Friday, March 30, 2012

Average Debt of Private Law School Grads Is $125K; It's Highest at These Five Schools - News - ABA Journal

Average Debt of Private Law School Grads Is $125K; It's Highest at These Five Schools - News - ABA Journal: "The average education debt for law grads at private schools last year was nearly $125,000, while the average for grads of public law schools was more than $75,700, according to new figures released by the ABA.

The debt load increased 17.6 percent from the prior year for private law grads and 10 percent for public law grads, the Daily Journal (sub req.) reports. In 2001-02, the average debt was only about $46,500 for public law school grads and about $70,000 for private law school grads."

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Thursday, March 29, 2012

`Obamacare' - Congress's power is plain - Gillian Metzger - Balkinization

Columbia Law School's Vice Dean Gillian Metzger has a lucid analysis of the individual mandate's constitutionality. - GWC
by Gillian Metzger
"Equally striking, and too easy to lose sight of, is the key point on which all of the parties agree and the Justices appeared to accept: Congress can require anyone who is seeking healthcare services, and is therefore active in the healthcare market, to obtain insurance as the mechanism to finance those healthcare purchases---or pay an annual tax penalty. As Justice Kagan particularly noted, the issue here is simply one of timing. Those who oppose the mandate’s constitutionality say that Congress can only require purchase when an individual actually seeks healthcare, whereas those who support it contend that Congress can require purchase now because requiring purchase when someone shows up sick is infeasible. Critically, however, no one denies that Congress can require anyone actively seeking healthcare to buy insurance.
If so, the facial challenge to the constitutionality of the mandate being brought here has to fail."

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Wednesday, March 28, 2012

Adrienne Rich, Influential Feminist Poet, Dies at 82 -

"I am here, the mermaid whose dark hair
streams black, the merman in his armored body
We circle silently about the wreck
we dive into the hold. ...
We are, I am, you are
by cowardice or courage
the one who find our way
back to the scene
carrying a knife, a camera
a book of myths
in which
our names do not appear."

I used the phrase Diving Into the Wreck as the lead in the title of my recent article about the BP Gulf Oil Spill.  Although the exploration of the law of compensation has nothing to do with the exploration of identity that made Adrienne Rich's 1974 title poem so powerful, I used the phrase to pay tribute to her, the author of one of the most evocative poems I have ever read. - GWC

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The limiting principle and the individual mandate - Jack Balkin / Balkinization

The parade of horribles that the conservative Justices imagined at oral argument expressed the libertarian view of "tyranny".  If the government can make me buy this they can make me do anything, can't they?  Even eat broccoli in Antonin Scalia's characteristically snide and hyperbolic remark.  Jack Balkin explains..  - GWC
for the full piece go to: Balkinization:

The Limiting Principle
by Jack M. Balkin
Hey kids? Are you down in the dumps after Tuesday's oral argument? Do you want a limiting principle that justifies the individual mandate but doesn't give Congress unlimited power under the Commerce Clause? Fine. Here are three of them. Pick your favorite.
1. The Moral Hazard/Adverse Selection Principle. Congress can regulate activities that substantially affect commerce. Under the necesary and proper clause, Congress can require people to engage in commerce when necessary to prevent problems of moral hazard or adverse selection created by its regulation of commerce. But if there is no problem of moral hazard or adverse selection, Congress cannot compel commerce.  Courts can choose different standards of review to decide how much they want to defer to Congress's conclusion. Even under the strictest standard of review the individual mandate passes muster.
Explanation:  The guaranteed issue and community rating rules prevent insurers from discriminating against uninsured people because of preexisting conditions.  These rules create a moral hazard: people will wait until they get sick to buy insurance. (this might be better described as an adverse selection problem)  Congress can require them to buy insurance early to prevent gaming the system. (Actually, it exacerbates an already existing problem in all health insurance, because insureds know more about their health condition than insurers).
Why not broccoli? There is no moral hazard problem created when people refuse to buy broccoli. It's true that buying and eating broccoli might make you healthier, but people don't wait until they are sick to buy broccoli. That's because broccoli is not going to do them much good at that point. In this sense, broccoli doesn't work like health insurance.
Why not cars? Under this principle, Congress can't make everyone buy a car in order to help the auto industry. There is no moral hazard that Congress is responding to that is caused by people strategically waiting to buy cars. Note, by the way, that if fewer people buy cars, the price of cars might go down, not up, as Justice Scalia thought.
Closest analogy: In United States v. Comstock, the Supreme Court held that Congress could create a civil commitment system for mentally ill prisoners following their criminal sentences when no state wanted to take them.  Congress had created a situation in which after long prison terms connections to states were attenuated, and no state wanted to risk being stuck with the costs of civil commitment. As a result, Congress could create its own system.

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Tuesday, March 27, 2012

Craziness prevails in Obamacare hearings - Andrew Koppelman -

Paul Clement speaks in front of the Supreme Court in Washington on Tuesday, as the court continued hearing arguments on the health care law.Antonin Scalia's snide can the government make me buy broccoli" question to the Solicitor General should rank as one of the low points in Supreme Court oral argument history, though it will probably be a big hit on Fox News. - GWC
Craziness prevails in Obamacare hearings -
by Andrew Koppelman
 "The long-awaited oral argument on the merits in the challenge to the Affordable Care Act makes depressing reading, because so many judges seem to be ready to buy such silly arguments – arguments whose silliness was pointed out on the spot, sometimes even conceded by the challengers, but which nonetheless seemed to sometimes move Chief Justice John Roberts and Justices Anthony Kennedy, Antonin Scalia and Samuel Alito. (Justice Thomas, who characteristically didn’t say a word, is a sure vote to strike down the law.)
A lot of arguments have been made against the mandate, but we can roughly group them into two broad categories, which I’ll call 1) No Limits and 2) I Am a Rock.  No Limits claims that if the mandate is permitted, there will be no limitations on federal power. I Am a Rock claims that people have a constitutional right to some safe harbor where they and (more important) their money are immune from all federal regulation."

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Mark Tushnet on Day 2 of the ACA Arguments - Balkinization

Harvard constitutional law prof Mark Tushnet is very cogent here.  Oral argument is particularly confusing - to read, and to engage in - because nobody has the briefs (which they didn't write) at hand, so it is much less coherent than are the briefs.  Apropos the Chief Justice's question:  the government is not going to order you to buy a cell phone because your failure to buy a cell phone does not make cell phones unviable.  But failure to buy health insurance until needed could undermine the viability of the health insurance!  Burial insurance?  I think government could compel you to contribute to that, just like social security.  Broccoli?  Antonin Scalia really is a jerk. Tushnet spells it all out - GWC
by Mark Tushnet
 "The only question is not whether the SG offered a coherent distinction between the health insurance market and other markets – *a* limiting principle – but whether someone’s going to find the distinction adequate. (It’s not a Drew-Days situation where Days couldn’t offer, in Lopez, any limiting principle; here there’s one on offer, so the question is whether the only demand in the case is for a limiting principle, or rather is for a “good” or “strong” or something like that limiting principle.)"

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Argument recap: It is Kennedy’s call : Lyle Denniston SCOTUSblog

Argument recap: It is Kennedy’s call : SCOTUSblog:
by Lyle Denniston
If the vote had been taken after Solicitor General Donald B. Verrilli, Jr., stepped back from the lectern after the first 56 minutes, and the audience stood up for a mid-argument stretch, the chances were that the most significant feature of the Affordable Care Act would have perished in Kennedy’s concern that it just might alter the fundamental relationship between the American people and their government.   But after two arguments by lawyers for the challengers — forceful and creative though they were — at least doubt had set in. and expecting the demise of the mandate seemed decidedly premature.

Day 2 Transcript

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Kennedy seems opposed to individual mandate at ACA Oral Argument - Tom Goldstein SCOTUSblog

OMG -  - that sinking feeling.  If we can't get Kennedy....
SCOTUSblog: "I stepped out of the oral argument to provide this audio report (at bottom of page).

For those who prefer reading, here is a summary of the report:

Based on the questions posed to Paul Clement, the lead attorney for the state challengers to the individual mandate, it appears that the mandate is in trouble.  It is not clear whether it will be struck down, but the questions that the conservative Justices posed to Clement were not nearly as pressing as the ones they asked to Solicitor General Verrilli.  On top of that, Clement delivered a superb presentation in response to the more liberal Justices’ questions.  Perhaps the most interesting point to emerge so far is that Justice Kennedy’s questions suggest that he believes that the mandate has profound implications for individual liberty: he asked multiple times whether the mandate fundamentally changes the relationship between the government and individuals, so that it must surpass a special burden.  At this point, the best hope for a fifth or sixth vote may be from the Chief Justice or Justice Alito, who asked hard questions to the government, but did not appear to be dismissive of the statute’s constitutionality."

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A Picture of Language -

I liked diagramming sentences.  We did it in English, Latin and Greek in high school.  I think it really helped us to understand a sentence.  Key to understanding what the reader will understand.  (Yes, that is an incomplete sentence).  You get the idea. I had no idea that it was such a 19th century invention by a schoolmaster.  - GWC
A Picture of Language - by Kitty Burns Florey
"The curious art of diagramming sentences was invented 165 years ago by S.W. Clark, a schoolmaster in Homer, N.Y. [1] His book, published in 1847, was called “A Practical Grammar: In which Words, Phrases, and Sentences Are Classified According to Their Offices and Their Various Relations to One Another.” His goal was to simplify the teaching of English grammar. It was more than 300 pages long, contained information on such things as unipersonal verbs and “rhetorico-grammatical figures,” and provided a long section on Prosody, which he defined as “that part of the Science of Language which treats of utterance.”
It may have been unwieldy, but this formidable tome was also quite revolutionary: out of the general murk of its tiny print, incessant repetitions, maze of definitions and uplifting examples emerged the profoundly innovative, dazzlingly ingenious and rather whimsical idea of analyzing sentences by turning them into pictures. “A Practical Grammar” was a reaction against the way the subject had been taught in America since it began to be taught at all."

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Monday, March 26, 2012

Why the New York Law School Win was a Defeat - Tamanaha/Balkinization

Balkinization the NY Law School Win was really a defeat:
by Brian Tamanaha
"When the fraud lawsuit against New York Law School was dismissed last week, the school proclaimed vindication. It was anything but that. What Judge Schweitzer ruled is that no reasonable consumer would have relied upon the obviously inflated employment percentages and salary numbers posted by the school."

This whole problem really is grim.  I had the benefit of going to law school practically for free.  Not because I was a star student!  I had good LSAT and GRE scores, but that was about it.  I was a grad student of Howard Zinn at BU and a returned Peace Corps Volunteer when I applied to Rutgers-Newark, drawn by the chance to work on the cause celebre of the moment - the Chicago 7 appeal.
Tuition was $500 in 1970! I had money left over from the Peace Corps - even after paying BU $2,000 for my M.A.  The second year I got a full scholarship.  Year three (1972-1973) tuition doubled to $1,000.  I kept the $500 scholarship.  Grand total: $1,000 for a J.D. at Rutgers the State University of New Jersey.  My first job - as a Business Rep at Actors Equity paid $13,500 - with benefits.  13X my total tuition!
Now students take on huge debt for uncertain prospects.  New York Law School has a fine faculty - and they have dedicated themselves to teaching weaker students - getting their bar pass rates up near the norm. 80% last summer, but 84% the previous two cycles.  86% is the statewide average.  Fordham averages 90%, NYU and Columbia 96%.

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Sunday, March 25, 2012

Chinese lawyers must pledge allegiance to the CP - China Law & Policy

Elizabeth Lynch has an interesting discussion of the new oath of office required of Chinese lawyers. (below)  It is a high level expression of what has recently been often observed: a harder line against dissident lawyers, and dissidents who support a western-style multi-party democracy.
The Communist party's leading role is embedded in the PRC Constitution.  So the new addition to the pledge (below)is surplusage, intended to send a message "don't even think about it".
I remember when they changed the Pledge of Allegiance, inserting the awkward phrase "under God", which disrupted the flow of the pledge.  I still resent it though for reasons that did not occur to be as a 10 year old.  "Under God" is what it is intended to be: an affirmation that we are believers - unlike those atheistic commies.  So in my opinion it is an offensive intrusion - an assertion that any non-believer is disloyal.  -GWC
"“I volunteer to become a practicing lawyer of the People’s Republic of China and promise to faithfully perform the sacred duties of a socialist-with-Chinese-characteristics legal worker (中国特色社会主义法律工作者); to be faithful to the motherland and the people; to uphold the leadership of the Chinese Communist Party and the socialist system; to safeguard the dignity of the constitution and the law; to practice on behalf of the people; to be diligent, professional honest, and corruption-free; to protect the legitimate rights and interests of clients, the correct implementation of the law, and social fairness and justice; and diligently strive for the cause of socialism with Chinese characteristics!”"

Friday, March 23, 2012

Chemerinsky: SCOTUS Tackles Law and Politics of the Health Care Act - News - ABA Journal

The Supreme Court will, over three days next week, hear oral argument regarding the Affordable Care Act - the most important legislative innovation since Medicare.  The attack on it seems to me specious - but it has become Republican dogma despite its Republican origins.  So I fear - as do many - that tribal loyalty will lead the conservative majority on the Supreme Court to strike the act.
UC Irvine Dean Erwin Chemerinsky lays out the issues more concisely and clearly than anyone else I have come across.  - GWC
Chemerinsky: SCOTUS Tackles Law and Politics of the Health Care Act - News - ABA Journal:
The legal issues before the Supreme Court are many and complex. Underlying it all, of course, is the political context. Every Republican in Congress voted against the Affordable Care Act. Every judge who has the reached the merits who was appointed by a Republican president, with two exceptions (6th Circuit Judge Jeffrey Sutton and District of Columbia Circuit Judge Laurence Silberman), has voted to strike it down. Every judge who has reached the merits who was appointed by a Democratic President, with one exception (Eleventh Circuit Judge Frank Hull), has voted to uphold it. Will the Supreme Court justices see it any differently? 

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Thursday, March 22, 2012

No Easy Call - Karl Rove gets it wrong on OBL raid - David Corn/Mother Jones

barack obama situation roomMust READ
Rove vs. "Showdown": He Says OBL Raid No Big Deal | Mother Jones
by David Corn
"In political warfare, truth matters little. That's what Karl Rove demonstrated today in a Wall Street Journal op-ed piece that blasted the 17-minute film recently released by the Obama reelection campaign. This campaign infomercial notes that the Osama bin Laden raid President Obama launched was the "ultimate test of leadership." Rove, who served a president who did not defeat Bin Laden in such a fashion, begs to disagree—and he claims that Bill Clinton backs him up on this point.
Rove asserts,
As for the killing of Osama bin Laden, Mr. Obama did what virtually any commander in chief would have done in the same situation. Even President Bill Clinton says in the film "that's the call I would have made." For this to be portrayed as the epic achievement of the first term tells you how bare the White House cupboards are.
Yet that is not what Clinton said about the decision."...

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Chinese Lawyers Chafe at New Oath to Communist Party -

Chinese Lawyers Chafe at New Oath to Communist Party -
 "BEIJING — Prominent rights lawyers in China issued sharp criticisms on Thursday of an order from the Justice Ministry that requires new lawyers and those reapplying for licenses to swear an oath of loyalty to the Communist Party.
The Justice Ministry posted the oath on its Web site on Wednesday. The core of it says: “I swear to faithfully fulfill the sacred mission of legal workers in socialism with Chinese characteristics. I swear my loyalty to the motherland, to the people, to uphold the leadership of the Communist Party of China and the socialist system, and to protect the dignity of the Constitution and laws.”"

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Plea Bargaining: Innovative Remedies for Ineffective Assistance of Counsel

Associate Justice Anthony Kennedy
The 6th Amendment right to effective assistance of counsel had its historic origins in the elements of a fair trial: the right of confrontation, to compel attendance of witnesses, etc.  But when the Supreme Court in the wake of Gideon v. Wainwright (1963) began spelling it all out, fairness throughout the criminal prosecution process was comprehended.  So defense counsel's incompetence at the sentencing phase became grounds for relief.  And in Padilla v. Kentucky failure to advise a client that a guilty plea would mean deportation violated the right to effective assistance.  So today's headlines are wrong.  The court in Lafler v. Cooper and Missouri v. Frye did not vastly expand criminal defendants rights. 
But the court did innovate regarding remedy.  Though it infuriated Justice Scalia the court did declare that a man who took his lawyer's stupid advice and was convicted of murder in a fair trial is nonetheless entitled to a remedy: We  "order the State to re-offer the plea agreement", Justice Kennedy declared in the majority opinion.  Cooper, now serving 185 - 365 months for murder, is sure to grab the opportunity to reduce that to the 51 - 85 months sentence that will make him a free man.
Justice Scalia (joined by Roberts, Alito and Thomas)  is alarmed:

[I]t would be foolish to think that “constitutional” rules gov­erning  counsel’s behavior will not be followed by rules governing the  prosecution’s behavior in the plea­ bargaining process... Is it constitutional, for example,  for the prosecution to with­ draw a plea offer that has already been accepted?  Or to withdraw an offer before the defense has had adequate time to consider and accept it?  Or to make no plea offer at all, even though its case is weak—thereby excluding the  defendant from [the plea bargaining process]?
Such Pandora's Box arguments are the stock in trade of dissenters.  I am reminded of Caperton v. A.T. Massey three years ago.  A liability verdict was vacated because one of the judges who decided it had benefited from a coal mine operator's enormous independent election campaign expenditures on the judge's behalf.  A flood of recusal motions was predicted by Chief Justice Roberts.  Didn't happen then.  Won't happen now. But we can hope that there will be remedies in the likely modest number of cases where a criminal defendant was shortchanged by a lawyer, learns about it, and obtains relief.

Tuesday, March 20, 2012

Paul Ryan’s budget: Should the poor pay for deficit reduction? - The Washington Post

Rep. Paul Ryan
Ezra Klein dissects and dismantles the latest budget scheme of Paul Ryan (R-WI). - GWC
Paul Ryan’s budget: Should the poor pay for deficit reduction? - The Washington Post:
by Ezra Klein
 "Here’s the basic outline of House Budget Committee Chairman Paul Ryan’s 2013 budget in one sentence: Ryan’s budget funds trillions of dollars in tax cuts, defense spending and deficit reduction by cutting deeply into health-care programs and income supports for the poor.
On the spending side, Ryan’s biggest cuts come from health-care programs. He eliminates the $1.5 trillion that the Affordable Care Act uses to purchase health insurance for 30 million Americans. Then he cuts Medicaid and related health programs by $770 billion — which is to say, by about a third. Medicare takes $200 billion in cuts on top of that. This graph from the Congressional Budget Office’s analysis of Ryan’s budget tells the story: 

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Monday, March 19, 2012

Old Memo Casts More Doubt on Rehnquist’s View of ‘Separate but Equal’ -

The Justices who unanimously issued
Brown v. Board of Education
At his confirmation hearings William Rehnquist - probably the most conservative voice in the Nixon-era Justice Department blamed on his boss Justice Robert Jackson - the former Nuremberg Prosecutor -   this first person memo defending Plessy v. Ferguson as correctly decided.  I always considered that pure prevarication.  Rehnquist of course went on to do a lot of damage as Associate and then Chief Justice of the United States.  One of his mentees and ideological cohorts - John Roberts - has succeeded him and may well do more damage than Rehnquist had the chance to do. - GWC
Sidebar — Old Memo Casts More Doubt on Rehnquist’s View of ‘Separate but Equal’ -
by Adam Liptak
"WASHINGTON — In 1952, a young Supreme Court clerk wrote a memorandum that would come to haunt him.
The court was considering Brown v. Board of Education, the great school desegregation case. The question for the justices was hether to overrule Plessy v. Ferguson, the 1896 decision that said “separate but equal” facilities were constitutional.
The memo, prepared for Justice Robert H. Jackson, was written in the first person and bore the clerk’s initials — “WHR,” for William H. Rehnquist"

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The names of the victims in Afghanistan

Josh Marshall at Talking Points Memo pointed out that while we puzzle over the new MyLai apparently perpetrated by a sole Sergeant (do American soldiers really go out alone at night in Afghanistan?) few here have paid real attention to the victims.  They have names.  And families.  That problem has been cured HERE by al Jazeera.  I have heard a lot of irresponsible "responsible" commentary suggesting things like there is less distress in Afghanistan over killing children than over the burning of the Koran because, inevitably, the suggestion is made that Muslims or Afghans don't value life.  This photograph is the answer to that.  And children?  Yes, and children.

Sunday, March 18, 2012

Employer-provided health insurance fading

When I hired my first employee in 1979 I got a health insurance policy for her and for me.  Didn't even think about the cost.  It really was quite modest.  That was the norm.  Employers provide health insurance for employees - with no employee contribution to the cost.  That of course changed.  Well the big trend - as labor grows weaker - is for fewer and fewer employers to provide that benefit.  It is down to half now.  Another reason we need the Affordable Care Act - and why we should expand Medicare - to cover the entire population.  For details follow the links below.  - GWC
 source: National Institute for Health Care Reform
h/t Kevin Drum, Mother Jones

Saturday, March 17, 2012

Forget the Money, Follow the Sacredness -

Tribe and groupthink explains most of politics, in my view. Jonathan Haidt, a social psychologist identifies the two competing narratives in American political thinking - the heroic progressive vision and the defensive Reaganite restorationist vision.  The Reagan version is weakly stated - because it underestimates racial resentment.  But the basic themes seem right to me.  Check it out. The Times excerpts his new book “The Righteous Mind: Why Good People Are Divided by Politics and Religion”. - GWC

Forget the Money, Follow the Sacredness -
 "Despite what you might have learned in Economics 101, people aren’t always selfish. In politics, they’re more often groupish. When people feel that a group they value — be it racial, religious, regional or ideological — is under attack, they rally to its defense, even at some cost to themselves. We evolved to be tribal, and politics is a competition among coalitions of tribes.
The key to understanding tribal behavior is not money, it’s sacredness. The great trick that humans developed at some point in the last few hundred thousand years is the ability to circle around a tree, rock, ancestor, flag, book or god, and then treat that thing as sacred. People who worship the same idol can trust one another, work as a team and prevail over less cohesive groups. So if you want to understand politics, and especially our divisive culture wars, you must follow the sacredness."

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Torts Today: SEC v. Citigroup - 2d Cir.: Rakoff settlement rejection unlikely to succeed

Torts Today: SEC v. Citigroup - 2d Cir.: Rakoff settlement rejection unlikely to succeed:

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Thursday, March 15, 2012

Rutgers-Camden Law community responds to takeover proposal |

Rutgers-Camden Law community responds to takeover proposal | "Rutgers-Camden Law community responds to takeover proposal

On Jan. 25, 2012, New Jersey Governor Chris Christie accepted and endorsed the final report of the UMDNJ Advisory Committee which recommended, among other things, that Rutgers-Camden be merged into Rowan University.  The entire Rutgers-Camden community, including the Rutgers School of Law in Camden, stands opposed to the proposed takeover of Rutgers-Camden.

We welcome the greater resources and autonomy that have long been withheld from Rutgers-Camden, and which the Advisory Committee’s proposal seeks to provide.  We believe, however, that these goals can be achieved more effectively and efficiently through a mutually beneficial partnership with Rowan, in which both Rutgers-Camden and Rowan maintain their distinct identities, and Rutgers-Camden remains part of Rutgers, The State University of New Jersey."

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Wednesday, March 14, 2012

PENNumbra—Ifill criticizes C.J. Roberts on recusal issues

Sherrilyn A. IfillPENNumbra—University of Pennsylvania Law Review:
by Prof. Sherrilyn Ifill
"Chief Justice Roberts 2011 State of the Judiciary address confirmed what many court watchers have long suspected: our Supreme Court fails to appreciate and understand fully how the appearance of bias among the Court’s Justices may increasingly undermine the legitimacy of the court’s decisionmaking and implicate the due process rights of litigants who appear before the Court. See John G. Roberts, Jr., 2011 Year-End Report on the Federal Judiciary (2011) [hereinafter, Roberts, 2011 Report], available at"

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After Alabama, Mississippi primaries, GOP holding pattern continues - The Plum Line - The Washington Post

After Alabama, Mississippi primaries, GOP holding pattern continues - The Plum Line - The Washington Post:
by JonathanBernstein
"So, I hate to say the same thing I said last week and every other week going back to New Hampshire, but the truth is that when the night is over and all the delegates are allocated…yes, once again, Romney did what he had to do to move another step closer to the nomination. True, there’s nothing here to trigger a stampede for him, but there’s nothing here to change the basic dynamic of the race. If you believe — which I mostly don’t — that it’s a disadvantage for the out-party to settle on their nominee relatively late in the cycle, then this was surely bad news for the Republicans, since it’s now likely that the contested phase of the nomination battle will go on at least until early April. And perhaps Santorum can force Romney to adopt even more policy positions that will indeed hurt him in November. Other than that, however, the race remains where it was, which should keep Romney reasonably happy."

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Torts Today: BP gulf oil spill: not a global settlement, but...

Torts Today: BP gulf oil spill: not a global settlement, but...:

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Tuesday, March 13, 2012

Leaving 'Well' Alone -

The point is, well, to stop using that over-used device.  Did it just the other day.  Oh, well. - gwc
Leaving 'Well' Alone -

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Spend Money on Schools not the War on Drugs

Spend Money on Schools Instead of the War on Drugs - Room for Debate -
Neill Franklinby Neill Franklin - Exec. Director - Law Enforcement Against Prohibition "Thanks to our ramped up "war on drugs," when I walk down the street in my old neighborhood I see houses where one or both parents are behind bars or on probation or parole.
Fifty-three percent of black boys never finish high school. Among those who drop out, 60 percent end up spending time behind bars. Even those who stay in school are seemingly being prepared for prison. Many schools treat kids as suspect from the moment they walk in the door, making them pass through metal detectors or administering urine tests as a condition of joining after-school clubs. Cops move about the schools like prison guards. It's like we're conditioning them for a life of incarceration.
Perhaps if we spent less money in a futile attempt to eliminate drug use through suspicion, arrests, prosecution and punishment, we could invest resources in improving our schools to ensure that more of our young people get the preparation they need to succeed.
Ending the drug war won't be a cure-all for racial disparities in our society, but it is a necessary first step."

Monday, March 12, 2012

When will we have a leader we can really count on?

College education and the reproduction of privilege

Thomas Edsall takes apart a big chunk of the "only in America" upward mobility myth.  The reality is high income-high education is a self-perpetuating status story.  The kids of the college-educated middle class - like ours - score high on SAT's, go to competitive colleges, do well, repeat.  - GWC
The Reproduction of Privilege -
by Thomas B. Edsall

Instead of serving as a springboard to social mobility as it did for the first decades after World War II, college education today is reinforcing class stratification, with a huge majority of the 24 percent of Americans aged 25 to 29 currently holding a bachelor’s degree coming from families with earnings above the median income.Seventy-four percent of those now attending colleges that are classified as “most competitive,” a group that includes schools like Harvard, Emory, Stanford and Notre Dame, come from families with earnings in the top income quartile,while only three percent come from families in the bottom quartile.

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A Way Forward on Judicial Ethics -

The Times has endorsed an elegant procedure suggested by Stephen Gillers to resolve the dispute about recusal standards for Supreme Court Justices: an internal review by the whole court, rather than the `each a judge in her own cause' standard that has long reigned.  I am a signer of the letter to which the Times refers because it just bugs me to hear the Chief Justice say in his 2011 annual report  that though not bound by the Code of Judicial Conduct, the justices"do in fact consult the Code" , as they do to many other authorities. 
Why not declare yourselves bound by the Code - even though the last word will inevitably be within the Court - except for the rare process of impeachment for high crimes and misdemeanors?
Instead of embrace of the Code which governs all other federal judges we get pablum like this from the Chief Justice: "I have complete confidence in the capability of my colleagues to determine when recusal is warranted. They are jurists of exceptional integrity and experience whose character and fitness have been examined through a rigorous appointment and confirmation process. I know that they each give careful consideration to any recusal questions that arise in the course of their judicial duties. We are all deeply committed to the common interest in preserving the Court’s vital role as an impartial tribunal governed by the rule of law."
It is not the "capability" of the justices that is at issue.  It is their conduct.    Though the Gillers proposal would be a step forward, it does not solve the guidance problem.  What we want to know is when is recusal warranted, and how do you decide?  I would support  embrace of the Code and establishment of an Advisory Committee on Judicial Conduct under the Judicial Conduct and Disability Act of 1980.   Similar to the New Jersey Supreme Court's Advisory Committee on Extra-Judicial Activities, a judge could inquire confidentially of the committee about whether a course of action is appropriate, whether it involves extra-judicial or reasons for recusal.  The Chief Justice or the Court might also make inquiry.  Such an advisory body would include former or retired judges and prominent practitioners.  

A Way Forward on Judicial Ethics - Editorial
"Last Tuesday, an alliance of government watchdog groups delivered 100,000 signatures to the Supreme Court along with a letter from hundreds of law professors calling on the justices to voluntarily adopt the code of conduct that applies to all other federal judges and to reform how they handle requests for recusals.
A federal appeals court ruling the next day on the case of a federal trial judge illustrates why recusal over a conflict of interest cannot be left solely to the judge involved and needs to be reviewed by other jurists. Yet the Supreme Court operates with no such mechanism, which is critical to preserving confidence in the court’s integrity"

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Sunday, March 11, 2012

Lessig: Corporate Campaign Contributions are Legal Corruption

Lawrence Lessig, in a Bloomberg interview, lays out his view that corporate contributions to political campaigns are corrupting.

Saturday, March 10, 2012

NJLJ Edit. Bd. Obama should explain legal basis for Al-Awlaki killing

Death Taken on Faith:
The U.S. government should make known what it thinks is the legal basis of its right to kill American citizen Anwar al-Awlaki and others like him by command of the executive.
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Friday, March 9, 2012

NJLJ Editorial Bd:: SCOTUS should reject NJ Supreme Court Denial of Padilla Retroactivity

No Way Out
March 7, 2012
copyright American Lawyer Media (2012) 
Since 1996, lawful resident aliens have been subject to deportation if guilty of an "aggravated felony" as defined under the federal Immigration and Nationality Act. Competent defense lawyers for noncitizen clients have since then been alert to the consequences of convictions.
But unfortunately, not all lawyers are competent. In State v. Nunez-Valdez, 200 N.J. 129 (2009), our Supreme Court directed trial judges to inquire of resident aliens who waived their right to trial to make sure that each knew that "if your plea of guilty is to a crime considered an aggravated felony under federal law you will be subject to deportation/removal." The next year, in Padilla v. Kentucky, 130 S. Ct. 1473 (2010), the U.S. Supreme Court declared an affirmative duty on defense counsel to advise their clients of the immigration consequences of a guilty plea.
Following Nunez and Padilla, many defendants subject to deportation sought to vacate their guilty pleas alleging ineffective assistance of counsel. Some 250 such cases were stayed while our Supreme Court considered the appeals. On Feb. 28, in State v. Gaitan and State v. Goulborne, the Court divided 5-2, holding that a defendant whose lawyer neglected to properly advise him of the deportation consequences of a guilty plea is entitled to postconviction relief only if the malpractice occurred after the landmark ruling in Padilla .
In the Gaitan majority's view, by imposing on defense counsel an affirmative duty to warn of the deportation consequences of a guilty plea, the U.S. Supreme Court broke new ground not compelled by Sixth Amendment precedent. As a consequence, the majority held, defendants whose counsel fell short of the Padilla standard before it was decided are not entitled to relief.
Justice Barry Albin, joined by Virginia Long, dissented, arguing that "with reference to the 1996 amendments the majority concludes that it is 'particularly important now for criminal defense attorneys to be able to, at a minimum, secure accurate advice for their clients on whether a guilty plea to certain crimes will render them mandatorily removable.' But then why was it not important in 2005 [when Gaitan pled guilty], nine years after the effective date of the amendments, for a noncitizen to receive advice about the immigration consequences of a plea?"
Albin therefore rejected the majority's ruling that Padilla created a new constitutional rule. Any "minimally adequate defense attorney has long known" to advise the client of the immigration consequences of conviction of a crime, he declared.
Our state Supreme Court held in Nunez that "it is ineffective assistance of counsel for counsel to provide misleading, material information that results in an uninformed plea." Padilla was the logical next step: No advice is no better than bad advice. The common principle is plain enough: Defendants who waive their rights should know the consequences, whether penal or collateral. The Gaitan majority's holding, that Padilla was a fundamental breakthrough imposing a new duty on lawyers, is unpersuasive. The concept of competent assistance of counsel has long been plain enough to guide defense attorneys to advise their alien clients of the drastic collateral consequences of a conviction.
The rejection of retroactivity is surprising because the newly clarified duty is imposed on defense attorneys, not on government actors who relied on an old rule. And the issue is a profound one: the fundamental fairness of the judicial process promised by the adversarial system enshrined in the Sixth Amendment. Fortunately, the Third Circuit has held in favor of retroactivity. The Seventh and Tenth have ruled against it.
The Gaitan/Goulbourne ruling lets courts lift the stay on more than 250 postconviction relief cases and dismiss the PCR petitions pending in trial courts that had been bound by the Appellate Division's embrace of "pipeline" retroactivity. With convictions reinstated, deportations will inevitably follow for defendants like Goulbourne, who is free on bail. The majority acknowledged that the Padilla retroactivity issue "is a challenging one." We understand that the state attorney general will not oppose an application to extend the stays, effectively keeping the matters alive if dormant, while we await the inevitable U.S. Supreme Court ruling to resolve the conflict among the circuits. That is the right thing to do.
Reprinted with permission.

Montana Supreme Court throws down gauntlet in Citizens United decision |

Montana Supreme Court throws down gauntlet in Citizens United decision | by Frank Askin - The Star Ledger "In 1912, the voters of Montana passed a referendum restricting corporations from spending money to elect candidates to office, except through closely regulated political action committees. The law was the result of well-publicized scandalous behavior by Montana corporations, especially mining companies, to take over state government.
In the aftermath of Citizens United, three corporations challenged the constitutionality of the 100-year old Montana statute.
Rather than acknowledging the precedent of Citizens United to strike down the law, the Montana justices (or at least six of the nine) either challenged or distinguished (depending on one’s perspective) the decision.
Acknowledging that Kennedy’s opinion had narrowly defined “corruption” as “dollars for political favors,” the Montana court majority (6-3) wrote: “Montana’s experience and experience elsewhere make it exceedingly difficult to maintain that independent expenditures by corporations do not give rise to corruption or the appearance of corruption.”"

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Why Obama Hopes The Recovery Picks Up Even More (CHART) | TPMDC

Why Obama Hopes The Recovery Picks Up Even More (CHART) | TPMDC:

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Thursday, March 8, 2012

Gulf oil spill moratorium claims have no place in BP settlement |

R&D - leases containers to drilling rigs
business faltered during the drilling moratorium
When BP's Macondo well blew out, spilling millions of gallons into the Gulf of Mexico the federal government imposed a moratorium on deepwater drilling.  Those who suffered losses due to the regulatory moratorium - not the spill itself - made claims.  But BP ordered its claims administrator Kenneth Feinberg not to pay those claims.  As details of the settlement in principle leak out, we learn the BP still has not budged.  
It is a classic proximate cause question.  But for the spill the moratorium would not have occurred.   But was the government action so independent of BP's conduct that the company should bear no responsibility for the moratorium claimants losses?  Someday Judge Carl Barbier who is managing the litigation will have to decide. - GWC
Gulf oil spill moratorium claims have no place in BP settlement | by David Hammer, The Times Picayune
"We fought to have moratorium claims included, but BP wouldn't budge," said Stephen Herman, co-lead counsel for the plaintiffs' committee that negotiated the settlement. "We're fully prepared -- and intending to -- litigate them."
Bertucci's lawyer, Joe Bruno, called BP's recalcitrance on the moratorium issue "a crying shame."
BP declined to comment Tuesday, but last November, when Feinberg urged BP to pay 6,000 moratorium claims that the company had expressly prohibited him from paying, the company was unequivocal in its refusal.
The federal oil spill law "was not designed to remedy claims arising from the government's decision to impose a temporary moratorium," BP spokesman Curtis Thomas said at the time."

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1990: Obama - a law student - speaks at Derrick Bell l rally

Inexplicably there are some people who believe that Barack Obama can't speak without a teleprompter.  Anyone who watches on of his press conferences knows it is not true.  But there could little evidence more dramatic that watching Barack Obama, a 29 year old law student, speaking powerfully and without notes at a 1990 rally for Derrick Bell.  In a protest against the lack of minority faculty, Bell did the unthinkable: gave up a tenured job at Harvard Law School. - GWC

Watch Obama Speaks at Harvard Law in '90 on PBS. See more from FRONTLINE.

Wednesday, March 7, 2012

Pleas over capital punishment verdict in China - Caixin Online - MarketWatch

Pleas over capital punishment verdict in China - Caixin Online - MarketWatch: "BEIJING ( Caixin Online ) — No tears are shed when an ex-government official is sentenced to die for corruption. Indeed, rarely does a condemned criminal elicit even a gram of public sympathy in China.

Which is why the soul-searching and pleas for mercy for death row inmate Wu Ying have been so remarkable, and why her unusual court case is shaking the nation’s perceptions of entrepreneur financing and an enormously popular, but thinly regulated, private lending sector.

Public opinion, most notably expressed in the blogosphere, has been rallying behind this young, former millionaire for nearly a year. Leading economists and legal experts have analyzed her case at length. Scholarly seminars have focused on the broad implications of her conviction and unexpected — some say undeserved — death sentence."

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BP Settlement Architects Hope To Win Over Skeptics | Fox News

BP Settlement Architects Hope To Win Over Skeptics | Fox News:
"I would say Mr. Feinberg did the best he could under very challenging circumstances, and he played the cards he was dealt to the best of his ability. But now we're starting with a new deck," said Steve Herman, one of the lead plaintiffs' attorneys in the litigation.
Herman expressed confidence that the settlement's architects can convince skeptics that a court-supervised claims process is a better vehicle for resolving claims than the GCCF has been.
"It recognizes more claims than were recognized under the GCCF," he said. "It gives the claimants more flexibility in establishing their losses and offers more security as to future risks."
Herman said the GCCF formula for calculating a claimant's economic losses compared 2009 revenues with post-spill 2010 revenues. The settlement program would allow a claimant to compare 2010 revenues against a broader time period, looking at revenues between 2007 and 2009, according to Herman.
Claimants will have a right to appeal any settlement offered though the court-supervised process to a neutral party or panel of up to three people. BP also can appeal any award over $25,000, but the company would have to pay a 5 percent penalty to the claimant if it loses, according to Herman.

Read more:

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Tuesday, March 6, 2012

How John Kennedy Looked from Bay Ridge in 1960 -

How John Kennedy Looked from Bay Ridge in 1960 -
by Gerald Howard
As is well known, even notorious by now, the Republican presidential candidate Rick Santorum recently stated that he “almost threw up” after reading John F. Kennedy’s famous 1960 campaign speech on the proper relation between church and state in American politics. Santorum has become the most highly visible face of culturally and politically conservative Catholicism as a result of this and other statements. A cradle Catholic myself, I was moved to re-read that speech and as a result I didn’t “almost” cry – I flat out cried. Cried in gratitude to J.F.K. and his speechwriter Ted Sorensen for being so transcendentally right and for erasing, with some 1,500 well-chosen words, a vile cloud of suspicion that had hung over our nation’s Catholics.

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Monday, March 5, 2012

Sandra Fluke's House Testimony

China to compensate for sea pollution|Society|

Oil pollution visible on Bohai Bay, China, August 2011
China to compensate for sea pollution|Society|
from China Daily
"China will establish a state compensation system for pollution in the marine environment, according to a NPC (National People's Congress) deputy , the Shanghai Evening Post reported on Monday.
China's marine department will overhaul all new and expended projects on the Bohai Sea and improve the sea environment in the area, Lv Bin, official from China's State Bureau of Ocean was quoted by the paper.
The move comes after a series of oil spills that began on June 4, 2011 in Bohai Bay that destroyed the livelihoods of hundreds of fishermen."

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Sunday, March 4, 2012

Torts Today: BP announces settlement with Plaintiffs' Steering Committee (PSC), subject to final written agreement | Press | BP

Torts Today: BP announces settlement with Plaintiffs' Steering Committee (PSC), subject to final written agreement | Press | BP:

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Obama's AIPAC speech – the full text |

Barack Obama 

President Obama made an impressive case today at AIPAC.  He defended American policy toward Israel and Palestinian statehood more effectively than I have ever heard an American president do.  I say this as someone who believes that we suffer from inability to say straight that there is a deep flaw in Israeli democracy - the 45 year occupation of the west bank. 

In an ideal world Jews and Palestinians would have a unified state with equal rights for all, and a firm commitment to mutual respect.  But neither people seems able to do what Tony Judt believed to be the only wise course.  Side by side is the best we  can achieve now, as Obama said today, linking the Israelis, Americans and Palestinians through a common belief in self-determination.

And he stood up to the hawks today, describing as "loose talk" the drumbeat for war with Iran by the Israeli lobby, the Republican presidential candidates, and "serious" people.   - GWC
Obama's Aipac speech –the full text | World news | Barack Obama, March 4, 2012 - Address to American Israel Political Action Committee.
"Iran's leaders should understand that I do not have a policy of containment; I have a policy to prevent Iran from obtaining a nuclear weapon. And as I have made clear time and again during the course of my presidency, I will not hesitate to use force when it is necessary to defend the United States and its interests.
Moving forward, I would ask that we all remember the weightiness of these issues, the stakes involved for Israel, for America, and for the world. Already, there is too much loose talk of war. Over the last few weeks, such talk has only benefited the Iranian government, by driving up the price of oil, which they depend on to fund their nuclear program. For the sake of Israel's security, America's security and the peace and security of the world, now is not the time for bluster. Now is the time to let our increased pressure sink in and to sustain the broad international coalition we have built. Now is the time to heed the timeless advice from Teddy Roosevelt: Speak softly; carry a big stick. And as we do, rest assured that the Iranian government will know our resolve and that our coordination with Israel will continue."'via Blog this'

Zhou Youguang - creator of pinyin -

Zhou Youguang is 106 years old - and he thinks and writes clearly still. 54 years ago he transformed the lives of all who write Chinese by leading the group that developed the pinyin phonetic alphabet for Mandarin Chinese. Today we use the roman alphabet to input text messages, email, and almost everything we write in Chinese. Type the roman letters that approximate the sound and a pop-up array of 汉字 appears on your computer screen or smart phone!
A Voice of Dissent in China That Took Its Time -

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Contraception: Prof. Louise Trubek was a plaintiff in first challenge in Connecticut

Prof. Louise G. Trubek - pioneer
Prof. Louise Trubek was the first named plaintiff in the contraception rights lawsuit that led to Griswold v. Connecticut, which enunciated the right to privacy.  While a law student at Yale in 1957 she and her husband were the only plaintiffs who sued in their own names. All others used pseudonyms  (John Doe, Paul Poe, etc.)   She tells her story here in the Times. - GWC
Contraception War Goes On -
by Louise Trubek
"Fifty-five years ago, I had an opportunity to take a stand in favor of the right of women to control their fertility — and I did so through the courts.

It was 1957, and fresh out of the University of Wisconsin I enrolled in the Yale Law School — one of only six women in my graduating class. In my second year at Yale, several of our professors asked my husband and me to join a lawsuit challenging Connecticut’s birth-control law, which outlawed the sale and use of contraceptive materials and prohibited a doctor from prescribing birth control even to married women. One goal of the lawsuit was to remove the statutory obstacle to opening Planned Parenthood clinics in Connecticut so that poor families could have access to family-planning services."

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Saturday, March 3, 2012

Romney backed individual mandate in 2009 Op-Ed

In July 2009 Mitt Romney criticized the Affordable Care Act while defending the Massachusetts plan because it had, yes, an individual mandate. - GWC
by Mitt Romney
"Our experience also demonstrates that getting every citizen insured doesn't have to break the bank. First, we established incentives for those who were uninsured to buy insurance. Using tax penalties, as we did, or tax credits, as others have proposed, encourages "free riders" to take responsibility for themselves rather than pass their medical costs on to others. This doesn't cost the government a single dollar. Second, we helped pay for our new program by ending an old one — something government should do more often. The federal government sends an estimated $42 billion to hospitals that care for the poor: Use those funds instead to help the poor buy private insurance, as we did."

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Obama to Iran and Israel: 'As President of the United States, I Don't Bluff' - Jeffrey Goldberg - International - The Atlantic

President Barack Obama sees the Iranian nuclear ambitions as a non-proliferation issue: that Arab countries would feel the need to go nuclear if the Persians got a nuclear weapon. The unspoken gorilla in the room is that the Israelis are already a nuclear power (wink wink). That inevitably drives the Iranians - as does U.S. hostility and Persian national pride. I think the whole thing is madness. Whoever actually used nuclear weapons would be a pariah and incalculable suffering would be inflicted on the attackers in retaliation. We are the only country that has ever used nuclear weapons. And we haven't dared to do it again. The whole nuclear deterrence theater- "mutual assured destruction" is an elaborate, costly bluff. Unfortunately they COULD be used and the safest thing is to move seriously toward nuclear disarmament. - GWC
Obama to Iran and Israel: 'As President of the United States, I Don't Bluff' - Jeffrey Goldberg - International - The Atlantic:
President Obama: "In addition to the profound threat that [a nuclear Iran] poses to Israel, one of our strongest allies in the world; in addition to the outrageous language that has been directed toward Israel by the leaders of the Iranian government -- if Iran gets a nuclear weapon, this would run completely contrary to my policies of nonproliferation. The risks of an Iranian nuclear weapon falling into the hands of terrorist organizations are profound. It is almost certain that other players in the region would feel it necessary to get their own nuclear weapons. So now you have the prospect of a nuclear arms race in the most volatile region in the world, one that is rife with unstable governments and sectarian tensions. And it would also provide Iran the additional capability to sponsor and protect its proxies in carrying out terrorist attacks, because they are less fearful of retaliation."

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Thursday, March 1, 2012

Andrew Breitbart, 1969-2012—David Frum - The Daily Beast

Andrew Breitbart
David Frum speaks ill of the dead. - GWC
Andrew Breitbart, 1969-2012—David Frum - The Daily Beast: "“Of the dead, speak nothing but what is good.”
It’s an ancient rule and a wise one, but one that does not do justice to the life and career of Andrew Breitbart, dead today aged 43.
It is impossible to speak nothing of a man who traced such a spectacular course through the contemporary media.
But to speak only “good” of Andrew Breitbart would be to miss the story and indeed to misunderstand the man"

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Civil Rights Group Calls Judge's Racist Obama Email 'Crude, Demeaning' | TPM Livewire

Civil Rights Group Calls Judge's Racist Obama Email 'Crude, Demeaning' | TPM Livewire:
"Wade Henderson, president and CEO of The Leadership Conference on Civil and Human Rights, issued this statement about the racist email sent out by Montana federal judge Richard Cebull:

The racist email sent by U.S. District Judge Richard Cebull is inexcusable and raises serious questions about his integrity, judgment and impartiality. His conduct should be thoroughly investigated and appropriately sanctioned. The content of the email is crude, demeaning and extremely troubling for a government official whose sole job is to dispense justice.

The legitimacy of our courts depends upon the public’s confidence in those who serve on the bench to be fair and impartial. Judge Cebull has severely undermined that confidence by his actions, which call into question his ability to interpret and apply the law in a fair and impartial manner."

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Torts Today: BP settlement talks collapse, sources say (Updated) | Loren Steffy | a blog

Torts Today: BP settlement talks collapse, sources say (Updated) | Loren Steffy | a blog:

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