Monday, December 31, 2012

John Steele's Top Ten Legal Ethics Issues 2012

John Steele’s Top Ten Legal Ethics issues - 2012

Here they are - Letterman style.  For the story behind the headlines and helpful links go to the post above.  And follow the stories at  Legal Ethics Forum.  John is the driving force there.  And a great resource it is.  - GWC


1. The Supreme Court of the United States (SCOTUS) expanded its application of constitutional standards in the context of critical pre-trial processes in criminal matters, such as plea bargaining and discovery.

2. The ABA’s 20/20 Commission proposed several amendments to the Model Rules and related policies in August, and the House of Delegates approved all of them.

3. The outside ownership of law firms took a big step forward in the UK but stalled in the USA.

4. Politics continued to swirl on the issue of recusal by SCOTUS justices.

5. Our legal education system saw even more turmoil this year as it adjusts to the new normal.

6. Ethics issues kept arising in the criminal prosecution of George Zimmerman.

7. In about 300 jurisdictions, debt collectors used the local District Attorney’s stationary to send out legal warnings and demand payments.

8. There was continued fall-out from the implosion of the Dewey law firm.

9. Prosecutorial misconduct was in the headlines.

10. Congress cited the Attorney General, Eric Holder, for contempt after the assertion of privilege as to documents related to the ATF’s “Fast and Furious” operation.

Sunday, December 30, 2012

National People’s Congress Standing Committee Decision concerning Strengthening Network Information Protection | China Copyright and Media

The new Chinese internet control measure is in English.  Global times reports on the NPC decision as one to strengthen privacy.  It appears to do that.  But its measure compelling shutting down illegal content will prompt fear in many that discussion of "sensitive" topics will be more vigorously quashed.  The measure states that network service providers "upon discovering the issuance or transmission of information prohibited by law or regulation it shall immediately cease transmission of said information, and adopt measures to dispose of it, such as removing it, retain relevant records, and report it to the relevant agency."  The language is  harmless.  It is the breadth of information that may be "prohibited by law or regulation" that inspires concern.  The CP's prime self-inflicted wound, in my opinion,  is its penchant for secrecy which obstructs the ability of citizens to participate knowledgeably in the affairs of the country. - GWC
National People’s Congress Standing Committee Decision concerning Strengthening Network Information Protection | China Copyright and Media
A translation and the original text are provided HERE by Fei Chang Dao, a pro-free speech website.
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Obama wins reelection with 5 million vote margin 51% - 47% - Cook Political Report

Map PlaceholderPresident Obama won re-election by a 4 % margin (51-47) in the popular vote total.  That's a bit shy of 5 million votes over challenger Mitt Romney (65 million to 60 million +/-).  For details go to The Source: Dave Wasserman - Cook Political Report 2012 National Popular Vote Tracker - Google Docs 'via Blog this'

Friday, December 28, 2012

Tragedy's Legacy — New England Journal of Medicine

Tragedy's Legacy — New England Journal of Medicine :

by Garen J. Wintemute, M.D., M.P.   December 26, 2012
"Sandy Hook, Oak Creek, Aurora, Virginia Tech, Columbine: “it can't happen here” places where terrible things did happen and 95 people died. Contrary to widespread perception, however, such events are uncommon. Their frequency is not increasing, and they account for only a small fraction of firearm-related deaths and injuries. On average, 88 Americans died every day from firearm violence in 2011, and another 202 were seriously injured. In 2012, for the first time, there will probably be more firearm-related homicides and suicides than motor vehicle traffic fatalities.
The United States has become an extreme example of what could well be termed “global gunning.” With less than 5% of the world's population, we own more than 40% of all the firearms that are in civilians' hands: 250 million to 300 million weapons, nearly as many as we have people, and they are not going away anytime soon. We have made social and policy decisions that, with some important exceptions, provide the widest possible array of firearms to the widest possible array of people, for use under the widest possible array of conditions.
The most egregious policies have been enacted at the state level — “Stand Your Ground” laws, for instance, which have been used to legitimize what many people still call murder. Justice Louis Brandeis rightly praised the states as the laboratories of our democracy, but in some of them, experimentation with firearm policy has taken a frightening turn.
We are paying the price of those decisions. Too often, our children and grandchildren are paying it for us. Payments will continue. Can we do anything to reduce them? I believe the answer is yes."

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Remarks by the President at the Funeral Service for Senator Daniel Ken Inouye | The White House

President Obama's eulogy for Senator Ken Daniel Inouye was remarkable for its personal character.  He tells of the influence Sen. Inouye had on him as a young boy.  raveling on "the mainland" with his mother, stayiing in motels, his mother was glued to the Watergate hearings.  Sen. Inouye played a prominent role and he impressed the young Obama.  - GWC
Remarks by the President at the Funeral Service for Senator Daniel Ken Inouye | The White House:

I think it's fair to say that Danny Inouye was perhaps my earliest political inspiration.  And then, for me to have the privilege of serving with him, to be elected to the United States Senate and arrive, and one of my first visits is to go to his office, and for him to greet me as a colleague, and treat me with the same respect that he treated everybody he met, and to sit me down and give me advice about how the Senate worked and then regale me with some stories about wartime and his recovery -- stories full of humor, never bitterness, never boastfulness,  just matter-of-fact -- some of them I must admit a little off-color.  I couldn’t probably repeat them in the cathedral.  (Laughter.)  There’s a side of Danny that -- well.
Danny once told his son his service to this country had been for the children, or all the sons and daughters who deserved to grow up in a nation that never questioned their patriotism.  This is my country, he said.  Many of us have fought hard for the right to say that.  And, obviously, Rick Shinseki described what it meant for Japanese Americans, but my point is, is that when he referred to our sons and daughters he wasn’t just talking about Japanese Americans.  He was talking about all of us.  He was talking about those who serve today who might have been excluded in the past.  He’s talking about me.
And that’s who Danny was.  For him, freedom and dignity were not abstractions.  They were values that he had bled for, ideas he had sacrificed for, rights he understood as only someone can who has had them threatened, had them taken away.
The valor that earned him our nation’s highest military decoration -- a story so incredible that when you actually read the accounts, you think this -- you couldn’t make this up.  It’s like out of an action movie.  That valor was so rooted in a deep and abiding love of this country.  And he believed, as we say in Hawaii that we’re a single ‘ohana -- that we're one family.  And he devoted his life to making that family strong.

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Thursday, December 27, 2012

The N.R.A. at the Bench - Linda Greenhouse -

The NRA has effective veto power over federal judges
If you have any doubt about the NRA's clout in blocking federal judicial nominees not likely to do its will, read this account by Linda Greenhouse.  Minority leader Mitch  McConnell uses their ratings as a wedge to control his members by threatening their NRA seals of approval.  - GWC
The N.R.A. at the Bench - by Linda Greenhouse
"It is totally unacceptable for the N.R.A., desperate to hang on to its mission and its members after achieving its Second Amendment triumph at the Supreme Court four years ago, to be calling the tune on judicial nominations for an entire political party. Free the Republican caucus. Follow Lisa Murkowski’s lead. Recognize a naked power play for what it is. Voters who think they care about the crisis of gun violence in America are part of the problem, not the solution – they are enablers if they aren’t willing to help their elected representatives cast off the N.R.A.’s chains. Call for an end to the cowardly filibuster against Caitlin Halligan, whose nomination the president resubmitted in September. The next time a senator announces opposition to a judicial nominee, demand something other than incoherent mumbo-jumbo. Tell the senator to fill in the blank: “I oppose this nominee because ____.” If there’s an answer of substance, fine. That’s advise-and-consent democracy. But if, upon inspection, the real answer is “because the N.R.A. told me to,” we have a problem. Based on these last few years, I think we do." 'via Blog this'

Sunday, December 23, 2012

JAMA: End Ban on CDC Gun Control Studies

 I am shocked to learn that Congress has blocked  CDC  funding of studies on gun control. Read this JAMA opinion piece.  Willful ignorance obstructs effective regulation.   - gwc
Arthur L. Kellermann, MD, MPH; Frederick P. Rivara, MD, MPH
Journal of the American Medical Association -  December 21, 2012
"Injury prevention research can have real and lasting effects. Over the last 20 years, the number of Americans dying in motor vehicle crashes has decreased by 31%.1 Deaths from fires and drowning have been reduced even more, by 38% and 52%, respectively.1 This progress was achieved without banning automobiles, swimming pools, or matches. Instead, it came from translating research findings into effective interventions.

Given the chance, could researchers achieve similar progress with firearm violence? It will not be possible to find out unless Congress rescinds its moratorium on firearm injury prevention research. Since Congress took this action in 1997, at least 427 000 people have died of gunshot wounds in the United States, including more than 165 000 who were victims of homicide.1 To put these numbers in context, during the same time period, 4586 Americans lost their lives in combat in Iraq and Afghanistan.10

The United States has long relied on public health science to improve the safety, health, and lives of its citizens. Perhaps the same straightforward, problem-solving approach that worked well in other circumstances can help the nation meet the challenge of firearm violence. Otherwise, the heartache that the nation and perhaps the world is feeling over the senseless gun violence in Newtown will likely be repeated, again and again."

Saturday, December 22, 2012

An Epidemic of Gun Violence - NJ Law Journal Editorial Board

Editorial, December 21, 2012
An Epidemic of Gun Violence
by the New Jersey Law Journal Editorial Board
(c) ALM Media, LLC  All rights reserved

In Heller v. District of Columbia (2008), a Supreme Court majority held that the Second Amendment protects "the right of law-abiding, responsible citizens to use arms in defense of hearth and home." Unless we amend the Constitution that settles the question — the right is personal, no link to a militia required. Gun control skeptics were elated. Some — like 7th Circuit Judge Richard Posner, a sometimes maverick conservative, have gone even farther. Recently he wrote for a divided circuit panel in Moore v. Madigan (2012) that a rational basis was not enough to save an Illinois statute that prohibits carrying a gun for self-defense outside the home. Of the Second Amendment, Posner wrote:
"[O]ne doesn't have to be a historian to realize that a right to keep and bear arms for personal self-defense in the eighteenth century could not rationally have been limited to the home. Suppose one lived in what was then the wild west, the Ohio Valley for example (for until the Louisiana Purchase the Mississippi River was the western boundary of the United States), where there were hostile Indians. One would need from time to time to leave one's home to obtain supplies from the nearest trading post, and en route one would be as much (probably more) at risk if unarmed as one would be in one's home unarmed."
Such thinking has brought us to the current pass: Our personal arsenals are built on a legal foundation devised for a state of war, to protect settlers committed to occupy the lands of an aboriginal people. The Illinois case is not over. The Legislature has been given 180 days to save its statute. It is imperative that we turn away from this constitutionalized state of war. It has made arsenals available to the criminal and the insane who have brought assault rifles to our classrooms, movie theaters and shopping malls. The legal foundation of a new approach is the police power, its name is regulation, and public health and safety is the objective. Gun safety, not gun control, is a good way to think about it. And it has worked before.
Much of the impetus for automobile safety in the late '50s and early '60s came from public health studies detailing and publicizing the carnage on the highways. In 1959, Dr. C. Hunter Shelden wrote in the Journal of the American Medical Association: "The doors, seats, cushions, knobs, steering wheel and even the overhead structure are so poorly constructed from the safety standpoint that it is surprising anyone escapes from an automobile accident without serious injury."
Daniel Patrick Moynihan — a sociologist who had studied traffic safety — cited the study in his first published article, "Epidemic on the Highways." He combated the National Safety Council's safe-driver approach with a safer cars campaign. Ralph Nader's book, Unsafe at Any Speed, spurred popular calls for action. By focusing on safer cars rather than safer drivers, we made enormous strides in auto safety in the next decades. With legal innovations like strict products liability we spurred safer designs, legislation mandated advances like three-point seat belts, and penalties helped to change public behavior so that most people actually use them.
A strict ban on assault weapon possession other than by military forces is a good place to start a gun safety campaign. Possession does not make us safer. An until-now little noticed 2009 study by University of Pennsylvania epidemiologist Charles Branas and colleagues showed that in Philadelphia, individuals in possession of a gun were 4.46 times more likely to be shot in an assault than those not in possession. Among gun assaults where the victim had at least some chance to resist, the odds increased to 5.45. In a civil society such an evidence-based approach can help to combat the magical thinking that more guns will make us safer.
We are no longer at war at home. We reject the state of war logic of Moore v. Madigan. Weapons must be "well regulated." We should be hard at work on effective regulatory strategies to reduce gun violence and to protect the public health and welfare. The problem is nationwide and calls for both state and federal responses. One immediate response is to restore and strengthen the federal assault weapons ban, limit large capacity magazines and tighten background checks.
Board chairman Rosemary Alito recused from this editorial.

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Letter of Resignation Sent by George H.W. Bush to Rifle Association - New York Times

Former President George H.W. Bush resigned from the National Rifle Association in 1995 - citing the organization's appalling response to the Oklahoma City bombing.  It is sobering to reflect on the power this extremist outfit has achieved. - gwc
Letter of Resignation Sent By Bush to Rifle Association - New York Times
"I was outraged when, even in the wake of the Oklahoma City tragedy, Mr. Wayne LaPierre, executive vice president of N.R.A., defended his attack on federal agents as "jack-booted thugs." To attack Secret Service agents or A.T.F. people or any government law enforcement people as "wearing Nazi bucket helmets and black storm trooper uniforms" wanting to "attack law abiding citizens" is a vicious slander on good people...: George H. W. Bush, May 3 1995 'via Blog this'

Law School Marketing and Legal Ethics by Ben Trachtenberg :: SSRN

Law professors prepare students for a world in which the teacher has not succeeded.  The principal qualification of most law professors is to have been a good student.  Others - I include myself - had some impact in the practice of law.  My teaching and writing grows from that.  But neither credential represents success in the world our students will be entering.  I began my career with a debt of $1,500 (my parents paid for college, my Peace Corps termination pay paid for grad school, and law school at Rutgers was practically free), Then I entered a world of trade unions and community organizations in the days before cable TV, before the internet, before PC's or even fax machines.  
A community-based law practice was a practical, even obvious route for a man without a plan. So I achieved self-sufficiency quickly while self-employed in a world so different that it leaves me unsure how to advise students who will enter a world of virtual communication, where unions scarcely exist, and promotional messages are tweeted rather than mailed, where people text rather than call, and personal injury, workers comp, SSD, house closings, and advice to community groups and small businesses are not likely to enable one to service a start-up debt of $125,00.

In these circumstances it is important to the students, and the profession, that law schools be scrupulous in reporting their graduates post-graduate paths.  In this heated debate about the economics of legal education there are careful commentators like Brian Tamanaha in Failing Law Schools, and intemperate voices like Paul Campos at Inside the Law School Scam.  By what standard should the professoriate be judged?  By that of  lawyers' rules of professional conduct governing attorney advertising, says Ben Trachtenberg, a professor at the University of Missouri law school.  Sounds right to me.  - GWC   h/t Steven Gillers at Legal Ethics Forum
Law School Marketing and Legal Ethics by Ben Trachtenberg :: SSRN:
Law schools have misled prospective students for years about the value of legal education. In some cases, law school officials have engaged in outright deceit, knowingly spreading false information about their schools. More commonly, they have presented statistics—especially those concerning the employment outcomes of law graduates—in ways nearly guaranteed to confuse readers. These deceptions and sharp practices violate the norms of the legal profession, a profession that scrupulously regulates the advertising of legal services. The deceptions also violate ethical rules prohibiting lawyers from engaging in dishonesty, misrepresentation, and deceit.
This article exposes how pitches aimed at prospective students, including the seemingly straightforward recitation of statistics on law school websites, still paint an unduly rosy picture of the legal employment market. Focusing on Rule 8.4(c) of the Model Rules of Professional Conduct, the article explains that law school officials have exposed themselves to professional discipline, which may offer a solution to the pervasive problem of misleading law school marketing.

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Friday, December 21, 2012

Mass Shootings: The Lynching Parallel - Readers messages - James Fallows - The Atlantic

James Allen's Without Sanctuary is a powerful photo history of lynching in America, those eruptions of murderous rage and morbid curiosity that took the lives of some 3,446 blacks and 1,297 whites who were lynched between 1882 and 1968.  That was the Strange Fruit that grew on Southern trees.   James Fallows has given this post over to a reader's powerful piece comparing today's mass shootings to lynchings in the Jim Crow era. 

Below is just a lede.  I am not sure what to make of the comparison - but READ the piece.  It is compelling. - GWC

Readers on Guns: The Lynching Parallel - James Fallows - The Atlantic:
"Let's begin with a comparison to a previous "uncontrollable" phenomenon of mass American violence: the wave of lynchings in the early 20th century. From a reader in Florida. Emphasis added. - JF
 If you look at the yearly death tolls for mass shootings over the past three decades, they look an awful lot like the yearly death tools from lynchings from, say, 1900 to 1935. They ping pong around from as few as 10 to as many as 100, averaging 40 or 50. The Tuskegee Institute's count is my source for lynchings. Here is the source I used for mass killings. I think you'll find many parallels between lynchings and mass killings. First and foremost is the irrationality of the violence, the notion that it's a uncontrollable condition that comes over the killer or killers. Both are a subset of violence in a violent culture carried out by people not considered professional criminals.  "

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Retire Mandatory Judicial Retirement - NJ Law Journal Editorial Board

Raise the mandatory retirement age to seventy five urges the  Editorial Board of the New Jersey Law Journal.  The State's judiciary has been discouraged by Gov. Chris Christie's setting a political litmus test for nominations for tenure after a seven year term; and by the Republican Governor's unity with the Democratic legislative majority to put on the ballot an amendment to the state's constitution to reduce judicial take-home pay by marked increases in pension and health insurance deductions.  The measure won 80% of the vote in November. - gwc

Retire Mandatory Judicial Retirement:
 ""[J]ustices and judges shall be retired upon attaining the age of 70 years." — N.J. Const. art. VI, §VI, ¶3 
 Why should that be? The citizens of New Jersey have just amended the state constitution to say that judges, like other state employees, should have their pay cut to ease the burden of benefit costs on taxpayers. We opposed the measure but voters had the last word. If judges are to be treated like other employees, perhaps they should be terminable at the expiration of a term or for cause but not compelled to leave the bench upon reaching age 70." 'via Blog this'

Thursday, December 20, 2012

Fed Judge: The conservative case for an assault weapons ban -

Loughner’s Judge Makes Conservative Plea For Gun Control
An AR 15 similar to that used in Tucson, Aurora, and Newtown
Larry Burns is a United States District Judge in Arizona.  He sentenced the shooter of Congresswoman Gabby Giffords and others in Tucsom. -  GWC
The conservative case for an assault weapons ban -
By Larry Alan Burns December 20, 2012
 "Last month, I sentenced Jared Lee Loughner to seven consecutive life terms plus 140 years in federal prison for his shooting rampage in Tucson. That tragedy left six people dead, more than twice that number injured and a community shaken to its core."
Loughner deserved his punishment. But during the sentencing, I also questioned the social utility of high-capacity magazines like the one that fed his Glock. And I lamented the expiration of the federal assault weapons ban in 2004, which prohibited the manufacture and importation of certain particularly deadly guns, as well as magazines that can hold more than 10 rounds of ammunition.The ban wasn't all that stringent — if you already owned a banned gun or high-capacity magazine you could keep it, and you could sell it to someone else — but at least it was something.And it says something that half of the nation's deadliest shootings occurred after the ban expired, including the massacre at Sandy Hook Elementary in Newtown, Conn. It also says something that it has not even been two years since Loughner's rampage, and already six mass shootings have been deadlier.I am not a social scientist, and I know that very smart ones are divided on what to do about gun violence. But reasonable, good-faith debates have boundaries, and in the debate about guns, a high-capacity magazine has always seemed to me beyond them...."

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Wednesday, December 19, 2012

Robert Bork (1927-2012)

Bork as solicitor general executed Nixon's command
to fire Watergate Special Prosecutor Archibald Cox

"It was a very small [poll] tax, it was not discriminatory, and I doubt that it had much impact on the welfare of the nation one way or the other…" - Robert Bork defending a poll tax at his 1987 confirmation hearing - speaking to Sen. Edward Kennedy
Former U.S. Circuit Court Judge Robert Bork was a moralizer given to self-righteous morbid laments.  The West was going to hell - Slouching Toward Gomorrah, America becoming "A country I don't recognize", due to the "Tyranny" of  liberal judges - to cite some of his book titles.  He believed he had been "borked" - savaged like a modern day Thomas More in the Senate Chamber rather than the Tower.  He was Nixon's hatchet man who fired Watergate Special Prosecutor Archibald Cox.  As Solicitor General he demonstrated that he would do the state some service if only the Crown would ask.  

The year his Supreme Court nomination was rejected - 1987 - was also the year of the Iran-Contra Arms for Hostages hearings at which Senators Warren Rudman and Daniel Inouye (both deceased this year)  confronted Col. Oliver North a White House black operative who celebrated his law-breaking as part of the patriot game.

At Bork's confirmation hearings he was memorably confronted by Edward Kennedy who renounced Bork's opposition to civil rights and women's rights.

A short course on what we have been spared by the election of Barack Obama rather than Mitt Romney to whom Bork was senior judicial advisor may be gleaned from this obit by Jeffrey Toobin. - GWC

Jeffrey Toobin - on Robert Bork - New Yorker
"Robert Bork, who died Wednesday, was an unrepentant reactionary who was on the wrong side of every major legal controversy of the twentieth century. The fifty-eight senators who voted against Bork for confirmation to the Supreme Court in 1987 honored themselves, and the Constitution. In the subsequent quarter-century, Bork devoted himself to proving that his critics were right about him all along.Bork was born in 1927 and came of age during the civil-rights movement, which he opposed. He was, in the nineteen-sixties, a libertarian of sorts; this worldview led him to conclude that poll taxes were constitutional and the Civil Rights Act of 1965 was not. (Specifically, he said that law was based on a “principle of unsurpassed ugliness.”) As a professor at Yale Law School, his specialty was antitrust law, which he also (by and large) opposed."
h/t to Brad Delong for both leads
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Tuesday, December 18, 2012

Loose lips - Michelle Bachmann "loves" the AR 15 used in Newtown

"That is a great gun...I love it...What's wrong with a little firepower?" Michelle Bachmann back in the day before her Presidential campaign misfired speaking of the AR 15 Bushmaster - the combat weapon used in the Newtown, Connecticut school massacre.

Pew: Gun control and the gender gap

Machismo lives, the Pew Center reports:
"Women, by 54% to 37%, say that Friday’s shootings at the elementary school reflect broader problems in American society. Men express the opposite view: 51% say that shootings like this are just the isolated acts of troubled individuals.
College graduates (54%) are more likely than those with no more than a high school education (42%) to say that the massacre reflects broader societal problems.
There also are partisan differences in reactions to the tragedy: Democrats, by 54% to 39%, say the shootings reflect broader societal problems. Republicans are divided, with 49% saying such incidents are the acts of troubled individuals, while 45% say they reflect broader problems.
People who have followed news about the shootings very closely are more likely than those who have not to say that they represent broader problems in society (51% vs. 40%)."

Monday, December 17, 2012

Ho hum, another massacre, it's Saturnalia at the Volokh Conspiracy

Today, December 17, 2012 the first of 27 victims funerals began in Newtown, Connecticut.  Leaders all around were reacting to the massacre with pledges to "do something".  But at more guns more safety blogs like the Volokh Conspiracy it was ho hum, just another day at the morgue.  They were celebrating a Volokh tradition - Saturnalia.  Volokh himself was  speculating casually about whether an armed citizenry really can respond to surprise attacks by armed madmen bent on mass murder.  It's just another massacre, after all, nothing really special - especially when compared to the run of the mill shootings in the ghettoes.  Those are surely beyond the reach of the gun control crowd now that the Supreme Court has declared in D.C. v. Heller that possession of a handgun is a personal constitutional right, and Judge Posner in Moore v. Madigan has declared the right to go armed on the streets of Chicago.

Daniel Inouye, 1924-2012 | TPM Editors Blog

Daniel Inouye, 1924-2012 | TPM Editors Blog: A winner of the Congressional medal of Honor. (Read about that at TPM above). The 1987 Iran Contra scandal  hearings were a defining moment in deflating the Reagan myth, exposing a bizarre and lawless operation run from the White House to evade Congressional prohibition of funding for the right wing Nicaraguan guerillas lionized on the right.   I remember when Inouye  stood up to the super-patriot tough guy Col. Oliver North, a key White House operative.  The Senator closed the proceedings, like Mack the Knife he left not a trace of red, as he eviscerated the right wing icon of the moment.   Inouye's closing statement is masterful ironic denunciation.  He began with praise and then proceeded to express his deep disappointment that this "new American hero" had violated his oath "a Cadet does not lie cheat or steal". - GWC
Inouye begins his closing statement.
Chairman INOUYE: I believe during the past week, we have participated in creating and developing, very likely, a new American hero. Like you, who as one has felt the burning sting of bullet and shrapnel and heard the unforgettable and frightening sounds of incoming shells, I salute you, sir, as a fellow combat man. And the rows of ribbons that you have on your chest will forever remind us of your courageous service and your willingness—your patriotic willingness to risk your life and your limb. I am certain the life and burdens of a hero will be difficult and heavy, and so, with all sincerity, I wish you well as you begin your journey into a new life.
However, as an interested observer, and as one who has participated in the making of this new American hero, I found certain aspects of your testimony to be most troubling.
The full text and video are HERE.

Ken Burns interviewed Senator Inouye about the war and the japanese internment for his 2007 movie The War.

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Joe Scarborough - let Newtown be the turning point

MSNBC's Morning Joe Scarborough, a conservative former Congressman with a 100% NRA rating is jumping ship.

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The Bracing Political Reality of Gun Control - Jonathan Chait- New York Magazine

Gun violence is a broad epidemic enabled by the fact that so many Americans consider gun possession to be a human right.  And they are backed by he Supreme Court and a Republican majority in the House of Representatives.  Prepare for the long haul.  - GWC

The Bracing Political Reality of Gun Control
by Jonathan Chait
New York Magazine

 I fully share the utter emotional devastation that is naturally metastasizing into broad hopes of political reform. It is natural to think that the emotional magnitude of the massacre must therefore have some proportion to its magnitude as a political event. But this is just as untrue as the comforting fallacy that every great tragedy must do some good. Some things have changed since Friday, but most have not.
The first obstacle still standing is that the vast bulk of American gun violence would not be stopped by banning military-style weapons, but would require not only halting the sale but probably also confiscating regular handguns. (Rifles of all kinds accounted for just 323 of the 12,664 murders victims last year.) Such a step would run into a wall of massive opposition from the public, which opposes a general handgun ban by about a three to one margin, but also the Supreme Court, which has interpreted the Second Amendment not as the preservation of militias but as a right to private gun ownership, and has thus struck down handgun bans.
So we’re left for the foreseeable future with far more limited measures, like more extensive background checks and bans on semiautomatic weapons or large ammunition clips. Such steps command strong public support. But, worthwhile though they may be, we are not even talking about ending mass shootings but attempting to make them a less frequent and a bit less deadly — worthwhile reforms, but not transformative ones.

Sunday, December 16, 2012

President Obama: "These tragedies must end."

President Obama speaks at the memorial for the victims of the December 14, 2012 massacre at Sandy Hook School, Newtown, Connecticut. (full text)
 “Are we prepared to say that such violence visited on our children year after year after year is somehow the price of our freedom?”

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Investigating the Link Between Gun Possession and Gun Assault

Much of the impetus for automobile safety in the late 50's and early 60's came from public health studies detailing and publicizing the carnage on the highways.  In 1959 Dr. C. Hunter Shelden wrote in the Journal of the American Medical Association:
“The doors, seats, cushions, knobs, steering wheel and even the overhead structure are so poorly constructed from the safety standpoint that it is surprising anyone escapes from an automobile accident without serious injury.”
 Daniel Patrick Moynihan - a sociologist who had studied traffic safety while in the administration of Gov. Averill Harriman - in his first published article Epidemic on the Highways cited such studies to push to make cars safer. He combated the National Safety Council's safe driver approach with a safer cars campaign, as the Federal Highway Administration recounts in its online history.  Ralph Nader's Unsafe at Any Speed spurred popular calls for action.  The public health approach had an impact on how people talked about tort law.  And a young Yale law professor Guido Calabresi capsulized and theorized it in  The Cost of Accidents - recasting tort law as a way to enhance public safety.

Maybe the Newtown tragedy will help us to reduce the magical thinking of the many who suggest that more guns would save lives.  Epidemiologist Charles Branas and colleagues at the University of Pennsylvania in a 2009 study showed that gun possession increases by five your odds of getting shot (or shooting yourself). - gwc
Investigating the Link Between Gun Possession and Gun Assault:


Objectives. We investigated the possible relationship between being shot in an assault and possession of a gun at the time.
Methods. We enrolled 677 case participants that had been shot in an assault and 684 population-based control participants within Philadelphia, PA, from 2003 to 2006. We adjusted odds ratios for confounding variables.
Results. After adjustment, individuals in possession of a gun were 4.46 (P < .05) times more likely to be shot in an assault than those not in possession. Among gun assaults where the victim had at least some chance to resist, this adjusted odds ratio increased to 5.45 (P < .05).
Conclusions. On average, guns did not protect those who possessed them from being shot in an assault. Although successful defensive gun uses occur each year, the probability of success may be low for civilian gun users in urban areas. Such users should reconsider their possession of guns or, at least, understand that regular possession necessitates careful safety countermeasures

'via Blog this'

Friday, December 14, 2012

Newtown Connecticut: When will we ever learn?

“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
Amendment II
Constitution of the United States of America

How many times does Barack Obama want to give eulogies and somber remarks for the pointlessly murdered and maimed?

When will Members of Congress move to Amend that outrageously construed 2d amendment?
"[T]he enshrinement of constitutional rights necessarily takes certain policy choices off the table.  These include the absolute prohibition of handguns held and used for self-defense in the home.  Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem.  That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct."  Antonin Scalia, for the Court in District of Columbia v. Heller (2008)

Thursday, December 13, 2012

Hypocrisy Alert: McCain and Graham on Susan Rice

Susan Rice has submitted a letter withdrawing as a candidate to replace Hillary Clinton.  John McCain"wishes her well" after months of character assassination, and Lindsey Graham who always seems ready to stoop to a new low to appease the Jim DeMint Republican Party of South Carolina "respects her decision".   The most that can be said against Susan Rice - from the right - is that she was a good soldier and stuck to the talking points the National Security Director gave the Ambassador on the Benghazi attacks.  There is a lot that could properly be asked by Congress on that - starting with the outsourcing of  Embassy Security, and the chaotic state of Libya which triumphalism induced the Administration to downplay. 
But none of that rises to the level of denying the President a reasonable amount of discretion in choosing his Secretary of State.  She wasn't high on my list (start with her and her husband's personal investments in Canadian Tar Sands) and her hawkish past.   But on balance the affair is another sign that things are even worse than it looks that the President is not given a reasonably free hand in choosing his most important cabinet secretary.

Law school applicants down 22.4% | Law School Admissions Council

Current Volume—Three-Year Summary | "Three-Year ABA Volume Comparison The following charts report ABA-accredited law school applicants and applications for each of the past three falls. As of 12/07/12, there are 106,608 Fall 2013 applications submitted by 16,241 applicants. Applicants are down 22.4% and applications are down 24.6% from 2012."  The blue line is the current year.
A line chart titled Fall ABA Applicants by Week. The horizontal axis represents months November through August. Along its vertical axis are numbers 0 through 100,000 indicating number of applicants. The line labeled Fall 2011 steadily rises from 19,728 in November to 71,889 in March, then begins to plateau from March until August ending at 78,769. The line labeled Fall 2012 steadily rises from 16,719 in November to 58,983 in March, then begins to plateau from March until August ending at 67,957. The line labeled Fall 2013 increases from 12,728 to 16,241 from November to early December.

'via Blog this'

Wednesday, December 12, 2012

PrawfsBlawg: Benefits of Senior Lecturers

When Dean Rodriguez asked a few days ago what he could do as AALS President to advance the interests of the "professoriate", I commented that he should ask "what can we do to advance the cause of legal education?"  Here's one idea that can narrow the gap between law schools and the profession. - GWC
PrawfsBlawg: Sustainability and the future: Managing teaching resources
by Dan Rodriguez
Dean, Northwestern University School of Law 
(and President-elect of the Association of American Law Schools)

"Law schools have long looked to adjuncts and the occasional recurring lecturer for teaching.  Yet, the wheelhouse for such teaching has more often been clinics and skills-training.  Good sense here; after all, experienced lawyers are wisely deployed to train would-be lawyers and the beat goes on.  However, non-tenure line faculty -- more specifically, lecturers/senior lecturers on long-term contracts with compensation and resources befitting the commitment to regular teaching and a durable investment in student well-being -- is an efficient way to strengthen teaching at law schools which cherish deep connections to practice and, as well, to save costs."

'via Blog this'

NJ Clarifies Permissible Role of Out of State Lawyers

The New Jersey Supreme Court's Committee on the Unauthorized Practice of Law has in Opinion 49 clarified issues of cross-border/multi-jurisdictional practice under the State's version of RPC 5.5. The Committee replied expansively to an inquiry - `Can an out-of-state lawyer representing an out-of-state client in a commercial real estate transaction for the purchase of commercial real estate in New Jersey negotiate the terms of the transaction, and prepare the contract and other related documents?'

The short answer is NO.  "Preparing real estate sale and lease contracts for a third person is the practice of law."  But the `third person' qualification leaves in-house counsel free to do that - assuming compliance with NJ's limited licensure rule.

And New Jersey's version of ABA Model Rule 5.5 contains a number of exceptions to the broad "NO", the last of which does not appear in the ABA rule and is particularly noteworthy - the "occasional", non-recurring representation and the Rule's consideration of the client's interests:
RPC5.5 (b)(3)

  • i) the lawyer engages in the negotiation of the terms of a transaction in furtherance of the lawyer's representation on behalf of an existing client in a jurisdiction in which the lawyer is admitted to practice and the transaction originates in or is otherwise related to a jurisdiction in which the lawyer is admitted to practice;(ii) the lawyer engages in representation of a party to a dispute by participating in arbitration, mediation or other alternate or complementary dispute resolution program and the services arise out of or are reasonably related to the lawyer's practice in a jurisdiction in which the lawyer is admitted to practice and are not services for which pro hac vice admission pursuant to R. 1:21-2 is required;(iii) the lawyer investigates, engages in discovery, interviews witnesses or deposes witnesses in this jurisdiction for a proceeding pending or anticipated to be instituted in a jurisdiction in which the lawyer is admitted to practice;(iv) the out-of-state lawyer’s practice in this jurisdiction is occasional and the lawyer associates in the matter with, and designates and discloses to all parties in interest, a lawyer admitted to the Bar of this State who shall be held responsible for the conduct of the out-of-State lawyer in the matter; or(v) the lawyer practices under circumstances other than (i) through (iv) above, with respect to a matter where the practice activity arises directly out of the lawyer's representation on behalf of an existing client in a jurisdiction in which the lawyer is admitted to practice, provided that such practice in this jurisdiction is occasional and is undertaken only when the lawyer's disengagement would result in substantial inefficiency, impracticality or detriment to the client.
    Though the "occasional" limitation is not to be toyed with, it does enable an out of state client to enter the state with the confidence that comes from using its customary lawyers. Who, we can hope, will recognize the wisdom of hiring local counsel who are sufficiently immersed in the practice to assure that all goes well.  
    This is not to encourage casual practice.  Lawyers who seek to take advantage of the safe harbor provisions must register with the Supreme Court, pay fees, and designate the clerk of the court as agent for service of process.

h/t Nicole Hyland - Legal Ethics Forum

Life without parole - for cocaine possession NY Times

Stephanie George - doing life without
parole for possession of cocaine
The depth of the senselessness and racism of America's punitive criminal justice system never ceases to shock me.  We cannot arrest our way out of the drug problem.  We have 25% of the world's prisoners.  The catastrophe of imprisonment of Black men is rarely noted.  James Tierney begins a new series in the Times on our self-destructive sentencing system.  There are some hopeful signs: such as conservatives who don't like government generally turning their skepticism to the prison-industrial complex through groups like Right on Crime which seek to reduce incarceration.

Tuesday, December 11, 2012

The fighting Irish

An 1863 grand requiem mass at St. Patrick’s Cathedral in New York for the fallen soldiers of the Irish Brigade
Requiem Mass, 1863 St. Patrick's Cathedral
for the dead of the Irish Brigade

The Irish Brigade distinguished itself in the Civil War, Terry L. Jones reminds us in today's Times that 140,000 Irish-born men served in the Union Army:
"The Irish Brigade suffered the third-highest number of battlefield casualties of any Union brigade. Of the 7,715 men who served in its ranks, 961 were killed or mortally wounded, and approximately 3,000 were wounded. The number of casualties was more men than ever served in its ranks at any one time. As a testament to the Irishmen’s bravery, 11 of the unit’s members were awarded the Medal of Honor."

The Bishop sent the volunteers off to war with his blessing at St. Patrick's Cathedral and prayed for the dead. But many were embittered by the draft and the savage war, despite its justice and necessity. Having fled poverty and oppression "a gun was shoved into our hands, saying Paddy you must go and fight for Lincoln". Alas they learned "there is nothing here but war where the murdering cannons roar", as Mary Black sings in Paddy's Lamentation, part of the soundtrack of the great PBS series Long Journey Home.

Saturday, December 8, 2012

Off label Drug Promotion is Free Speech - 2d Circuit

It is going to take some time for me to explore the implications of this opinion by local hero Denny Chin, Circuit Judge, who has overturned a conviction on ground that promoting off-label use of a drug is protected by the First Amendment.  Judge Debra Ann Livingston dissents - an opinion I almost instinctively accept.  Maybe there is a deeper logic, but I fear it is Citizens United redux - "drug companies are people too".  - GWC
United States of America v. Alfred Caronia

Chin, Circuit Judge
"Defendant-appellant Alfred Caronia appeals from a judgment of conviction entered in the United States District Court for the Eastern District of New York (Eric N.Vitaliano, J.) on November 30, 2009, following a jury trial at which Caronia was found guilty of conspiracy to introduce a misbranded drug into interstate commerce, a misdemeanor violation of 21 U.S.C. §§ 331(a) and 333(a)(1). Specifically, Caronia, a pharmaceutical sales representative, promoted the drug Xyrem for "off-label use," that is, for a purpose not approved by the U.S. Food and Drug Administration (the "FDA").  Caronia argues that he was convicted for his speech -- for promoting an FDA-approved drug for off-label use -- in violation of his right of free speech under the First Amendment.  We agree." 

Colbert: Filibuster Reform

Friday, December 7, 2012

Dan Froomkin: How the Mainstream Press Bungled the Single Biggest Story of the 2012 Campaign

"I can't recall a campaign where I've seen more lying going on -- and it wasn't symmetric," said [Norman] Ornstein, a scholar at the conservative American Enterprise Institute who's been tracking Congress with Mann since 1978. Democrats were hardly innocent, he said, "but it seemed pretty clear to me that the Republican campaign was just far more over the top."Lies from Republicans generally and standardbearer Mitt Romney in particular weren't limited to the occasional TV ads, either; the party's most central campaign principles -- that federal spending doesn't create jobs, that reducing taxes on the rich could create jobs and lower the deficit -- willfully disregarded the truth."It's the great unreported big story of American politics," Ornstein said."If voters are going to be able to hold accountable political figures, they've got to know what's going on," Ornstein said. "And if the story that you're telling repeatedly is that they're all to blame -- they're all equally to blame -- then you're really doing a disservice to voters, and not doing what journalism is supposed to do."

'via Blog this'

Obama on the power of words | xpostfactoid

Andrew Sprung is a close observer of Obama's rhetoric.  Click through to see how he develops his analysis.  At the base of it is Obama's insight - drawn from his experience as a community organizer - that reliable change must be at the bottom, not the top. - GWC
Obama on the power of words | xpostfactoid:
by Andrew Sprung
 "One moment in the formation of Obama's habit of mind that David Maraniss spotlights in his magisterial biography occured in high school: Barry was not the most talkative student in her class, [English teacher Barbara Czurles-Nelson] recalled. He would sit near the back of the room, relaxed, waiting for his opening in the conversation. One day they were dealing with a philosophical question about what people should most fear. The answers included loneliness, death, hell, and war. Then Barry straightened up. That was the sign that he was ready to participate, Nelson thought, when he was sure to sharpen the class discussion.  “Words,” he said. “Words are the power to be feared most.… Whether directed personally or internationally, words can be weapons of destruction” (pp. 299-300, Kindle Edition). Though the emphasis is on danger, the resemblance is still striking to the moment that first fully impressed on me Obama's potential to be the transformative president he said he wanted to be, when he again spoke of the power of words. It was in a debate with Hillary, between  the Iowa and New Hampshire primaries, Jan. 5, 2008:......" 'via Blog this'

Thursday, December 6, 2012

He Weifang - liberal Chinese law prof on tour in U.S. - Brookings Instituion

Peking University law professor He Weifang is on a lecture tour in the U.S.  I heard him when he spoke recently at the Winston Lord Roundtable at the Council on Foreign Relations.  A fuller presentation of his views can be seen HERE in a C-Span broadcast at which he was joined by Associate Justice Stephen Breyer.
He is a signer of Charter 08, the liberal manifesto which landed Nobel Prize winner Liu Xiaobo in prison.  He openly urges the Chinese CP become like a European Social Democratic party.  I don't know why one is behind bars and the other behind a podium.  I do see that there is a fragile peace in China - that advocacy of western legal democracy is hazardous to one's career, at least.

Wednesday, December 5, 2012

Gideon at 50

Gideon at Fifty  - Stein Center News December 2012
by George Conk

Literature regarding lawyers’ professional responsibility often begins with lilting exhortations to zeal, loyalty, and confidentiality, but we see too little reference to competence. Yet without it, all the good will and loyalty in the world will be of little use to the client and to the social goal of justice for all. Competence, however, requires skill and resources. 
Fifty years ago, the United States Supreme Court appointed a distinguished lawyer and future Associate Justice, Abraham Fortas, to take on the representation of Clarence Gideon, a man of little virtue, who had in a handwritten petition to the Court asserted that the Sixth Amendment of the Constitution required the government to furnish him with a lawyer for his defense in a criminal trial. It didn’t—not yet. But the Court soon declared in Gideon v. Wainwright, 372 U.S. 335 (1963), that Gideon was right.Gideon’s Trumpet—as Anthony Lewis titled his book—called on the state and federal government, as well the courts, to fulfill this mandate.
The Supreme Court added the requirement that Gideon-mandated counsel be competent inMcMann v. Richardson, 397 U.S. 759 (1970). Strickland v. Washington, 466 U.S. 668 (1984), afforded a remedial test:  representation falling short of the Sixth Amendment’s adversarial vision at each stage of a criminal proceeding would lead to reversal if the shortcoming likely affected the outcome.
But principles alone do not do the job. Government responded, but the response fifty years later is often insufficient to assure a competent defense of every criminal defendant. The National Right to Counsel Committee’s comprehensive report, "Justice Denied: America’s Continuing Neglect of our Constitutional Right to Counsel" [pdf] (April 2009), found on page xi that
despite the fact that funding for indigent defense has increased during the past 45 years since the Gideon decision, there is uncontroverted evidence that funding still remains woefully inadequate and is deteriorating in the current economic difficulties that confront the nation. Because of insufficient funding, in much of the country, training, salaries, supervision, and staffing of public defender programs are unacceptable for a country that values the rule of law. Every day, the caseloads that defenders are asked to carry force lawyers to violate their oaths as members of the bar and their duties to clients as set forth in rules of professional conduct.
New Jersey made the decision early to establish a statewide Office of the Public Defender. The Public Defender serves a five-year term, insulating the 450 lawyer statewide organization. The PD’s strength can be seen in its 25-year record in capital defense. The PD participated in every capital case—from legislative restoration in 1982 to repeal in 2007—and not a single person was executed of the sixty sentenced to death.  
Unfortunately the situation in neighboring New York and Pennsylvania is not so good. Those two states have relied on county, not state funding. In Hurrell Harring v. New York, 930 N.E.2nd 217 (2010)—a case that the Stein Center joined as amicus curiae—the Court of Appeals allowed an action by defendants alleging inadequate representation to proceed. The Court majority (on page 227) decried inadequate funding yielded by the county-based system, saying
The severe imbalance in the adversary process that such a state of affairs would produce cannot be doubted. Nor can it be doubted that courts would in consequence of such imbalance become breeding grounds for unreliable judgments. Wrongful conviction, the ultimate sign of a criminal justice system's breakdown and failure, has been documented in too many cases. Wrongful convictions, however, are not the only injustices that command our present concern. As plaintiffs rightly point out, the absence of representation at critical stages is capable of causing grave and irreparable injury to persons who will not be convicted. Gideon's guarantee to the assistance of counsel does not turn upon a defendant's guilt or innocence, and neither can the availability of a remedy for its denial.
In Pennsylvania the situation is also deplorable. The exposure of the dreadful corruption of juvenile justice by two now jailed judges in Luzerne County prompted the legislature to commission a new study. Its December 2011 report, "A Constitutional Default: Services to Indigent Criminal Defendants in Pennsylvania" [pdf], concluded on page 103 that the
Kids for Cash scandal showed how failure to maintain professional independence of defense attorneys from interference by the judiciary can create systemic injustice [and that] Pennsylvania’s overly localized [indigent defense system] can lead to inadequate supervision and training, which in turn can lead to a shocking deterioration in professional standards.
Despite such authoritative findings of constitutional shortcomings, we have seen no progress toward a remedy from either the New York or the Pennsylvania legislatures. We see much lamentation about the job prospects of law school graduates around the country.  The need for competent legal assistance is plain. The failure of our elected officials to hear the call of Gideon’s trumpet leaves us with much work to do. Enabling competent representation requires a firm commitment by governments, which too often lack a constitutional vision.
George W. Conk is Adjunct Professor of Law and Senior Fellow at the Stein Center for Law & Ethics. He is a member of the New Jersey Supreme Court’s Advisory Committee on Professional Ethics