Beyonce sings Star Spangled Banner live

They didn't deserve it - the Super Bowl  press corps.   But here is Destiny's Child's lead singer  doing it live.

Preventing Gun Deaths in Children — NEJM

Preventing Gun Deaths in Children — NEJM:
by Judith Palfrey and Sean Palfrey, M.D.'s - Boston Children's Hospital and Boston Medical Center

 "As practicing pediatricians who have lost patients to gun violence, we join our colleagues in mourning the 20 children and their teachers who were killed in Newtown, Connecticut, on December 14, 2012. Our sadness is deepened by our knowledge that the deaths, terror, and post-traumatic stress of the relatives and friends left behind could have been prevented. Prevention is the core of pediatric work. We aim to protect children from all things that can harm them. Injuries are the biggest threat to U.S. children over 1 year of age. In 2010, gun-related injuries accounted for 6570 deaths of children and young people (1 to 24 years of age). That includes 7 deaths per day among people 1 to 19 years of age. Gun injuries cause twice as many deaths as cancer, 5 times as many as heart disease, and 15 times as many as infections (see graph Causes of Death among Persons 1 to 24 Years of Age in the United States, 2010. )."

'via Blog this'

Here Are the Patterns the Feds Found for U.S. Mass Killings | Danger Room | Wired.com

"Unlikely to have served in the military" is one finding - but 4 of 29 had!  That is a very strong indicator that prior weapons training is a factor. Here Are the Patterns the Feds Found for U.S. Mass Killings | Danger Room | Wired.com: "Here Are the Patterns the Feds Found for U.S. Mass Killings BY SPENCER ACKERMAN" 'via Blog this'

Washington & Lee is the Best Legal Education Story of 2013 | William Henderson - JDSupra

The Times reports today  on the dramatic drop in law school applications.  There are lots of reasons for declining demand for lawyers, though too little mentioned is that the people who need them most can't afford them (think criminal defense, deportation).  Another slight is the shift of public funding of education from public funding of higher education to (non-dischargeable in bankruptcy) loans to students.  Irrelevant to the job market but relevant to law schools competitive position vis a vis each other  is the lament about the failings in legal education - too much theory, too little practice, etc..  William Henderson reports on Washington & Lee's switch to an "experiential" program for the third year. Washington & Lee is the Best Legal Education Story of 2013 | William Henderson - JDSupra:

There is empirical evidence that Washington & Lee’s experiential 3L curriculum is delivering a significantly better education to 3L students—significantly better than prior graduating classes at W&L, and significantly better than W&L’s primary competitors. Moreover, at a time when total law school applicants are on the decline, W&L’s getting more than its historical share of applicants and getting a much higher yield. When many schools are worried about revenues to survive next year and the year after, W&L is worried about creating the bandwidth needed to educate the surplus of students who enrolled in the fall of 2012, and the backlog of applicants that the school deferred to the fall of 2013. The evidence is based on several years’ worth of data from the Law School Survey of Student Engagement (LSSSE).

'via Blog this'

Mother's Little Helper: the AR 15 Bushmaster

Engaging in debate with 2d Amendmentistas is like engaging any other cult.  Millions of Moms want and need semi-automatic assault rifles, said Gayle Trotter today in Senate testimony. Last year she testified against the Violence Against Women Act. - GWC

Sen Durbin stumps gun rights law prof

I have so little use for the 2d Amendmentistas that I find it unpleasant to spend time debating the gun-rights advocates.  Glad we have Dick Durbin in the Senate.  One of the more annoying `libertarian' gun-rights advocates is David Kopel, a regular contributor at Volokh Conspiracy and Op-Ed writer.  Senator Dick Durbin of Illinois stumped Kopel today, pressing him on why he thinks high-volume magazines are protected by the 2d Amendment but machine guns aren't. - GWC

ALI responds to criticism by Center for Tobacco Control

In Tobacco Industry Influence on the American Law Institute’s Restatements of Torts and Implications for Its Conflict of Interest Policies, 98 Iowa Law Review 1 (2012) Elizabeth Laposata, et al. reported lobbying by lawyers for the Tobacco Institute in the 1960's.  The industry lawyers influenced ALI Reporter William Prosser to exempt "good tobacco" and "good whiskey" from the ALI's proposed new "strict products liability" principle.  I was shocked to learn that Dean Prosser met with a group of tobacco lawyers - without disclosure.  I read the ALI's 1964 2d Restatement of Torts final draft's defense of  "good whiskey" and "good tobacco" as `good old boys' talk after hours at the bar of Washington's Mayflower Hotel where the annual meetings were held.  But the Tobacco Control Center critics mined the Tobacco Archives and showed there was a self-conscious push by industry lawyers to derail the development of doctrine adverse to the tobacco industry.

ALI President Roberta Ramo and Director Lance Liebman have posted The ALI’s Response to the Center for Tobacco Control Research & Education, 98 Iowa L. Rev. Bull 1 (2013).
 Laposata, et al. called for the ALI to adopt a policy of interest disclosure similar to that of  the National Academies: "Until the ALI adopts and enforces meaningful, effective, and transparent  conflict of interest policies, their work should not be taken without question as unbiased authoritative documents worthy of reliance by our courts and legislatures".

 The ALI leaders reply  

"An ALI rule [4.03] tells members to “leave our clients at the door,” and it is a point of honor among members that we state what we personally believe to be right, not what our clients want us to say. But it is equally important that we make certain that all significant points of view are represented and explained."

But lawyers don't just "leave their clients at the door".  They choose their clients as much as the clients choose them.  They develop loyalties to their clients.  The bonds are ideological as well as material.  Monroe Freedman drew attention to the problem fifteen years ago, writing  "These conflicts of interest have compromised the integrity of the ALI's Restatements of the Law to the point that no judge, scholar, or student can rely on a Restatement rule or comment as representing the objective judgment of members, unaffected by the partisanship of advocates who are creating precedents to protect their clients' and their own interests in future litigation." `Caveat Lector'...26 Hofstra L. Rev. 641 (1998)

Laposata, et al. compare the ALI unfavorably to the Congressionally-chartered National Academy of Sciences:

Unlike the NAS, the ALI does not have any policies that require a good faith effort to appoint members without conflicts of interest to serve as Reporters, Advisors, or in the M[embers] C[onsultative] G[roups],  nor does it have any policies that prevent these individuals from having a decision-making role.

The ALI conflict rules - amended in 2009 - are hortatory, a kind of gentlemen's code of honor, though they do now declare that representation of a client in "Institute proceedings"  is "good cause for termination" of membership.  As an "elected member" I speak at consultative committee meetings,  and occasionally send thoughts and observations to Reporters.  But nothing requires me to report that for  thirty years I made my living as a plaintiffs lawyer.  In the doctrinal battles of the peak years of my career as practitioner (1990 - 2007) it was plain where my loyalties lay.  I both expounded upon and criticized the Third Restatement - Product Liability.  In the Yale Law Journal (2000) and UCLA Law Review (2002) I criticized the new Restatement as pro-industry, particularly on drugs and pharmaceutical products.   But I was not required to  report in the `bios' of my academic articles whose interests I represented as a lawyer.  Among them were the Association of Trial Lawyers of America, the Industrial Union Council of the New Jersey AFL-CIO, and the  Hemophilia Society of New Jersey.  I thanked the latter in my YLJ article "Is There a Design Defect in the Third Restatement of Torts, Product Liability?"  But that was candor, not requirement. So part of the problem  is a weakness of the legal academic culture, not just the ALI.

When the ALI chose as Product Liability Restatement Reporters  Aaron Twerski and James Henderson it was plainly choosing two professors who had consulted for the defense side and whose writings made clear that they thought product liability law had gone too far.  And that it suffered from doctrinal incoherence.  They proposed, sought to, and did carry out the Product Liability Restatement  project together.  Plaintiffs lawyers and plaintiff-oriented academics criticized them in academic symposia and in the proceedings of the ALI which operates  in quasi-parliamentary fashion.  Should the ALI have picked a "balanced" team of Reporters?  I'm not ready to answer that knotty question.  But certainly disclosure of the Reporters' client list would have been preferable to the simple slogan "leave your clients at the door".

DePuy Hid Data About Failed Hip Implant, Documents Show - NYTimes.com

image by Childress, Schlueter & Smith, LLC

According to plaintiff's opening argument in the first bellwether trial inLose Angeles Superior Court
DePuy Hid Data About Failed Hip Implant, Documents Show - NYTimes.com: 
by Barry Meier
"Johnson & Johnson executives knew years before they recalled a troubled artificial hip in 2010 that it had a critical design flaw, but the company concealed that information from physicians and patients, according to internal documents disclosed on Friday during a trial related to the device’s failure..."

These 510(k) cases are not preempted by federal law because the Medical Device Amendments of 1976 provided only cursory FDA review of Class III medical devices certified to be "substanial equivalents" of devices already on the market.  For a sample complaint and links to litigation documents see the DePuy page on my blog Torts Today
'via Blog this'

CDC gun control studies needed - NJ Law Journal Editorial Board

The New Jersey Law Journal Editorial Board has joined the chorus supporting President Obama's call for Congress to fund studies of gun violence by the Centers for Disease Control.  Congress fifteen years ago barred CDC from advocating gun control.  That ended studies by the National Institutes of Health.  But President Obama has now said that study and advocacy are different - and demanded Congress provide $10 million to CDC for such studies.  It is a modest but important beginning. - GWC

Don't Limit Gun Control Research - NJ Law Journal Editorial (c) ALM - all rights reserved

Our national health doesn't match that of other advanced countries. On almost every measure, we lag. Young, middle aged, old, rich, poor — our life expectancy is less than those of similar citizens of other advanced countries. Perhaps most surprising, according to a National Institutes of Health report, Shorter Lives, Poorer Health, "Younger Americans die earlier and live in poorer health than their counterparts in other developed countries, with far higher rates of death from guns, car accidents and drug addiction."
We have made progress through study on prevention of car accidents and have begun to move toward drug treatment rather than incarceration. But on gun violence we continue to see high levels of violent death, regardless of how strict local gun control laws are. Yet the picture is not uniform. We just don't know enough to explain why there are such substantial variations in local rates of gun violence.
It is appalling that Congress, since 1997, has provided that "none of the funds made available for injury prevention and control at the Centers for Disease Control and Prevention may be used to advocate or promote gun control." Although the Affordable Care Act restricts development of gun ownership databases and use of gun possession data for insurance rating purposes, nothing in the act presents any additional obstacle to public health studies.
We are heartened that the White House has faced up to this problem, saying: "There are approximately 30,000 firearm-related homicides and suicides a year, a number large enough to make clear this is a public health crisis. But for years, the CDC and other scientific agencies have been barred by Congress from using funds to 'advocate or promote gun control,' and some members of Congress have claimed this prohibition also bans the CDC from conducting any research on the causes of gun violence. However, research on gun violence is not advocacy. The President is directing the CDC and other research agencies to conduct research into the causes and prevention of gun violence, and the CDC is announcing that they will begin this research."
There is a willful embrace of ignorance by some that continues to shock us. Protection of citizens from violence is among the first obligations of government, yet loose talk about nullification and monarchy comes from the lips of those who should know better. The study of gun violence is a compelling public purpose. We applaud the administration's decision to free the CDC from the paralysis induced by Congressional measures. And we urge the Congress to support the administration's request for $10 million to the CDC for a modest start on the study of the problem which has been frozen for 15 years.
Board chairman Rosemary Alito and board member Peter G. Verniero recused from this editorial.

Charles J. Reid, Jr.: The American Catholic Church and Roe. v. Wade

Charles J. Reid, Jr.: The American Catholic Church and Roe. v. Wade:
by Charles J. Reid
St. Thomas University Law School

 "Forty years ago this January, the United States Supreme Court decided the case of Roe v. Wade, which struck down a number of states' restrictive abortion laws and extended the right of privacy to include the woman's right to terminate her pregnancy. Many American Catholics took exception to this decision and have engaged in four decades of political action to reverse this outcome. As their strategy evolved, it took the following form: The Republican Party quadrennially pledged in its platform to appoint Supreme Court justices committed to reversing Roe v. Wade, and Catholics in the pews were encouraged to vote in favor of candidates' whose support for "life" issues was unwavering. There might have been a time when this strategy was viable. It remains viable no longer.... " 'via Blog this'

Public Defenders: ‘True Believers in Justice’ - NYTimes.com

Fifty years after Gideon v. Wainwright promised effective defense to al charged with crime, filmmaker Dawn Porter follows Travis Williams,  a Georgia public defender, as he struggles with inadequate resources, to defend his indigent clients.  5,000 PD's defend 5,000,000 indigent people charged with crime every year in America.  Williams  gets help from  Gideon's Promise which trains public defenders - the most important civil rights workers in our legal system which incarcerates more people for longer than any other country in the world. Click HERE for video- gwc
‘True Believers in Justice’ - NYTimes.com: 
by Dawn Porter

"I was horrified by what I learned about the criminal justice system. Innocent people, in prison for months or years, sometimes plead guilty to get out of jail; onerous sentences are too often given for minor crimes; people can lose civil rights, like the right to vote, as a result of criminal convictions. In America, a felony conviction can be a lifelong sentence because of this multitude of collateral consequences. I also saw what a difference it made to have lawyers like Travis fighting hard for poor people’s rights. I saw him tell clients and their families that they were facing long sentences, outrageous bail terms or prison. But I saw him deliver even the worst news with compassion, and I saw him fight for every client. He’s inspired me to judge less and listen more, to try to put myself in the position of people who face a terribly structured system that often provides justice to neither the victim nor the accused. Thanks to Travis and the other young lawyers I met on this journey, I can proudly say I’m a “true believer” in their cause." 'via Blog this'

Cuba - a different model of health care - New England Journal of Medicine

Time to end the embargo of Cuba.  We could learn a lot about patient-centered preventive health care.  And they could benefit greatly from internet access.  - gwc

A Different Model — Medical Care in Cuba

Edward W. Campion, M.D., and Stephen Morrissey, Ph.D.
N Engl J Med 2013; 368:297-299 January 24, 2013DOI: 10.1056/NEJMp1215226

For a visitor from the United States, Cuba is disorienting. American cars are everywhere, but they all date from the 1950s at the latest. Our bank cards, credit cards, and smartphones don't work. Internet access is virtually nonexistent. And the Cuban health care system also seems unreal. There are too many doctors. Everybody has a family physician. Everything is free, totally free — and not after prior approval or some copay. The whole system seems turned upside down. It is tightly organized, and the first priority is prevention. Although Cuba has limited economic resources, its health care system has solved some problems that ours has not yet managed to address.1,2Family physicians, along with their nurses and other health workers, are responsible for delivering primary care and preventive services to their panel of patients — about 1000 patients per physician in urban areas. All care delivery is organized at the local level, and the patients and their caregivers generally live in the same community. The medical records in cardboard folders are simple and handwritten, not unlike those we used in the United States 50 years ago. But the system is surprisingly information-rich and focused on population health.
All patients are categorized according to level of health risk, from I to IV. Smokers, for example, are in risk category II, and patients with stable, chronic lung disease are in category III. The community clinics report regularly to the district on how many patients they have in each risk category and on the number of patients with conditions such as hypertension (well controlled or not), diabetes, and asthma, as well as immunization status, time since last Pap smear, and pregnancies necessitating prenatal care.
Every patient is visited at home once a year, and those with chronic conditions receive visits more frequently. When necessary, patients can be referred to a district polyclinic for specialty evaluation, but they return to the community team for ongoing treatment. For example, the team is responsible for seeing that a patient with tuberculosis follows the assigned antimicrobial regimen and gets sputum checks. House calls and discussions with family members are common tactics for addressing problems with compliance or follow-up and even for failure to protect against unwanted pregnancy. In an effort to control mosquito-borne infections such as dengue, the local health team goes into homes to conduct inspections and teach people about getting rid of standing water, for example.
This highly structured, prevention-oriented system has produced positive results. Vaccination rates in Cuba are among the highest in the world. The life expectancy of 78 years from birth is virtually identical to that in the United States. The infant mortality rate in Cuba has fallen from more than 80 per 1000 live births in the 1950s to less than 5 per 1000 — lower than the U.S. rate, although the maternal mortality rate remains well above those in developed countries and is in the middle of the range for Caribbean countries.3,4 Without doubt, the improved health outcomes are largely the result of improvements in nutrition and education, which address the social determinants of health. Cuba's literacy rate is 99%, and health education is part of the mandatory school curriculum. 

A recent national program to promote acceptance of men who have sex with men was designed in part to reduce rates of sexually transmitted disease and improve acceptance of and adherence to treatment. Cigarettes can no longer be obtained with monthly ration cards, and smoking rates have decreased, though local health teams say it remains difficult to get smokers to quit. Contraception is free and strongly encouraged. Abortion is legal but is seen as a failure of prevention.

Maker Aware of 40% Failure in Hip Implant - NYTimes.com

Maker Aware of 40% Failure in Hip Implant - NYTimes.com: by Barry Meier
 "An internal analysis conducted by Johnson & Johnson in 2011 not long after it recalled a troubled hip implant estimated that the all-metal device would fail within five years in nearly 40 percent of patients who received it, newly disclosed court records show." 'via Blog this'

Obama's Second Inaugural: Liberty and Security

President Obama's overarching themes in his second inaugural were expanding liberty, and reconciling liberty and security. James Fallows, a former presidential speechwriter, highlights two powerful allusions in President Obama's Second Inaugural Address - the "lash and sword" and "Seneca, Selma, and Stonewall" which develop the theme of expanding liberty.   Fallows focuses on the power of Obama's evocation of the history of slavery and the civil war.  The war re-founded the country, unifying it by force - compelling the south to accept the revolutionized terms of union - forbidding slavery, demanding equal protection for all, and embedding the right to vote.  For 100 years after the 13th, 14th and 15th Amendments we nonetheless tolerated legal racial discrimination and the suppression of African-Americans right to vote.  It is a defect in the prevailing dialog about the Constitution that "originalism" - the dominant exegesis - considers the "founders"  to be those of the 18th century.  In my view Abraham Lincoln, the "Radical Republicans", and Ulysses Grant belong in the pantheon.

The opening section is my favorite, drawing as it does on Lincoln's Second Inaugural Address:

Vice President Biden, Mr. Chief Justice, Members of the United States Congress, distinguished guests, and fellow citizens:Each time we gather to inaugurate a president, we bear witness to the enduring strength of our Constitution. We affirm the promise of our democracy. We recall that what binds this nation together is not the colors of our skin or the tenets of our faith or the origins of our names. What makes us exceptional — what makes us American — is our allegiance to an idea, articulated in a declaration made more than two centuries ago:"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are Life, Liberty, and the pursuit of Happiness."

Today we continue a never-ending journey, to bridge the meaning of those words with the realities of our time. For history tells us that while these truths may be self-evident, they have never been self-executing; that while freedom is a gift from God, it must be secured by His people here on Earth. The patriots of 1776 did not fight to replace the tyranny of a king with the privileges of a few or the rule of a mob. They gave to us a Republic, a government of, and by, and for the people, entrusting each generation to keep safe our founding creed.For more than two hundred years, we have.Through blood drawn by lash and blood drawn by sword, we learned that no union founded on the principles of liberty and equality could survive half-slave and half-free. We made ourselves anew, and vowed to move forward together.

The Legal Whiteboard: A Blueprint for Change

The Legal Whiteboard: A Blueprint for Change:
by William Henderson

This Article discusses the financial viability of law schools in the face of massive structural changes now occurring within the legal industry. It then offers a blueprint for change – a realistic way for law schools to retool themselves in an attempt to provide our students with high quality professional employment in a rapidly changing world. Because no institution can instantaneously reinvent itself, a key element of my proposal is the “12% solution.” Approximately 12% of faculty members take the lead on building a competency-based curriculum that is designed to accelerate the development of valuable skills and behaviors prized by both legal and nonlegal employers. For a variety of practical reasons, successful implementation of the blueprint requires law schools to band together in consortia. The goal of these initiatives needs to be the creation and implementation of a world-class professional education in which our graduates consistently and measurably outperform graduates from traditional J.D. programs.

'via Blog this'

Torts Today: FDA - Metallic Hip Implants Require Premarket Approval

Torts Today: FDA - Metallic Hip Implants Require Premarket Approval: 'via Blog this'

Peace Now Report: Netanyahu Threatens Two State Solution

I am neither expert nor student of the Israeli - Palestinian conflict and have commented on it only once - in an obituary/tribute to the murdered Yitzhak Rabin.  Like most people I have seen two separate states - one majority Jewish and one Palestinian Arab - as the practical and inevitable solution to the wars and occupation.  This report by Israeli Peace Now (Shalom Achshav) describes the policies of the Netanyahu government which have made the two state solution less and less likely.  Key points appear blow. The brilliant late historian Tony Judt, a Zionist in his youth, eventually despaired and came to support a single secular state.  Despite the moral appeal of that, it still seems less likely than a two state armistice.  - GWC

 Construction, tenders, approval of future construction, and planning for future construction in settlements located deep inside the West Bank, east of the approved route of Israel’s separation barrier;
 A record level of tenders, approval of future construction, and planning for future construction in settlements in East Jerusalem;
 Construction, tenders, approval of future construction, and planning for future construction in settlements in both the West Bank and East Jerusalem whose location renders their expansion especially problematic if not devastating to a future peace agreement;
 Adopting a formal policy that favors “legalizing” illegal settlement construction – leading both to additional illegal construction and new illegal outposts, and to the establishment of new settlements for the first time in decades.
 Preferential funding for settlers and settlements, including funding projects intended to build support among Israelis for keeping settlements – including settlements deep inside the West Bank – as a permanent part of Israel.

Society needs fair call to clear heavy smog - Globaltimes.cn

北京2013 年一月十三日

Global Times is a Chinese newspaper that is often criticized for defending repressive and thin-skinned defensive measures by the government.  But in this editorial = prompted by the horrific reports of hazardous air pollution in Beijing = the paper makes the central demand for change:  information is needed for China and its people to manage the crisis in the environment in China.  The Communist party aspires to be scientific - yet it deprives citizens of the information they need to participate effectively in addressing the problems of society. Critics of the CP and the PRC government itself often assume that one-party government cannot tolerate freedom of information.  I think that is liberal wishful thinking.  And it is unproductive.  What we can say with confidence is that - effective governance is undermined by the policies of secrecy that the Chinese government now pursues.  If the Chinese CP wants to be a stable and effective governing party it must vastly increase the realm of public information.  - GWC
Society needs fair call to clear heavy smog - Globaltimes.cn:

On this issue, the government cannot afford to make decisions for the society. Previously, governments used to deal with the pollution information in a low-key way and made the choice between development and environmental protection for public. However, when public opinion didn't go for this way of thinking, it led to some conflicts. 
In future, the government should publish truthful environmental data to the public. Let society participate in the process of solving the problem. 
The public should understand the importance of development as well as the critical need to safeguard the bottom line of the environmental pollution. The choice between development and environment protection should be made by genuinely democratic methods. 
Currently, Chinese public opinion prefers sensational news. Against such condition, the governments cannot always think about how to intervene to "guide public opinion." It should publish the facts and interests involved, and let the public itself produce a balance based on the foundation of diversification。

'via Blog this'

Funding forces PD's into ethical dilemmas - Heather Baxter

Heather Baxter

I have been banging this drum slowly for a while now.  I keep hoping that something will give in this the fiftieth anniversary year of Gideon v. Wainwright.  The public defense system of Pennsylvania is a gross failure, and New York's is an admitted failure.  Now Nova Southeastern law prof Heather Baxter surveys the broad scope of the problem and its impact on the ability of public defenders to meet their ethical obligation to provide competent and effective defense. Unfortunately it's like the weather: everyone talks about it, no one does anything about it. - GWC
Legal Ethics Forum: Heather Baxter, "Too Many Clients, Too Little Time: How States are Forcing Public Defenders to Violate Their Ethical Obligations":

"Budget cuts have had a devastating effect on public defenders and their ability to effectively represent indigent clients, mostly in the form of increasing caseloads. Much has been written about the effect these excessive caseloads have had on indigent defendants’ right to counsel. This article, instead, focuses on how excessive caseloads are placing public defenders in ethical dilemmas. Public defenders are bound by the Model Rules of Professional Conduct, but these high caseloads are making it increasingly difficult for them to meet these required ethical standards. Specifically, it is more challenging for an attorney to represent indigent clients diligently and competently when dealing with caseload numbers well beyond the recommended levels. The author discusses why the solutions being offered by the American Bar Association‘s Formal Opinion 06-441 are not tenable and concludes that true reform in indigent defense is the only way to alleviate the excessive caseloads."

still unheard

Is the Government ‘Defining Religion’? | Commonweal magazine

The U.S. Catholic  bishops conference continues its hyperbolic alarums that religious freedom is under attack.  Here a Notre Dame law professor takes on their lawuit against the so-called "contraceptive mandate". - GWC
Is the Government ‘Defining Religion’? | Commonweal magazine:
by Cathleen Kaveny

The U.S. Conference of Catholic Bishops continues to oppose the Affordable Care Act because of its contraception mandate and the Department of Health and Human Services’ refusal to extend a blanket exemption to Catholic institutions such as hospitals and universities. The USCCB is not only worried about what the law might force these institutions to do, such as pay for contraceptive coverage. It is also worried what it might say about who they are. In a statement issued last year the USCCB Administrative Committee protested: “Government has no place defining religion and religious ministry.... HHS thus creates and enforces a new distinction—alien both to our Catholic tradition and to federal law—between our houses of worship and our great ministries of service to our neighbors, namely, the poor, the homeless, the sick, the students in our schools and universities, and others in need, of any faith community or none.”

I think the USCCB’s criticism is rooted in a mistaken assumption about how our law operates. The HHS regulations don’t define religion—they define exemptions to the mandate applicable to institutions that certify themselves as religious, while balancing competing concerns in light of the purposes of the particular law they are implementing.

'via Blog this'

IOM - Americans Die Young

Live free and die is the message about American health care.  The Institute of Medicine of the National Academy of Sciences was reportedly surprised to learn that "Younger Americans die earlier and live in poorer health than their counterparts in other developed countries, with far higher rates of death from guns, car accidents and drug addiction."
There should be no surprise: our prevailing anti-tax, anti-government, `private is freedom and public is servitude' ideology means in pracice that the government which governs less governs worse.  Sabrina Tavernise at the Times discusses the new IOM report U.S. Health in International Perspective: Shorter Lives, Poorer Health features an interactive graph.

Why I never considered running for office

My 18 months as a surrogate speaker for the Mondale campaign, and member of the Platform Committee of the DNC gave me delusions of grandeur.  I could see my name in lights, as I punched and counterpunched in debates before local Democratic clubs, at friendly fundraisers, at the Platform Committee meetings in D.C., and delivering talking points - given me by Madeleine Albright - to meetings of state delegations during the San Francisco nominating convention of 1984.  
But those same glory days also gave me a glimpse of the life of an M.C.  The following two slides - from a DCCC presentation to new members of the House of Representatives - illustrate why I never took a step in the direction of elective office. - GWC

When Death Row Lawyers Stumble, Clients Take the Fall - NYTimes.com

Adam Liptak, the Times fine legal affairs correspondent, asks `why do we saddle clients with their lawyers mistakes?'  Because the lawyer is the client's agent, is the short and unsatisfactory answer.  Liptak explores the problem in the shocking case of Ronald Smith (below) and in a fuller discussion of the issues in a recent issue of the Michigan Law Review - Agency and Equity: Why Do We Blame Clients for Their Lawyers' Mistakes? -Liptak proposes an abandonment exception to the general rule that a principal bears the consequences of the agent's default.  - gwc
When Death Row Lawyers Stumble, Clients Take the Fall - NYTimes.com:

 Twice in recent years, the Supreme Court rebuked the federal appeals court in Atlanta for its rigid attitude toward filing deadlines in capital cases. The appeals court does not seem to be listening.
A few days after Christmas, a divided three-judge panel of the court ruledthat Ronald B. Smith, a death row inmate in Alabama, could not pursue a challenge to his conviction and sentence because he had not “properly filed” a document by a certain deadline.
As it happens, there is no dispute that the document was filed on time. But it was not “properly filed,” the majority said, because Mr. Smith’s lawyer did not at the same time pay the $154 filing fee or file a motion to establish something also not in dispute — that his client was indigent.
Nor did the majority place much weight on the fact that the lawyer himself was on probation for public intoxication and was addicted to crystal methamphetamine while he was being less than punctilious. In the months that followed, the lawyer would be charged with drug possession, declare bankruptcy and commit suicide.

h/t Brooks Holland/Legal Ethics Forum 

'via Blog this'

Gun Violence: Live Harvard School of Public Health Webcast Tomorrow - Robert Wood Johnson Foundation

Gun Violence: Live Harvard School of Public Health Webcast Tomorrow - Robert Wood Johnson Foundation:

Tuesday, January 8, from 12:30 to 1:30 p.m. EST, the Harvard School of Public Health, in collaboration with Reuters, will present an hour long live webcast on gun violence, in response to the too many recent gun massacres.

The webcast is part of the school’s ongoing “Forum” series,  whose aim is to provide a platform to discuss policy choices and scientific controversies by leveraging participants' collective knowledge. Tomorrow’s forum on gun violence will look at the legal, political, and public health factors that could influence efforts to prevent gun massacres.

Participants include Laurence Tribe, professor of Constitutional Law at Harvard Law School; Felton Earls, MD, professor of child psychiatry at Harvard Medical School; David King, senior lecturer in public policy at the John F. Kennedy School of Government at Harvard, and chair of Harvard’s Bipartisan Program for Newly Elected Members of Congress; and David Hemenway, PhD, Director of the Harvard Injury Control Research Center.

In advance of tomorrow’s Forum, NewPublicHealth spoke with Dr. Hemenway about ongoing research efforts aimed at preventing gun violence and gun massacres. Dr. Hemenway is the author of Private Guns, Public Health, which demonstrates how a public-health approach—historically applied to reducing the rates of injury and death from infectious disease, car accidents, and tobacco consumption—can also be applied to preventing gun violence. 

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OTHERWISE: Congress should repeal the law that protects the gun industry from lawsuits. - Slate Magazine

OTHERWISE: Congress should repeal the law that protects the gun industry from lawsuits. - Slate Magazine:

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More Guns = More Killing - NYTimes.com

A soldier stands guard in Guatemala

More Guns = More Killing - NYTimes.com:
by Elisabeth Rosenthal

"Scientific studies have consistently found that places with more guns have more violent deaths, both homicides and suicides. Women and children are more likely to die if there’s a gun in the house. The more guns in an area, the higher the local suicide rates. “Generally, if you live in a civilized society, more guns mean more death,” said David Hemenway, director of the Harvard Injury Control Research Center. “There is no evidence that having more guns reduces crime. None at all.” After a gruesome mass murder in 1996 provoked public outrage, Australia enacted stricter gun laws, including a 28-day waiting period before purchase and a ban on semiautomatic weapons. Before then, Australia had averaged one mass shooting a year. Since, rates of both homicide and suicide have dropped 50 percent, and there have been no mass killings, said Ms. Peters, who lobbied for the legislation."

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Chinese Supreme Court President Wang Shengjun calls for strengthening rule of law

Wang Shengjun - President of the Supreme Peoples Court of the PR has called for adhering to the Constitution and strengthening the rule of law in the country, according to a December 26, 2012 article in the Legal Daily.

Congress should repeal the law that protects the gun industry from lawsuits. - Slate Magazine

Congress should repeal the law that protects the gun industry from lawsuits. - Slate Magazine:

by John Culhane, Widener Law School

 "Like any major public health problem, stemming gun violence will require multiple, overlapping strategies. Let me offer another one, overlooked until now, but potentially a dynamo: Repeal the little-known, but pernicious, Protection of Lawful Commerce in Arms Act. In other words, reopen the door to lawsuits against gun sellers for wrongful conduct in the design and marketing of their weapons. Advertisement In 2005, at a high point of the NRA’s control of the national agenda on guns, Congress passed this breathtakingly broad and virtually unprecedented law. Overriding states’ power to regulate harmful conduct within their borders, the PLCAA eliminated most tort claims anyone might bring against the manufacturers and other sellers of guns, and did so for past and well as future misconduct." 'via Blog this'

F. Lee Bailey: Lack of Candor Costs him Maine Bar Admission

Disbarred in Florida in 2001 (and reciprocally in Massachusetts) the celebrity lawyer F. Lee Bailey passed the Maine bar examination in 2011.  A resident of Yarmouth, just outside Portland, he failed to satisfy the state's Board of Bar Examiners by a 5-4 vote.  The majority opinion notes that  "An applicant for reinstatement to the bar bears the burden to present “‘clear and convincing evidence demonstrating the moral qualifications, competency, and learning in law required for admission to practice law in this State.’”   Fatal to his application, the five examiners who denied him admission explained, was his lack of candor to the tribunal - the Board of Bar Examiners.

F. Lee Bailey and O.J. Simpson

"It is clear that Bailey does not recognize the wrongfulness of his past conduct. [A character witness Massachusetts Superior Court Associate] Justice [Kenneth] Fishman described Bailey’s past ethical lapses as an “aberration.”  It is certainly conceivable in other situations that misconduct could truly be aberrant behavior, particularly where the attorney understands and accepts the wrongfulness of his deeds, does not commit subsequent misconduct, and is forthright with this Board.  But Bailey’s creation of new explanations for his past wrongs and his lack of candor with this Board precludes the Board from reaching the conclusion that his conduct was an aberration."

Although not technically a violation of RPC 3.3 which proscribes false statements of fact and is addressed to  a lawyer's work as an advocate, the spirit of the rule is a deep cultural norm.  Bailey's excuse-making, and minimization of his past conduct offended the majority.  They found he had not met the heavy burden of a disbarred lawyer seeking to return to practice which specifies in Maine Bar Rule 7.3(j)(5) (C) that "The petitioner recognizes the wrongfulness and seriousness of the misconduct."

Other evasions weighed against Bailey - including omission regarding past administrative actions, and vague responses regarding residence which led the majority to suspect he had improperly evaded Maine resident taxes.

But the minority was convinced that Bailey had met his burden, declaring

 A blanket admission of guilt – which would in Bailey’s case be insincere – is not the touchstone for recognition of wrongdoing.  “[F]undamental justice demands that a person who believes he is innocent, though convicted, should not be required to confess his guilt of something he honestly believes he did not commit.”  In re Hiss, 368 Mass. 447 (1975) (Reversing the Board of Bar Overseers, the Massachusetts Supreme Judicial Court held that Alger Hiss’ insistence that he was innocent of perjury charges, even though he had been tried and convicted of that felony, did not justify denial of petition for admission and did not indicate lack of rehabilitation.)  

Bailey is entitled to his interpretation of events and his belief that certain of the adverse findings were wrong, so long as he accepts responsibility for his actions, appreciates the seriousness of his actions and the consequences, and has learned from his mistakes.

Citing his extensive public service since his disbarment and the support of numerous character witnesses, the four minority members (two of them non-lawyer professionals) recommended admission "without condition", though they note that Bailey (who proposed he be supervised by a local lawyer) was willing to accept conditions the court might impose.

Bailey will, I presume, petition the Supreme Judicial Court for review.

Newt Gingrich Warns GOP on Debt Limit - Politico

I agree.  President Obama has made clear that it is outrageous for Congress to approve spending and and then refuse to allow the government to raise the money it needs to pay the bills  authorized by the Congress.  I don't know why he didn't take that stance last time, but he should stick to it this time.  The concurrence of the "sequester" complicates things - but the two issues are conceptually - and legally - different.  Though Nancy Pelosi supports the 14th Amendment 'nuclear option' I agree with Obama in taking it off the table.  It is a plausible but strained argument that would shift the debate adversely to allegations that Obama is a usurper.  Better to keep the focus where it is: Congressional refusal to raise the debt limit would be to default on legal obligations of the United States. - GWC

Newt Gingrich warns GOP on debt ceiling - Kevin Robillard - POLITICO.com: Former House Speaker Newt Gingrich said Friday that the upcoming showdown over the debt ceiling isn’t a political winner for House Republicans, but dubbed it a “dead loser.”

“They’ve got to find, in the House, a totally new strategy,” Gingrich said on MSNBC’s “Morning Joe.” “Everybody’s now talking about, ‘Oh, here comes the debt ceiling.’ I think that’s, frankly, a dead loser. Because in the end, you know, it’s gonna happen. The whole national financial system is going to come in to Washington and on television and say: ‘Oh my God, this will be a gigantic heart attack, the entire economy of the world will collapse. You guys will be held responsible.’ And they’ll cave.”

America’s Retreat From the Death Penalty - NYTimes.com

Rome's colosseum was illuminated in tribute to New Jersey's repeal of the death penalty

Five years ago I was inspired to initiate a symposium to look back at New Jersey's twenty-five year experiment with restoration of the death penalty.  From 1982-2007 there were 228 capital trials and 60 death sentences.  Nine men were on death row at the moment of repeal in December 2007.  
In those twenty five years New Jersey Public Defenders fought every capital case.  No one was executed, despite 60 death sentences.  In the annals of defense lawyers it was the greatest capital effort in history.  And the New Jersey Supreme Court produced the most conscientious body of death penalty jurisprudence that any court has ever produced.    Of those judges Chief Justice Deborah Poritz and Associate Justices Alan Handler and Virginia Long deserve special mention.  Poritz as leader of the proportionality review effort.  The two Associates were the most determined foes of capital punishment.  Left, right, and center the justices scrutinized each case with great care.
Seton Hall Law School and Fordham's Stein Center for Law & Ethics sponsored the conference.  Former Chief Justice James Zazzali convened the gathering of citizens, legislators, judges, defenders, and prosecutors.  Titled Legislation, Litigation, Reflection and Repeal: The Legislative Abolition of the Death Penalty in New Jersey, we focused on the extraordinary efforts of three groups: the New Jersey Supreme Court, the New Jersey Office of the Public Defender, and the citizens group New Jerseyans for Alternatives to the Death Penalty.  Thanks to a moment when stars aligned two conscientious Republican legislators - Christopher Bateman and Robert Martin led the way as the measure passed the legislature. Governor Jon Corzine signed the repeal measure.

My introductory essay was called Herald of Change.  I worried that I was being groundlessly optimistic.   But since then four more states have repealed the death penalty, as the Times editorial notes today.

America’s Retreat From the Death Penalty - NYTimes.com:

 "In 2012, Connecticut became the fifth state in five years to abolish the penalty. Nine states executed inmates, the fewest in two decades. Three-fourths of the 43 executions in 2012 were carried out in only four states. The number of new death sentences remained low at 77 — about one-third the number in 2000 — with just four states accounting for almost two-thirds of those sentences. While 33 states retain the death penalty on their books, 13 of them have not executed anyone for at least five years. Those 13 states plus the 17 without the penalty means that 30 states are not carrying it out — and that includes California, which retained the death penalty in a November referendum vote. Almost one-quarter of the 3,146 death row inmates in the United States, as of October, are imprisoned in California, but that state has not executed anyone in seven years."

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Torts Today: Social Withdrawal and Violence — Newtown, Connecticut — New England Journal of Medicine

Torts Today: Social Withdrawal and Violence — Newtown, Connecticut — New England Journal of Medicine: 'via Blog this'

Preventing Gun Deaths in Children — New England Journal of Medicine

Gun-related injury is the second leading cause of death of youth each year - over 6,000 in 2010.  Two Boston pediatricians discuss the barriers to gathering the public health data needed to devise effective preventive strategies. - GWC
Preventing Gun Deaths in Children — NEJM: by Judith S. Palfrey, M.D., and Sean Palfrey, M.D.

"Despite this evidence, in 2011, Florida passed legislation, the Firearms Owners' Privacy Act, making it illegal for a doctor to conduct preventive screening by asking families about guns in the home — essentially “gagging” health care providers. Under the aegis of the Second Amendment, the First Amendment rights and the Hippocratic responsibilities of physicians were challenged. In response, the AAP's Florida chapter brought suit, and in June 2012, Miami-based U.S. District Judge Marcia Cooke issued a permanent injunction banning the state from enforcing the law. Governor Rick Scott has appealed the ruling, and similar bills have been introduced in three additional states.At the federal level, problematic language was introduced into the Affordable Care Act. Section 2717(c) sets restrictions on the collection and aggregation of data on guns in the home. Furthermore, Congress has restricted the research activities of the Centers for Disease Control and Prevention (CDC) by stipulating that no funds that are made available for injury prevention and control at the CDC “may be used to advocate or promote gun control.” Strictures like these often have a chilling effect on the gathering of important public health data." 'via Blog this'

Shanghai's spectacular New Year's Eve Light Show

Shanghai's spectacular New Year's Eve light show.  China invented gunpowder and fireworks.  Today the pyrotechnics are done digitally.  It takes place on The Bund - the river walk in downtown Shanghai.  And yes, there's a countdown!