but (3) fail to do so. We must decide whether the Fourteenth Amendment’s Due Process Clause requires the State to provide counsel (at a civil contempt hearing) to an indigent person potentially faced with such incarceration. We conclude that where as here the custodial parent (entitled to receive the support) is unrepresented by counsel, the State need not provide

counsel to the noncustodial parent (required to provide the support). But we attach an important caveat, namely, that the State must nonetheless have in place alternative procedures that assure a fundamentally fair determination of the critical incarceration-related question, whether the supporting parent is able to comply with the support order.

Prof Steven Schwinn has helpful commentary on Constitutional Law Prof blog.
And our Bruce Green has this comment on Concurring Opinions, which begins:

As a professional responsibility professor, what I found surprising in the Court’sTurner decision was the view that assigning a lawyer to the defendant who faces imprisonment for nonpayment of child support “could make the proceedings lessfair overall” by “increasing the risk of a decision that would erroneously deprive a family of the support it is entitled to receive.”For the organized bar, it is an article of faith that a lawyer’s participation makes judicial proceedings more fair, not less fair.  And it’s not clear why that should not be true in this context.  The Court’s sentiments conjure up the stereotype of the crafty lawyer engaging in sly tactics to distract jurors from the truth.

RAND, Cold Warriors and the Failure of 'Rational Choice Philosophy' - NYTimes.com

by John McCumber

On the source of our current ideological helplessness: the Cold War origins of the reactionary rational choice theory. - GWC

RAND, Cold Warriors and the Failure of 'Rational Choice Philosophy' - NYTimes.com: "According to Hegel, history is idea-driven. According to almost everyone else, this is foolish. What can “idea driven” even mean when measured against the passion and anguish of a place like Libya?

But Hegel had his reasons. Ideas for him are public, rather than in our heads, and serve to coordinate behavior. They are, in short, pragmatically meaningful words. To say that history is “idea driven” is to say that, like all cooperation, nation building requires a common basic vocabulary."

The Weiner resignation

I have been wondering about the difference in reaction to Anthony Weiner's venial sins compared to Bill Clinton's transgressions in the Lewinski affair.  Clinton perjured himself at least twice (in deposition in the Paula Jones case and before the Grand Jury) and he famously said on television "I did not have sex with that woman".  Although `having sex' commonly refers to intercourse his denial was correctly understood to be much broader than that.

Yet nobody on the Democratic side of the spectrum thought he should resign - or be removed from office.  His approval numbers stayed high.

What's the difference? I think it is that Weiner's behaviour would be seen as that of a jerk in high school. Very few people think they were jerks in high school - and certainly not at 46. Clinton lied about sex. Lots of people have lied about sex. It's somehow less damaging than being a jerk.

What about Spitzer vs. Clinton - maybe the difference is the prostitution vs consensual sex with an adult. But David Vitter got re-elected in Louisiana despite using prostitutes. Maybe Spitzer's big mistake was having his wife stand with him at the press conference. I wonder if a confession and apology would have kept him in office.  

Braun: On N.J. schools, facts don't guarantee a winning argument | NJ.com

I went to the 4th grade `moving up' ceremony at PS 187 yesterday. the kids are moving up to the intermediate school - IS 187. Same building, same principal. The children, predominately Dominican, don't score as high as suburban kids. But just a few minutes in a classroom busy with words and pictures and lessons shows you that there is a lot of teaching going on. Why do so many think our schools are failing...so we should cut their funding? Robert Braun, the distinguished Star Ledger education write discusses the problem. - GWC

Braun: On N.J. schools, facts don't guarantee a winning argument | NJ.com:

"'If you look at all the facts, you can see things are getting better, even in urban schools,' says Marion Bolden, the former Newark schools chief. 'Change doesn’t happen overnight.'
But facts don’t count when blaming feels so right politically. Teachers are easy targets of the envious who lost jobs, benefits and pensions and aren’t rich enough for tax reductions. Urban schools are demonized because — surprise — they spend more than suburban schools where race and privilege are, as the credit card ad goes, the 'priceless,' but uncounted, costs of success."

The Pawlenty Tax Cuts Dwarf Bush's

It is a mystery to me.  Corporations are sitting on huge bundles of cash.  Despite interest rates that are negligible the Republican Party moans that debt service is killing growth.  Businesses are reluctant to invest because demand - particularly consumer demand - is low.  Yet the Republican Party's mantra is to cut taxes sharply for those who already have cash.  Today they rejected extension of the 2% payroll tax holiday. Why should we expect that those  who have cash will now spend it when they have more?  You can bet that workers will spend their cash.  Below is a chart from the Center for Budget and Policy Priorities that shows how huge are the Pawlenty tax cut proposals.

Palestinians Seek to Redefine National Struggle - NYTimes.com

The single-state solution: Israel, like other democracies, would become one nation, under God, with liberty and justice for all. What's wrong with that?

Palestinians Seek to Redefine National Struggle - NYTimes.com:

"'My kids are asking: 'if my access and movement, my freedoms as an individual are going to remain hostage to some kind of political process that refuses to end, I'd rather drop the political process for statehood and focus on my rights today'.

'That is exactly what this younger generation is doing and it is fully in tune with the Arab Spring.'

The approach naturally edges the Palestinians closer towards an idea rejected by Israel but which appears to be gaining more support among Palestinians: that they seek full civil rights from Israel as part of the same political entity.

That implies abandoning the two-state approach in favour of one that would lead to a very different outcome: a single, binational state stretching from the Mediterranean Sea to the Jordan valley.

Supporters of the idea say it could take decades to bring about, if at all. To Israel, the 'one-state solution' is a non-starter. Giving citizenship to millions of Palestinians would undermine the Jewish character of Israel and end the Zionist dream."

David C. Baldus, 75 dies - studied race and the law - NY Times

David C. Baldus   NY Times photo

David Baldus was a great man. His analyses of how arbitrary was the death penalty: which fell particularly harshly on African American citizens.

The New Jersey Supreme Court appointed him a special master to conduct a "proportionality review".  Ultimately New Jersey repealed the death penalty in 2007. 


Reflecting on proportionality review - the effort to assure that like cases are treated alike - retired Chief Justice Deborah Poritz (who oversaw the effort)  acknowledged at a conference at Seton Hall Law School  that it proved" impossible" to eliminate the arbitrariness in the imposition of the death penalty.  As Associate Justice Barry Albin observed - the killers languishing on death row could not be meaningfully distinguished from those serving terms of 25 years to life in prison.  - GWC

David C. Baldus dies at 75 - studied race and the law - NY Times:

"David C. Baldus, whose pioneering research on race and the death penalty came within a vote of persuading the Supreme Court to make fundamental changes in the capital justice system, died on Monday at his home in Iowa City. He was 75.
The cause was complications of colon cancer, his wife, Joyce C. Carman, said."

Supreme Court narrows securities fraud suits: Bloomberg News

Only the person or company in whose name a false statement is issued, i.e. only the one "ultimately responsible" is the "maker" of a false statement.  In Janus Capital Management the court immunized Janus Capital's in-house captive investment advisers from 10(b)(5) fraud actions.  They accomplished this via a  remarkably narrow interpretation of the verb "make".  One of the broadest verbs in the English language, its definitions extend for 12 pages in the micro-film edition of the Oxford English Dictionary.  The court split along the usual 5-4 lines, with Justice Thomas writing the majority opinion. - GWC

Mutual Fund Shareholder Suits Curbed by U.S. Supreme Court - Bloomberg: 

"A divided U.S. Supreme Court threw out a suit against Janus Capital Group Inc. (JNS) in a ruling that will limit the ability of shareholders of mutual fund companies to press securities fraud suits.
The court, voting 5-4 along ideological lines, today said shareholders can’t sue Janus and a subsidiary for helping produce allegedly misleading prospectuses for Janus mutual funds. The majority said that the funds are separate legal entities and that neither the parent company nor the subsidiary were responsible for the prospectuses."

Kissinger's On China - review by Jonathan D. Spence | The New York Review of Books

Kissinger with Mao Tseteng and Zhou Enlai

It is difficult to fathom now - that China was so demonized it was impossible to suggest - and be elected - that we could and should have normal relations with the Peoples Republic.  As is often observed - only Nixon - the red-baiter - could go to China.  Kissinger was his emissary.  The old nemesis of the left and strategist  reflects in his new book On China.- GWC
Kissinger and China by Jonathan D. Spence | The New York Review of Books:

"It is hard to fit Henry Kissinger’s latest book, On China, into any conventional frame or genre. Partly that is because the somewhat self-deprecatory title conceals what is, in fact, an ambitious goal: to make sense of China’s diplomacy and foreign policies across two and a half millennia, and to bring China’s past full circle in order to illuminate the present. In form, the book is highly idiosyncratic, for it is not exactly a memoir, or a monograph, or an autobiography; rather it is part reminiscence, part reflection, part history, and part intuitive exploration"

Ohio court investigating lawyer who tipped Tressel - Forbes.com

Ohio court investigating lawyer who tipped Tressel - Forbes.com: "Ohio court investigating lawyer who tipped Tressel
By ANDREW WELSH-HUGGINS , 06.13.11, 01:17 PM EDT

COLUMBUS, Ohio -- The Ohio Supreme Court is investigating possible misconduct by the attorney who first tipped Ohio State's football coach to NCAA violations by his players.

Coach ( COH - news - people ) Jim Tressel's decision not to alert university officials to the tip from lawyer Christopher Cicero ultimately led to Tressel's resignation under pressure for failing to report the violations immediately.
State Disciplinary Counsel Jonathan Coughlan  alleged in a filing Friday that Cicero violated professional conduct rules by revealing information from interviews with a potential client."

Labor's share of national income plummets

This is what the decline of unions means in real terms.  Wages of workers go down.  Who cares?  
 Source: Dept. of Labor, Bureau of Labor Statistics

Ethics case for Weiner? Maybe a psychiatrist is needed. - Jim Dwyer - NY Times

Let's try to think this through. Just what did Anthony Weiner do that is wrong - besides acting like an awkward adolescent? Has he broken any laws? Should he quit because he has embarrassed himself and his Party? Seems to me Jim Dwyer has got it right. And now so has Weiner who has checked himself into some sort of Tiger-Wodds type psycho- sexual fat farm. - GWC

Ethics Case for Weiner? Maybe One of Psychiatry - NYTimes.com:

by Jim Dwyer

"The matter of Anthony D. Weiner, unclothed congressman, is being lodged by Democratic Party elders with the House ethics committee, a holding room where it will remain until either it, or he, goes away.
Those elders must be hoping to heaven that Mr. Weiner departs before the machinery of investigation is gassed up and rumbles toward the Internet Protocol addresses where he composed his epistles.

By some schools of thought, if he wrote these personal messages on government equipment, this could be seen as unethical behavior.

Still, ethics hardly seems the right discipline for this affair.

Psychiatry might help."

Litigation finance contracts explained: Forbes.com

Litigation-Finance Contract Reveals How Investors Back Lawsuits - Daniel Fisher - Full Disclosure - Forbes: "A contract between Ecuadorean villagers suing Chevron and a London firm that finances corporate litigation offers a detailed look at a growing phenomenon in the law: Investing in lawsuits. The contract with a Cayman Islands arm of Burford Group shows the conflicts that can riddle such arrangements, and have led some states, like Nevada, to ban them outright."

Google, what do you want? - People's Daily Online

Li Yixuan is editor of the Chinese CP organ People's Daily. He claims that "Google has slandered China" by its recent assertions that there have been targeted attacks from China which yielded account information about high level people in the U.S. He can't understand why Google has joined the international attack on China. Maybe because - though they don't want to lose the Chinese market - dangerous attacks have in fact come from China. - GWC

Google, what do you want? - People's Daily Online:

"Google claimed on its official blog on June 1 that the personal Gmail accounts of hundreds of users, including senior U.S. government officials, journalists and Chinese human rights activists, suffered phishing attacks originating from Jinan, China.

In fact, this is not the first time that Google has slandered China.

Google alleged in January 2010 that it suffered cyber attacks from inside China but has not presented any evidence so far. This time, in order to cater to the West's stereotyped image of China, Google listed 'Chinese human rights activists' as victims, insinuating that the Chinese government was behind the cyber attacks although once again it did not provide any solid proof to support its statement. The conclusion is therefore reached that Google's accusation is groundless and bears ulterior motives.

China and the United States have long been working together in combating cyber crimes, and have established an international cooperative mechanism in law enforcement. Google could directly bring the case to court if it had enough evidence. Why does it keeps tarnishing the image of China and hyping the so-called China threat theory."

A Step Back for Learning Languages - NYTimes.com

It's been a brilliant success - the conservative hegemony. They broke the unions, slashed benefits, and kept salaries low. That helped make voters more friendly to the anti-tax message. Here's another little step forward for ignorance. We don't care enough about teaching kids second languages to bother measuring their competence. - GWC

A Step Back for Learning Languages - NYTimes.com:

by Jim Dwyer

"New York is filled with people who either cannot speak English or who can speak nothing but.Next week, students across the state will take Regents exams in foreign languages for the last time, as the state is dropping its tests in Spanish, French and Italian.
This will save $700,000 a year, or to put it another way, roughly the cost of policing a homestand at one of the baseball stadiums.
Do not be confused, dear citizens and students: the state still believes that it is important to learn foreign languages and culture before graduation.
Just not $700,000 important"

Kiobel: Corporations can be human rights violators, plaintiffs say in appeal to SCOTUScase at Court : SCOTUSblog

Major new corporate case at Court : SCOTUSblog: "A new appeal challenges the Second Circuit Court’s deeply divided ruling that foreign corporations cannot be sued in U.S. courts, under a 1789 law, for war crimes or human rights abuses.
Lawyers for 12 individuals seeking to hold major oil companies legally responsible for human rights abuses in Nigeria in the 1990s have asked the Supreme Court to overturn a federal appeals court’s ruling that corporations are immune to such claims in U.S. courts. The new petition, in the high visibility case of Kiobel, et al., v Royal Dutch Petroleum, et al., raises what may be the hottest international law issue now affecting business firms.
In essence, the case is a kind of ultimate test of what Congress meant when, as part of the first federal courts law in 1789, it gave U.S. courts the authority to hear claims by foreign nationals that they were harmed by violations of international law. The case also seeks to test what the Supreme Court understood the law to mean in its ruling seven years ago in Sosa v. Alvarez-Machain, an international abduction case."

TaxProf Blog: ABA to Continue as Law School Accrediter, Despite Noncompliance With 17 Regs

TaxProf Blog: ABA to Continue as Law School Accrediter, Despite Noncompliance With 17 Regs: "The ABA drew intense scrutiny on Thursday from a federal panel that reviews accrediting agencies."

The ABA section on Legal Education accredits law schools. Most states allow only graduates of ABA-accredited law schools to take the bar exam. Its recent proposals (which would weaken tenure) have drawn fire. Lack of openness about job prospects is another area of criticism. My favorite beef is the upstairs-downstairs approach to clinical egal education. The ABA ratifies the common practice of tenure for `academic' faculty and five-year contracts for clinical faculty.   As for legal writing teachers and adjuncts: oh, never mind. - GWC

UCLA law prof wins interim appeal regarding State Bar data; court comments on the nature of the State Bar of California

Richard Sander, UCLA law prof, is on a mission to end affirmative action. His thesis is that it leads minority law students to fail up. Basically he says that it's better to be at the top of a weak school than the bottom of a strong one. To vindicate his hypothesis he seeks California State Bar data. The State Bar resisted - claiming judicial data is not public data. But the intermediate Court of Appeal disagreed. In an interesting opinion it describes the State Bar as a public corporation with both judicial and administrative functions - subject to the control of both the California Supreme Court and the state legislature.

Legal Ethics Forum: UCLA law prof wins interim appeal regarding State Bar data; court comments on the nature of the State Bar of California

Bush tax cuts failed - CBPP

from the Center on Budget and Policy Priorities: Voodoo economics - as George H.W. Bush called Ronald Reagan's supply side policies before he climbed onto the bandwagon - doesn't work:

h/t Paul Krugman

N.J., Gov. Christie enter national spotlight with plan to cut $540M in Medicaid funding | NJ.com

Gov. Chris Christie (R-NJ) 

It's a long way from the War on Poverty and health care as a human right to to Gov. Chris Christie's plan to bar Medicaid benefits for a family of three earning more than $103/week. The state minimum wage of $7.25/hour would bring a gross income of $290/week.  Cruel is a word that comes to mind.

N.J., Gov. Christie enter national spotlight with plan to cut $540M in Medicaid funding | NJ.com: "TRENTON — As states across the country look for ways to trim billions off their spending on Medicaid, New Jersey is garnering particular attention for a proposal that opponents characterize as an unprecedented and draconian attempt to balance the state's precarious budget on the backs of society's most vulnerable populations.
The debates taking place in statehouses, clinics and living rooms crystallize the unfortunate truth about economic recessions: Citizens rely most on public services just when the government has the least money to spend on those services.
In New Jersey's case, changes would mean a parent of two earning more than $103 per week would be ineligible."

Krugman - selected essays on macro economics

Paul Krugman has posted links to several of his own pieces on macro-economics the past three years.  They are below.  As someone who  is sympathetic to the Obama administrations's limitations (politics - the art of the possible) Krugman's harsh criticisms can be hard to take.  But I think  you would be hard pressed to say that Tim Geithner or Austan Goolsbee's predictions stand up well against Krugman's.

Macro Readings, Self-Referential Edition

Largely for my own purposes, some links to stuff I’ve written over the past three years bearing on macroeconomic policy. Read all of them, and you’ll have a good sense of where I’m coming from. - PK

The humbling of the Fed.

Macro policy in a liquidity trap.

Optimal fiscal policy in a liquidity trap.

A Dark Age of Macroeconomics.

Liquidity preference, loanable funds, and Niall Ferguson.

Myths of austerity.

More on Friedman and Japan.

The Instability of Moderation.

Self-defeating austerity..

Sam, Janet, and Fiscal Policy.

China’s water pistol.

China rejects "independent candidate" amid local legislature elections - CPC News

"Independent" candidates are going nowhere in China, the Communist Party has made clear.

China rejects "independent candidate" amid local legislature elections - CPC News: "China said Wednesday that there is no such a thing as an 'independent candidate,' as it's not recognized by law, amid ongoing elections starting this year of lawmakers at the county and township legislatures.

The Electoral Law stipulates that candidates for lawmakers at the county- and township- levels should be first nominated as 'deputy candidate' and then confirmed as 'official deputy candidate' in due legal procedures, said an official of the National People's Congress (NPC), China's top legislature.

The official, head of the Commission for Legislative Affairs of the NPC Standing Committee, made the remarks when asked about campaign announcements by 'independent candidates' to run for deputies to the grassroots people's congresses. These announcements were made on the web over the past few weeks."

Mass Tort Litigation Blog: BP Oil Spill Appeals Judges Appointed

Mass Tort Litigation Blog: BP Oil Spill Appeals Judges Appointed: "he Gulf Coast Claims Facility has appointed twenty-five people to serve as appeals judges for BP's private compensation system. Alabama's Press Register describes the process as follows:
Anyone who files a claim valued at more than $250,000 can protest the claims operation’s initial ruling to the appeals panel. BP can protest the decision on any claim above $500,000.
The judges will serve in panels of three. The panels will have 14 days to rule on each case before them.
If claimants are not happy with the appeals ruling, they can file their claim with the U.S. Coast Guard, or sue BP and other companies involved in the spill."

Health reform: One way capitalism can make health care worse and more expensive | The Economist

This post illustrates Jonathan Chait's point that being a west coast blogger is easy because all you have to do is wait til 9 PM Pacific Time when NY Times op-eds are published then point out for the umpteenth time what an airhead David Brooks is. Here's one more piece of evidence on Brooks' latest lament that government insurance can't deliver health care efficiently.

Health reform: One way capitalism can make health care worse and more expensive | The Economist: "Why do we think that a system in which ads for Claritin are all over the subways will generate better overall health results than one where a national review board determines whether Claritin delivers treatment outcomes for some populations sufficiently superior to justify its added expense over similar generics? What do we expect from a system in which, as ProPublica reports today, body imaging companies hire telemarketers to sell random people CT scans over the phone?"

Turner v. Rogers : SCOTUSblog

It's June and the U.S. Supreme Court will, presumably, adhere to its practice of deciding every case argued during the term. That includes the big "civil Gideon" case the issues in which are stated below. the link brings you to all the key documents.

Turner v. Rogers : SCOTUSblog: "Issue: 1) Whether an indigent defendant has a constitutional right to appointed counsel at a civil contempt proceeding that results in his incarceration; and 2) whether the Court has jurisdiction to review the decision of the South Carolina Supreme Court.
Plain English Issue: Whether an indigent defendant has a right to court-appointed counsel when faced with being sent to jail for violating a state court order, and whether this is the kind of case that the Supreme Court can consider."

The answer to Q. 1 should be Yes, but will probably be No. - GWC

In defense of Canada | The Incidental Economist

Just to be clear: read this post. Canada's single payer system delivers health care more efficiently than does our system. Medicare is a single payer system. It works. do costs need to be managed? yes. Do we need to replace it with a subsidy for you to buy private health insurance? No. /t Paul Krugman

In defense of Canada | The Incidental Economist

Giuliani Rips Mitt Romney On Healthcare: 'A Mandate Is A Mandate' | TPMDC

Rudy Giuliani must have picked up some of the Tea party spirit as he headed north to New Hampshire where the license plates say Live Free or Die.  He has found a new freedom: the freedom to have no health insurance. It's a remarkable reversal the Republican Party has embraced: being uninsured for illness is not a bad thing: it's a personal freedom.

Rudy Giuliani Rips Mitt Romney On Healthcare: 'A Mandate Is A Mandate' | TPMDC: "Is Rudy Giuliani running for something?

On a visit to the crucial primary state of New Hampshire, the former New York mayor took dead aim at Mitt Romney for his Massachusetts health care law, calling on him to apologize to America for inspiring President Obama's own reforms.

'[Romney] can't talk his way out of this,' Giuliani told the New Hampshire Union Leader. 'A mandate is a mandate is a mandate is a mandate is mandate. Let's get real.'
According to Giuliani, Romney has 'taken away people's freedom' with his requirement that Massachusetts residents purchase health insurance, and his failure to admit it was a mistake is damaging to the party."

Last Ten Years Of Wage Gains Lower Than During The Great Depression | ThinkProgress

The  big questions are  Why? And What to do about it?  How to raise wages?  Drive down wages - especially public workers is the balanced-budget mantra of Governors.  Government employment loss has equaled private sector growth in the past two years.  Higher wages and general inflation would boost exports and effectively cut household debt burden.  But the Republican economists are the anti-inflation police and they have got a majority in the House and a veto-block in the Senate. Makes you yearn for a one party state - but which party?


Last Ten Years Of Wage Gains Lower Than During The Great Depression | ThinkProgress: 
"For decades, wages and incomes for the American worker have been stagnant, even as productivity has increased substantially. Over the 2000 to 2009 period, workers experienced a “lost decade,” with incomes falling by nearly five percent and wages hardly growing at all. And according to Jed Graham, the last decade in terms of real wages was actually worse than the Great Depression:

The increase in total private-sector wages, adjusted for inflation, from the start of 2001 has fallen far short of any 10-year period since World War II, according to Commerce Department data. In fact, if the data are to be believed, economy wide wage gains have even lagged those in the decade of the Great Depression (adjusted for deflation). Over the past decade, real private-sector wage growth has scraped bottom at 4%, just below the 5% increase from 1929 to 1939, government data show."

Why CPC resolutely safeguards political discipline - People's Daily Online

The Chinese Communist Party leaders think they are sitting on a powder keg. Maybe they are. Holding the line is the present, fearful mood among the leadership. Stated in typically Chinese fashion there are four challenges:

- the test of governance

- the test of reform and opening up

- the test of the market economy and

- the test of the external environment.

The danger - "westernization".

Why CPC resolutely safeguards political discipline - People's Daily Online: "People's Daily, the flagship newspaper of the Central Committee of the Communist Party of China, released an article titled 'Resolutely Safeguarding the Party's Political Discipline' by Zhong Jiwen on May 25, which attracted wide attention from various overseas media.

This article pointed out that the Party's political discipline is the rule of safeguarding the Party's political principles, political orientation and political line, and regulating political speech, political actions and the political stand of Party organizations and members. It is the most important discipline of the CPC. The article lists recent incidents of certain Party members and cadres who violated the Party's political discipline."

Sara Palin needs help on Paul Revere's Ride

It's confusing to be running and not know what you're talking about.  This is the sort of thing that happens when you are on your own, no direction known, like a complete unknown, like a Rolling Thunder biker mama. 

Palinisms: Did she really say that? - By Jacob Weisberg - Slate Magazine: "'He who warned, uh, the British that they weren't going to be taking away our arms uh by ringing those bells and making sure as he's riding his horse through town to send those warning shots and bells that we were going to be secure and we were going to be free and we were going to be armed.'—on Paul Revere, June 3, 2011"


This is the story of Paul Revere that Palin bungled.


Colbert to the rescue: this is how it could'a been the way Sara remembered:

The Colbert Report
Tags: Colbert Report Full Episodes,Political Humor & Satire Blog,Video Archive

Joe Feuerherd - National Catholic Reporter publisher/editor dies at 48

Joe Feuerherd

For thirty years I have been a subscriber and regular reader of National Catholic Reporter - which carries the flag for the progressive vision of the Church exemplified by the Vatican II Council. Its fine editor, publisher, and writer Joe Feuerherd has died of cancer at 48 years of age. He is remembered here.

Catholic social thought, Catholics In Alliance The Common Good Forum: "In Memoriam Joe Feuerherd
by Professor Stephen Schneck, Director of Catholic University's Institute for Policy Research & Catholic Studies


Joe Feuerherd, publisher and editor-in-chief of National Catholic Reporter (NCR), died last Thursday after a long fight with cancer. His presence in the lives of so many of us who work and study the intersection of the Catholic faith, the Church, and American public life was extraordinary."

Li Hongmei's column--English--People's Daily Online

Thirty years after the mass protests at Tianmen in Beijing were crushed by tanks the People's Daily online felt no need to mention the events. The paper focused on practical considerations and criticisms like the growing recognition that the massive Three Gorges Dam project has created enormous complications and threats.

That typifies the situation in China: criticism of the Communist Party's monopoly on political power is "sensitive" and impermissible. But concrete, practical critiques of significant problems is permissible.

Li Hongmei's column--English--People's Daily Online: "The State Council, China's cabinet, said on May 18 that the Three Gorges faced 'urgent problems' of geological disaster prevention, relocation and ecological protection, noted the negative impact on downstream water supplies and river transport, and vowed to restore things to order within the next eight years.

The spectacular dam has been dubbed as China's most impressive man-made wonder since it came into being in 1992, second only to the Great Wall, inviting boundless respect and admiration. But it seems that, all of a sudden, 'the national pride' became a 'problem child' just overnight."

Using Legacy of Watergate, John Dean to Teach Ethics - NYTimes.com

John Dean in 2006 (AP photo)

Using Legacy of Watergate, John Dean to Teach Ethics - NYTimes.com: "When John W. Dean III testified before the Senate Watergate Committee in June 1973, he handed over a list of names of those in the Nixon administration he believed had broken the law. His own name was on the list, along with 15 others.


Senator Herman Talmadge asked about an odd feature of the list: asterisks. Why, the Georgia senator asked, had the former White House counsel placed an asterisk by more than two-thirds of the names?


Because, Mr. Dean replied, each was a lawyer."

Can We Haz QE III Now, Pleeze? - Grasping Reality with Both Hands

The civilian adult employment-to-population ratio remains at 58.4%: we have no labor-market recovery.


It has reached the point where I have to say the the Republican Party is in denial.  In Maine Republicans hold the Governor's office and both houses.  They just voted down a 50 cent (over two years) raise in the minimum wage of $7.50/hour and voted for an increase in the deductible for the estate tax from $1 million to $5 million.  (Trickle-down theory says the rich will invest here if they can leave their money to their kids.)   To me it is an  allergy to raising revenue, and  to putting money in workers' hands - so they can buy more things.  
On today's bad news - from economist Brad DeLonge:
Can We Haz QE III Now, Pleeze? - Grasping Reality with Both Hands: "Greg Robb:


May jobs growth slows to 54,000, a nine-month low: In disappointing news for the White House, Wall Street and Main Street, U.S. job gains slowed to a crawl in May and the unemployment rate moved higher, the Labor Department estimated Friday. Nonfarm payrolls rose by a seasonally adjusted 54,000 in May. This is the smallest gain since September and a fraction of the 125,000 jobs expected by economists polled by MarketWatch...The civilian adult employment-to-population ratio remains at 58.4%: we have no labor-market recovery."

A Record Low for 2010 Law Grads: Only 68% Have Jobs Requiring Bar Passage - News - ABA Journal

A Record Low for 2010 Law Grads: Only 68% Have Jobs Requiring Bar Passage - News - ABA Journal: "Law graduates in the class of 2010 have set a new record, and it’s not a good one.

Only 68.4 percent of 2010 grads were able to land a job requiring bar passage, the lowest percentage since the legal career professionals group NALP began collecting statistics.

Another 10.7 percent have jobs that don’t require bar passage but prefer or require a JD, while 8.6 percent are employed in other capacities, according to a press release (PDF). The statistics are based on jobs held nine months after graduation for those whose employment status is known.

The classes of 2009 and 2008 had higher percentages of jobs requiring bar passage, at 70.8 percent and 74.7 percent respectively."

Chinese Law Prof Blog: China's Jasmine Crackdown and the Legal System

There has been a protracted debate among academic lawyers about the development of the Chinese legal system. As law schools churn out thousands of graduates and advanced degree holders westerners - particularly Americans try to assess it. The hope is that Rule of Law will prevail: independent courts, laws that bind the governors as well as the governed, often with a rosy view of our own system. Are they going there? Or not?

The Chinese Communist Party explains that they are filling in the gaps, assuring civil rights for all. By that they mean a fully developed statutory system and adequately staffed and trained courts and judges. Normal rule of law. This, of course, does not satisfy western observers. Whether liberal or conservative they agree that one-party rule is inherently tyrannical. So unless China's CP decides that citizens are free to organize and advocate displacement of the Communist Party as the party permanently in power the CP's policies will not find acceptance here.

An entree into the debate is presented by this recent essay by Prof. Don Clarke, of George Washington University Law School. The owner/moderator of the Chinese law listserve and blogger at Chinese Law Prof Blog, his recent essay has prompted lively discussion among 中国通 - China hands, old and new. - GWC

Chinese Law Prof Blog: China's Jasmine Crackdown and the Legal System

Antecedents of Brown v. Plata: Justice Kennedy on prisons and prisoners

Justice Anthony Kennedy wrote the stunning majority opinion in Brown, Governor v. Plata last month.  There the U.S. Supreme Court ordered California to alleviate the overcrowding in its prisons.  His rhetoric reminded Linda Greenhouse of the great days of the Warren Court.  Kennedy's role should not have been a complete surprise as this 2003 address to the American Bar Association shows.  An excerpt follows:

The subject of prisons and corrections may tempt some of you to tune out. You may think, “Well, I am not a criminal lawyer. The prison system is not my problem. I might tune in again when he gets to a different subject.” In my submission you have the duty to stay tuned in. The subject is the concern and responsibility of every member of our profession and of every citizen. This is your justice system; these are your prisons. The Gospels’ promise of mitigation at judgment if one of your fellow citizens can say, “I was in prison, and ye came unto me,” does not contain an exemption for civil practitioners, or transactional lawyers, or for any other citizen. And, as I will suggest, the energies and diverse talents of the entire Bar are needed to address this matter.
Even those of us who have specific professional responsibilities for the criminal justice system can be neglectful when it comes to the subject of corrections. The focus of the legal profession, perhaps even the obsessive focus, has been on the process for determining guilt or innocence. When someone has been judged guilty and the appellate and collateral review process has ended, the legal profession seems to lose all interest. When the prisoner is taken way, our attention turns to the next case. When the door is locked against the prisoner, we do not think about what is behind it.
We have a greater responsibility. As a profession, and as a people, we should know what happens after the prisoner is taken away. To be sure the prisoner has violated the social contract; to be sure he must be punished to vindicate the law, to acknowledge the suffering of the victim, and to deter future crimes. Still, the prisoner is a person; still, he or she is part of the family of humankind.