Senator Durbin blasts Fordham Law Prof on Gun Testimony

Talking Points Memo has excerpted this bit from the rejoinder by Sen. Richard Durbin (D-IL) at today's hearings on the assault weapons ban. Evoking the phrase first coined by Justice Robert Jackson, dissenting in Terminiello v. Chicago, 337 U.S. 1 (1949), Durbin said to Fordham Law Prof. and Second Amendment advocate Nicholas Johnson ""When I listened to you and Mr. Hardy describe the Second Amendment, it's a suicide pact. Because by your definition, what has become common in America is unacceptable in a civilized country," "I made a very different point, senator," Johnson contested."Johnson drew the short straw - testifying after the very powerful emotional testimony of Newtown shooting victim Jesse Heslin's father Neil.

 Johnson's testimony (video here at 2:36.50 ) summarized his written submission. The gist was that the weapons listed in the draft bill cannot be rationally distinguished from other weapons (like shotguns) that are not barred. Therefore, he argues, the proposal cannot satisfy the "lowest level of constitutional review" - the rational basis test. 
 But it seems to me that Congress is free to pick and choose what guns may be lawfully sold - under the regulatory authority even Heller v. D.C. recognizes. A shotgun can be distinguished from an AR-15 with a large magazine. Guns don't have rights - people do. The Congress could, in my view, prescribe only one type of gun which a civilian may carry. And it may make the choice to "grandfather" the millions of weapons already in private hands. Congress, in exercise of its constitutional regulatory power, can take partial steps. - GWC

Paul Campos "law school scam" blogger quits

It was a strange turn - Paul Campos, a tenured law professor at Colorado University took to denouncing the law school industry.  He began a blog provocatively titled "Inside the Law School Scam".  Mixing hyperbole and ad hominem attack with facts he gained a large audience. with thousands of  of commenters.  Now, invoking Dylan, he says that "goodbye is too good a word" and will call it quits, saying something along the lines of "Don't Think Twice, It's All Right".

Justice Ginsburg’s Advocacy and the Future of Equal Protection - Yale Law Journal Online

Ruth Ginsburg explained when I was a student in her civil procedure class that she like the NAACP she would chip away at the problem of gender-based discrimination  until the Supreme Court accepted the principle of strict scrutiny of gender-based classifications.  Like others at the time she targeted stereotypes (men should share in the housework was a common cry).  In one of her early victories she defended a stay at home dad.  Cary Franklin discusses Ginsburg's approach.  The Justice follows with some comments of her own. - GWC
The Yale Law Journal Online - Justice Ginsburg’s Advocacy and the Future of Equal Protection: 'via Blog this'
by Cary Franklin, U. Texas Law School

In the early 1970s when Ruth Bader Ginsburg began to litigate constitutional cases about sex discrimination. At that point, the Supreme Court had never invalidated a law on the ground that it discriminated on the basis of sex, and laws that discriminated on the basis of sex triggered no special scrutiny under the Fourteenth Amendment. So, as a lawyer, Justice Ginsburg faced a substantial obstacle: she had to persuade the Court that, contrary to what it had believed for the first two centuries of this nation’s history, sex discrimination was a problem of constitutional magnitude. But she also had a significant opportunity to shape the Court’s understanding of what sex discrimination was and when it ran afoul of the Constitution.At the start of her litigation campaign, Ginsburg made a highly consequential, nonobvious choice. She decided to challenge the constitutionality of sex discrimination in cases with male plaintiffs. As a result, sex-based equal protection law in the United States was constructed, in significant part, in cases brought by men. To this day, men outnumber women among the ranks of constitutional sex discrimination plaintiffs who have reached the Supreme Court.Why did Ruth Bader Ginsburg decide to bring sex discrimination cases on behalf of men? 

Florida issues opinion on whether lawyers can use "the cloud" to store confidential documents - Professional Responsibility Blog:

Prof. Albert Bernabe reports:
Professional Responsibility Blog: Florida issues opinion on whether lawyers can use "the cloud" to store confidential documents: '
Legal Ethics in Motion is reporting (here) that last month the Florida Bar Professional Ethics Committee issued Proposed Advisory Opinion 12-3 on lawyers’ use of cloud computing to store and remotely access client files.
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Tobacco Research Center replies to ALI on industry influence

The Center for Tobacco Control Research and Education has sharply criticized the ALI's response to the Center's recent study.  The Center revealed that fifty years ago tobacco industry lawyers secretly - and apparently successfully - lobbied American Law Institute Reporter William Prosser.  His draft was modified to exempt "good tobacco" from the new strict liability rule in the ALI's landmark Section 402A the scripture of contemporary product liability law.  The ALI responded with a cursory "we tell our members to leave their clients at the door".  The Center responds:

"The ALI’s refusal to engage the issues we document is the most troubling aspect of their response. If  the ALI’s goal is to create credible, independent assessments of law, it  must implement the same conflict of interest policies that have become routine at other comparable organizations. The ALI responders’ out-of-hand dismissal of the unrefuted documentary evidence we present and the associated recommendations to correct serious flaws in  the ALI’s conflict of interest policies belie their professed commitment to “consider legitimate criticism expressed in careful and responsible scholarship."

It is a sobering reality that for fifty years the tobacco industry conducted a vast fraudulent scheme as Judge Gladys Kessler famously found as fact.  Through that entire time tort law - much maligned by industry - was impotent.  Instead of developing concepts that would lead to holding the industry accountable the ALI's Restatement of Product Liability was led by men who considered tobacco product liability litigation to be "illegitimate", as the Center's study recounts.  The two Reporters - Professors Aaron Twerski and James Henderson had been paid as consultants by the tobacco industry.  I trust that their scholarship was the product of their ideology not their industry clients.  But they waged a protracted battle against what they styled "categorical liability", denouncing as not "justiciable" product liability actions which asserted that the risks of tobacco outweighed their utility.

As I discuss in my 2007 history Punctuated Equilibrium the ALI's products Restatement did preserve the tools needed to hold the industry to account.  The alternative safer design test was used successfully to show how Philip Morris had manipulated the nicotine content of its products, maximizing addictiveness, and securing the Marlboro brand's dominant place in the market.  But despite that the ALI should humbly acknowledge that its leaders used their considerable intellectual force to find ways to protect the industry rather than hold its masters liable for the massive epidemic of lung cancer, heart and respiratory disease, the greatest public health disaster of the second half of the twentieth century.
In this context the ALI's "we leave our clients at the door" dismissal of the Tobacco Center's study is woefully inadequate.  The common law - among the world's great legal systems - stands out for  its candid acknowledgement that law is not a search for the abstract truth but a contest among interested parties. The ALI, which seeks to clarify and improve the law, should take to heart the critique of Elisabeth Laposata, and the UCSF researchers.  They put forward as a model for the ALI the conflict of interest disclosures required by the National Academies of Science.  Doubtless the analogy is incomplete - but reasoning via incomplete analogy is characteristic of our profession.  The National Academies surely provide an example from which we can learn much as we try to sustain the credibility of the ALI so that we can continue to be an effective force in the improvement of the law. - GWC

An Executive Branch ‘Drone Court’ - Neal Katyal NYTimes.com

The idea of a court to which one would apply to get the OK for a military strike beyond our borders strikes me as a constitutional impossibility.  Such decisions are plainly part of the President's Article II authority as commander in chief and to conduct foreign affairs.  If the Congress - as part of its Article I oversight and war-declaration authority - wants to create a mechanism for the executive, fine.  But it should not be located in the Article III judicial branch.  Former Solicitor General Neal Katyal explains why.  - GWC
An Executive Branch ‘Drone Court’ - NYTimes.com:
by Neal Katyal

IN the wake of revelations about the Obama administration’s drone program, politicians from both parties have taken up the idea of creating a “drone court” within the federal judiciary, which would review executive decisions to target and kill individuals.But the drone court idea is a mistake. It is hard to think of something less suitable for a federal judge to rule on than the fast-moving and protean nature of targeting decisions.Fortunately, a better solution exists: a “national security court” housed within the executive branch itself. Experts, not generalists, would rule; pressing concerns about classified information would be minimized; and speedy decisions would be easier to reach.

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To Practice Law, Apprentice First - NYTimes.com

To Practice Law, Apprentice First - NYTimes.com:
by John J. Farmer, Dean, Rutgers-Newark School of Law 
"THE American Bar Association, which sets the standards for accrediting law schools, met recently in Dallas at a time of existential crisis for legal education. The job market for law school graduates is collapsing; some schools have been misleading, or even fraudulent, in reporting admissions and employment data; tuition and student debt have reached record levels. Some question legal education itself: What is its mission? What value does it add? Those are legitimate questions. But to answer them for legal education, we also need to ask them of the profession." 'via Blog this'

Court refuses to apply Padilla v. Kentucky retroactively : SCOTUSblog

More evidence for the proposition that judges from Brooklyn and the Bronx are better than judges from Manhattan and Queens. - GWC
Opinion recap: Court refuses to apply Padilla v. Kentucky retroactively : SCOTUSblog:
In Padilla v. Kentucky (2010), the Supreme Court in a path-breaking decision held that an ineffective assistance of counsel claim under the Sixth Amendment could be based on the failure to inform a criminal defendant of the immigration consequences of a criminal conviction before entering into a plea agreement.  Earlier this week, in Chaidez v. United States, Justice Kagan, writing for six other Justices, concluded that, under the principles set out in Teague v. Lane (1989), Padilla should not apply retroactively to criminal convictions entered before March 2010.

Justice Sotomayor, joined by Justice Ginsburg, dissented.  She reasoned that, rather than establish a new rule, Padilla “did nothing more than apply the existing rule ofStrickland v. Washington (1984),” governing ineffective assistance of counsel, “in a new setting.”

Chaidez is the latest application of the Teague v. Lane retroactivity test.  By most accounts, Padilla represented a significant change in the law.  Consequently, it proved challenging for Chaidez to prevail in showing that, for retroactivity purposes, Padilla did not in fact create a “new” or “novel” rule.  A majority of the Court ruled that the change in the law was sufficiently significant that it should not apply retroactively."

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The best choice for pope? A nun. - E.J. Dionne - The Washington Post

The best choice for pope? A nun. - The Washington Post: "by E.J. Dionne

Electing a nun as pope would electrify women all over the world. And those who think that Catholics in the developing world would object to a female pope should note that women have been elected to lead governments in, among other places, India, Chile, Brazil, Liberia, Nicaragua, the Philippines, Argentina and Dominica. And a church that has made opposition to abortion a central part of its public mission should consider that older men are hardly the best messengers for this cause. Perhaps a female pope could transform the discussion about abortion from one that is too often rooted in harsh judgments (and at times, anger with modernity) into a compassionate dialogue aimed at changing hearts and minds rather than changing laws."

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Laurel Terry's "Top Ten International Legal Profession Stories of 2012" - Legal Ethics Forum

Prof. Laurel Terry has compiled a list of the top 10 legal ethics issues of 2012.  Although the Jacoby & Myers challenge seems headed to another court, we will inevitably face the issues of non-lawyer ownership of law firms.  Although we have toyed with partnerships of lawyers and accountants, the Brits have gone whole hog with "alternative business structures". If we follow their path you will graduate from law school and start off at Sears, Walmart, or Lowes. - GWC
Legal Ethics Forum: Laurel Terry's "Top Ten International Legal Profession Stories of 2012":

Top Ten International Legal Profession Stories of 2012

Laurel Terry (LTerry@psu.edu), Penn State Dickinson School of Law, USA 

1. 1.      ABS Goes Live in the UK

2012 was the year that the UK Solicitors Regulation Authority issued alternative business structure licenses.  The stage had been set by the 2007 UK Legal Services Act which created a regulatory framework that allowed (and arguably encouraged) ABS.   After years of discussion in articles and at conferences, it finally happened.  I predict that ABS will dramatically reshape legal services not only in England and Wales, but elsewhere in the world.  ABS licenses have been issued to, among others, The Co-Operative, which is a mutually-held company that operates grocery, travel, financial services, and funeral service businesses and plans to add 3,000 solicitors in the next five years to challenge the traditional  “High [Main] Street” firms.  Additional ABS licenses have been issued to an arm of Australian publicly-traded law firm Slater & Gordon (Russell Jones & Walker), UK firm Irwin Mitchell,  legal expenses insurer Abbey Protection, a claims management company called Parabis that has private equity backing, and a consultancy headed by Cherie Booth QC.  Transatlantic law firm DLA Piper has an ownership interest in LawVest, which reportedly has applied for an ABS license.

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Barack Obama - editor

Why haven't the White House speechwriters learned to double-space?  
Click HERE for a zoomable version which enables you to see Barack Obama's edits of the draft State of the Union Address.

Keep Law School at Three Years - NJ Law Journal Editorial Board

Reviewing the options for two year legal education - not the reduced classroom hours being considered in New York  but the reduced "residency" requirements - the New Jersey Law Journal Editorial Board calls for retaining the current three year model.  We are skeptical about outside of school mentoring models.  There are few controls on the nature of the supervision - and today's students already get a lot of that via externships and clinics.  As a champion of what I call engaged legal education I  am skeptical of thetwo year dip into practice post clerkship  after elite law school' model of faculty selection - because it shorts the practical.   But I don't think that being `too academic' is the core problem. It is the technology and economic restructuring that creates too few jobs, rather than too many years of law school.  Cost is of course a key factor but the root of that  is too little support for public law schools which can produce government and public interest lawyers. And there is too little funding for public defenders and too little "civil Gideon" such as for family law and immigration issues. - GWC

Keep Law School at Three Years - NJ Law Journal Editorial Board

We appreciate the observation of the dean of Vermont Law School that a two-year legal education is an appropriate response to concerns about the financial aspects of legal education, in that it "reduces the cost of legal education and allows students to enter the work force a year earlier."
But on balance, we align ourselves with those who believe that there is more at stake than finances. The first two years of study are mostly devoted to what the law is — that is, sufficient information to pass a bar exam. The third year deals largely with the circumstances in which the law is applied, which should include practical clinical work under law school supervision, law review and moot court. It provides an opportunity to see the law's effect in various areas, giving the student a time to reflect on which areas are personally of most interest. And it engages the mind more broadly in legal problem solving, both orally and in writing.
The third year is, in practical terms, a graduate period within a graduate program, which should not be compressed into the first two-year's experience.

Balkinization: Ronald Dworkin: A Eulogy

Balkinization: Ronald Dworkin: A Eulogy: by Jim Fleming, Boston University Law School

  Ronald Dworkin is widely and rightly viewed as the most important legal philosopher of our time and as one of the leading figures in moral and political philosophy. In the words of Marshall Cohen, Dworkin’s jurisprudential writings “constitute the finest contribution yet made by an American writer to the philosophy of law.” And Cohen wrote those words when Dworkin published his first book, Taking Rights Seriously, in 1977! His many outstanding subsequent books and articles made good on that early and prescient assessment. Dworkin is unmatched and unrivaled in legal philosophy and constitutional theory.
            In the words of Tim Scanlon, Dworkin is “our leading public philosopher.” He regularly published essays on legal and political subjects in the New York Review of Books from 1968 until recently. Like many readers, I eagerly opened each issue hoping to find a new piece by Dworkin. I shall miss that. As he said of Judge Learned Hand, I would say of Dworkin: he wrote like a dream. Dworkin had the rare gift of being able to write abstractly in legal philosophy and constitutional theory yet also to write accessibly for the general educated citizen. He brought out the issues of moral and political principle at the heart of the major political and constitutional issues of the day. His writing not only bristles with brilliant insights but also exhorts and uplifts. Moreover, in courageous and spirited exchanges with leading conservatives, like Richard Posner, Robert Bork, and Antonin Scalia, he gave as good as he got and then some!

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Obama's passionate pragmatism | xpostfactoid

Presidents'  Day weekend, sitting in our house in Maine watching the snow drift, has been an excellent time to think about Presidents, particularly the current one who conveniently provided a script for analysis.  What struck me most about the President's tone was his confidence.  And wouldn't you be if you had just been re-elected President after being consistent on policy for your entire public life?  Didn't he do what he said he would while campaigning?  And re-elected as the first bi-racial African-American President?  Andrew Sprung has a terrific analysis of the speech - click through for that. Below is his core analysis of Barack Obama.s fifth State of the Union address.  The bold phrases below are Sprung's, not Obama's.  - GWC
Obama's passionate pragmatism | xpostfactoid: by Andrew Sprung

Obama's repeated plea to the nation tonight was to face reality: his tone was relentless reasonability. He spoke with a distilled fluency of a man who has been articulating the same values and proposing essentially the same policies (excepting gun control)* for six years on the national stage and now speaks with the knowledge that through several permutations and waves of oppositional hysteria he has still has (or has regained) a majority with him on the big stuff.

And so he argued, not only as if he were himself convinced but convinced that we are convinced: Deficit reduction has to be balanced. Undocumented immigrants have to be offered a path to citizenship as part of comprehensive immigration reform. The nation has to invest in the pillars of shared prosperity: alternative energy, education, infrastructure. Climate change is real and wreaking havoc.  The level of gun violence we live with is insane. Everyone has a right to vote without standing in line for five, six, seven hours. As he said with respect to immigration reform: "we know what needs to be done."

Read the speech, watch, and listen:

Legal Ethics Forum: ABA Adopts Final Proposals from Ethics 20/20

Legal Ethics Forum: ABA Adopts Final Proposals from Ethics 20/20: summary by chief reporter Andrew Perlman:

Resolution 107A amended Model Rule 5.5 so that it expressly permits qualified foreign lawyers to serve as in-house counsel while based at their employers’ U.S. offices. (The accompanying report is here.)

Resolution 107B amended the 2008 ABA Model Rule for Registration of In-House Counsel to bring foreign lawyers within the scope of that Rule.  (The accompanying report is here.)

Resolution 107C amended the ABA Model Rule on Pro Hac Vice Admission so that it provides guidance to judges who may be asked to grant pro hac vice admission to qualified foreign lawyers.  (The accompanying report is here.)

Resolution 107D amended Comment [5] to Rule 8.5 of the Model Rules of Professional Conduct so that it expressly allows a lawyer and client to specify a particular jurisdiction as the jurisdiction where the “predominant effect” of the lawyer’s conduct will occur for purposes of a choice of law analysis under Model Rule 8.5. (The accompanying report is here.)

An overview report describing each of these Resolutions is here. 

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Brad Wendel on the ABA on Legal Education - LEGAL ETHICS FORUM

Cornell law prof Brad Wendel comments on the recent Times account of the ABA discussions of the legal education crisis.  Boiled down the main thrusts are its too damn expensive, and its not practical enough.  Some push for more practicing lawyers as (low paid) adjuncts.  Wendel comments on the merits of academia, and emphasizes that teaching and practical understanding are overlapping but "distinct" skills.  I've been trying to become a better teacher for 17 years.  It's hard! Certainly my 30 years of practice and engagement in the bar gives me a certain kind of practical orientation, and the confidence of knowing how certain things are done.  But my academic research gives me a perspective that one does not have as a practitioner tied usually to a single jurisdiction and a relatively narrow swath of cases. - GWC
Legal Ethics Forum: The ABA on Legal Education: by Brad Wendel

"Speaking of the disjunction between the academy and practice, the article quotes a retired partner at Williams and Connolly, teaching as an adjunct at GW, calling for the increased use of adjuncts.  I tend to bristle a bit at the assumption that any experienced lawyer could be a good teacher, as though there is nothing to effective teaching beyond knowing the underlying subject matter.  Some lawyers may be good teachers, but the skill sets involved in these two activities are distinct, if overlapping.  Many lawyers who wish to serve as adjuncts may not have thought about issues such as:  What is the right mix of providing information vs. engaging the students in discussion?  Do you cold-call or take volunteers (and what are the pros and cons of each)?  How do you balance responsiveness to student questions vs. the need to cover the material you assigned for the day?  What do you think about PowerPoint and iClickers? 

A more subtle, but very important skill is breaking down something you understand completely and explaining it to someone who is coming to it for the first time.  I've been teaching torts for 14 years and, believe me, understanding something like proximate cause or assumption of risk is very different from explaining it.  Then there are all of the issues related to exams:  How should they be structured (essay, multiple-choice, etc.), how broad or deep should the coverage be, what is the right blend of issue-spotting and analysis, how do you compare different answers for grading purposes, and so on.  You get better at all of these things with experience, but it does not follow that experience at being a lawyer necessarily translates into being an effective teacher. "

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Should the Justices attend the SOTU? - Legal Ethics Forum

Stephen Gillers suggested the slogan "'no scotus @ sotu".  John Steele embraced it.  I think they should all attend the State of the Union Address.  In costume.  Silent.  They might learn something.  Other commenters have different oservations. - GWC
Legal Ethics Forum: The Justices Stand and Applaud - or Don't:posted by Stephen Gillers

 "The Justices Stand and Applaud - or Don't "AT the State of the Union yesterday, the Justices (the six who were there) stood and clapped when the President expressed appreciation for the military. Otherwise, they sat fand did not clap. I can understand that when the line is, e.g., about passage of the Violence Against Women Act, or gun violence, or raising the minimum wage. But why passivity when the line is about enabling people who work hard to get ahead or opening the door of opportunity to children across America? "

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Unquotable: The Annotated 2013 State of the Union - James Fallows - The Atlantic

Except for 'not red states, not blue states, but the United States of America" Barack Obama - a fine rhetorician - is not a generator of snappy lines.  No Kennedyesque "ask not what your country can do for you..." phrase will capture the Obama years.  Former Presidential speechwriter and analyst of political rhetoric James Fallows dissects Obama's fifth State of the Union address.  An excerpt from the Fallows intro  follows. Click though for the annotated full  text of the SOTU.  Well worth the effort.  - GWC
The Annotated 2013 State of the Union - James Fallows - The Atlantic:

Given that formal speeches make up a bigger part of Obama's still-unfolding legacy than, say, Bill Clinton's, note this remarkable fact: You can barely remember a word of what he says.

Obama's eloquence exists almost exclusively on the macro scale -- the overall impression he gives of the subject he is wrestling with, and of his own temperament and cast of mind. You could take John Kennedy as the opposite extreme; his speeches are far more memorable, and quotable, for epigrammatic phrases than for their more elaborated thoughts. Abraham Lincoln may be the one example in our public life of success at both levels. His first and second inaugural addresses, plus the Gettysburg Address, are considered in a class of their own because they combine lasting beauty of phrasing -- "malice toward none," "mystic chords of memory," "government of the people, for the people, by the people," "every drop of blood drawn by the lash" -- with depth of thought.

No one else can play in Lincoln's league -- and, perhaps in growing awareness of that fact, as Obama's career has gone on he has been more careful and sparing in drawing connections between himself and another young legislator-become-president from Illinois. (Six years ago, in his original announcement speech in Springfield, he said, "In the shadow of the Old State Capitol, where Lincoln once called on a divided house to stand together, where common hopes and common dreams still, I stand before you today to announce my candidacy for president of the United States." Tuesday night, in the U.S. Capitol, on the 204th anniversary of Lincoln's birth, Obama did not mention his name.) Still, the point remains that for a famous orator, Obama is remarkably hard to quote.

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Justice Walsh Bradley recuses from discipline case against Justice Prosser

Justice David Prosser of the Wisconsin Supreme Court was accused by Associate Justice Ann Walsh Bradley of assault and battery, to wit - putting his hands around her throat in anger.  The police did not charge Prosser but judicial disciplinary proceedings began. Justice Bradley has now recused leaving only two  of the seven members of the court to decide.  Unless they have a mechanism - such as New Jersey's Constitution provides - to temporarily assign lower court judges to achieve a quorum, the case will remain in limbo and the court riven by the unresolved controversy, as the Milwaukee Journal Sentinel reports. - GWC

  Walsh Bradley Recusal From Prosser Case posted by   Eric Lach

C-Span intrudes on SNL, already in progress

Lawyers Call for Drastic Change in Educating New Lawyers - NYTimes.com

 It's class warfare in the classrooms of America's law schools, the Times reports from the American Bar Association's annual meeting.  Business wants better-trained law graduates, and lower labor costs.   Hard for me to see how you get both.  Students want lower tuition because jobs are fewer and less lucrative than was the case a few years back.  Training in law practice requires, well, law practice.  Clinical, education is costly because lawyers need to supervise practicing students.  That leads to high faculty-student ratios. 
The ABA Section on Legal Education demands faculty governance.  Few are likely to vote themselves out of a job.  So faculty are sure to opt for taking more of the load, rather than less: reducing low-paid adjuncts, rather than tenured faculty jobs with health insurance and retirement plans.  
State high courts generally set bar admission standards.  Are they really going to allow students to take the bar after the second year of law school, reducing legal training, rather than strengthening the skill set of new lawyers?  And is anyone going to support more subsidies for public law schools so that lawyers can graduate without a $150,000 mortgage at twenty five years of age? - gwc

Lawyers Call for Drastic Change in Educating New Lawyers - NYTimes.com:

by Ethan Bronner

"DALLAS — Faced with profound and seemingly irreversible shifts, the legal profession is contemplating radical changes to its educational system, including cutting the curriculum, requiring far more on-the-ground training and licensing technicians who are not full lawyers."...

One group that came under frequent attack at the meeting here was tenured law school professors, who were criticized as having high pay, low productivity and a remote relationship with the practice of law. Robert L. Weinberg, a retired founding partner of the Washington law firm Williams & Connolly and a lecturer at George Washington University Law School, said that instead of restricting the number of adjunct lecturers like himself, law schools ought to greatly increase them because they bring real-world examples to students.

Jim Chen, a professor of law at the University of Louisville and a former dean of its law school, said that to reduce law school from three years to two would mean that, in turn, tenured professors, whom he called the biggest expense for law schools, would have to take a one-third cut in pay. But, Mr. Chen said, they would never accept that, and the impetus for change would have to come from State Supreme Courts.

Derek M. Tokaz, the research director of Law School Transparency, a legal education policy group that seeks to guide some of the changes, told the gathering that drastic changes were needed in student loans and accreditation. Rather than start with the number of required classroom minutes or student-teacher ratio, Mr. Tokaz said, what students need to know upon graduation should be agreed upon first.

As the meeting ended, one task force member, Michael P. Downey of St. Louis, summed it up. “The house is on fire,” he said. “We don’t want a report that sits on a shelf.”

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Higher order thinking skills verboten - Texas GOP

Is it actually possible that a major political party in a major state would oppose "critical thinking skills"?  Yes if you are the Texas GOP,
"Knowledge-Based Education – We oppose the teaching of Higher Order Thinking Skills (HOTS) (values clarification), critical thinking skills and similar programs that are simply a relabeling of Outcome-Based Education (OBE) (mastery learning) which focus on behavior modification and have the purpose of challenging the student’s fixed beliefs and undermining parental authority."
Texas Republican Party platform 2012
`God said it, I believe it and that settles it!'  To which they add - `And you must too!'
BTW Houston Chronicle writer Chris Ladd in his blog GOP Lifer (get the pun?) carries on the lonely struggle for rational conservatism in the Lone Star State.
And further - is there any just reason to oppose the Mexican Army taking back Texas?

Night Mail- W.H.Auden

There are a lot of good songs about trains. `Two trains running - none going my way' will never be matched by a poem about an airplane.  No plaintive whistles in the dark, no romance.  But about the mails - Yes.  There is nothing to match a public servant handing you a letter.  In these days of unjust maligning of the post office, stop, look, and listen to W.H. Auden's Night Mail (at 19:26)  h/t James Fallows

Judge Rakoff gets vigorous support in Second Circuit Appeal

The Times reports today on oral argument in S.E.C. v. Citigroup Global Markets.   The case has garnered much attention because District Judge Jed Rakoff refused to sign the order proposed by the S.E.C., saying that the Commission had not provided facts sufficient to support the proposed injunction.  
The judge asked questions of the sort that we have about the heedless pursuit of profit which so gravely injured our economy.  Among them were “What specific "control weaknesses" led to the acts alleged in the  Complaint How will the proposed "remedial undertakings" ensure that those acts do not occur again?  How can a securities fraud of this nature and magnitude be the result simply of negligence?” 
But rather than answer Rakoff's concerns the S.E.C. demanded that he show it "deference" - i.e. rubber stamp its settlement with Citigroup. Rakoff dismissed the $285 million settlement as "pocket change" for which the S.E.C. had not even extracted the price of an admission of fault in the allegedly fraudulent $1 billion "synthetic derivatives" deal in which Citigroup itself took a $500 million "short" position - betting against its own customers.. 
 If one thinks "rubber stamp" is unfair, take a look at the S.E.C.'s briefs which assert that in such cases judicial review is "at best minimal".   Except in rare circumstances the judge must "defer" to the agency.  Such a stance is an unconstitutional attack on judicial independence, Rakoff's court -appointed attorney John Wing argued in his brief. A securities scholars brief emphasized that Rakoff was exercising traditional equity jurisprudence to assure that the public interest is served by the proposed injunction.  A nicely framed brief by the attorney for Occupy Wall Street argued, persuasively in my view, that a proposed settlement with restraints in an enforcement action is not the sort of agency action for which "Chevron deference" to an expert agency is required.   The Securities and Exchange Act 15 U.S.C. 78u authorizes the S.E.C. to seek an injunction.  It does not eliminate the obligation of an equity court to probe the law and facts for a basis for the relief sought.
Former S.E.C. Chairman and General Counsel Harvey Pitt offers the Second Circuit a judicious way to resolve the matter.  Pointing to the hyperbolic arguments of the S.E.C. Pitt's brief  observes that the Commission did not attempt to respond to Judge Rakoff's questions - but rather sounded the alarm about such judicial defiance.  If the Commission had met the judge's questions directly and set forth the reasons it reached the compromise that it did with Citigroup  the SEC would  "promote transparency and improve public and judicial understanding of the impressive efforts expended by the SEC and its Enforcement Division to promote fairness in our nation’s securities markets."  It would be a pleasant surprise if the S.E.C. could produce such evidence. - gwc

City Bar to Honor Chen Guangcheng

Chen Guangcheng, the blind Chinese activist dubbed a "barefoot lawyer" by his champion Prof. Jerome Cohen, will be presented with an honorary membership in the New York City Bar Association - the nation's oldest.

The Dangers of Rights Lawyering in China and the Role of 
American Law Firms: A Conversation with Chen Guangcheng 
and Professor Jerome Cohen; 
Presentation of City Bar 
Honorary Membership to Chen Guangcheng
Thursday, February 7, 2013, 6 pm - 8 pm 
New York City Bar Association, 42 West 44th Street, New York, NY

Why police lie under oath

The impulse is strong to say NO, that's unfair, because police oficers are sworn to uphold the law - just like lawyers are.  But I often emphasized the importance of accuracy in testimony by saying to my clients "a lie in a civil case is like a black ink spot on a white shirt.  In a criminal case everyone is lying - the defendants, the victims who were someplace they shouldn't have been, and the cops  - especially the narcs - who hold the defendants in such contempt that they don't bother to tell the truth."  That's the way it looked to me when I was trying cases for the Public Defender in Newark.  - GWC
Why police lie under oath. - NY Times

by Michelle Alexander 

Remarkably, New York City officers have been found to engage in patterns of deceit in cases involving charges as minor as trespass. In September it was reported that the Bronx district attorney’s office was so alarmed by police lying that it decided to stop prosecuting people who were stopped and arrested for trespassing at public housing projects, unless prosecutors first interviewed the arresting officer to ensure the arrest was actually warranted.

Jeannette Rucker, the chief of arraignments for the Bronx district attorney, explained in a letter that it had become apparent that the police were arresting people even when there was convincing evidence that they were innocent. To justify the arrests, Ms. Rucker claimed, police officers provided false written statements, and in depositions, the arresting officers gave false testimony.
Peter Keane, a former San Francisco Police commissioner,... offered two major reasons the police lie so much. First, because they can. Police officers “know that in a swearing match between a drug defendant and a police officer, the judge always rules in favor of the officer.” At worst, the case will be dismissed, but the officer is free to continue business as usual. Second, criminal defendants are typically poor and uneducated, often belong to a racial minority, and often have a criminal record.  “Police know that no one cares about these people,” Mr. Keane explained.
All true, but there is more to the story than that.
Police departments have been rewarded in recent years for the sheer numbers of stops, searches and arrests. In the war on drugs, federal grant programs like the Edward Byrne Memorial Justice Assistance Grant Program have encouraged state and local law enforcement agencies to boost drug arrests in order to compete for millions of dollars in funding. Agencies receive cash rewards for arresting high numbers of people for drug offenses, no matter how minor the offenses or how weak the evidence. Law enforcement has increasingly become a numbers game. And as it has, police officers’ tendency to regard procedural rules as optional and to lie and distort the facts has grown as well. 

Alexander is the author of “The New Jim Crow: Mass Incarceration in the Age of Colorblindness.”

Sad: more revelations of episcopal failure on child abuse

After another sickening disclosure of the Church hierarchy's abject failures in the child abuse scandal Jose Gomez, the Archbishop of Los Angeles has announced in a pastoral letter that retired Archbishop Cardinal Roger Mahony will no longer speak publicly, and that Santa Barbara Auxiliary Bishop Thomas Curry has resigned.  Mahony is not barred from priestly duties.  He still is a Cardinal - and can cast a vote for the next Ppe.  The Church's moral standing and the faithful's pride in it has plummeted.  The hierarchy's lecturing on gay marriage and abortion stand in dramatic contrast to their shameful self-protective conduct for many decades.  - GWC
The pastoral letter:

My brothers and sisters in Christ, This week we are releasing the files of priests who sexually abused children while they were serving in the  Archdiocese of Los Angeles.  These files document abuses that happened decades ago. But that does not make them less serious.  I find these files to be brutal and painful reading. The behavior described in these files is terribly sad and evil. There is no excuse, no explaining away what happened to these children. The priests involved had the duty to be their spiritual fathers and they failed.

We need to acknowledge that terrible failure today. We need to pray for everyone who has ever been hurt by members of the Church. And we need to continue to support the long and painful process of healing their wounds and restoring the trust that was broken.
I cannot undo the failings of the past that we find in these pages. Reading these files, reflecting on the wounds that were caused, has been the saddest experience I’ve had since becoming your Archbishop in 2011.
My predecessor, retired Cardinal Roger Mahony, has expressed his sorrow for his failure to fully protect young people entrusted to his care. Effective immediately, I have informed Cardinal Mahony that he will no longer have any administrative or public duties. Auxiliary Bishop Thomas Curry has also publicly apologized for his decisions while serving as Vicar for Clergy. I have accepted his request to be relieved of  his responsibility as the Regional Bishop of Santa Barbara.

To every victim of child sexual abuse by a member of our Church: I want to help you in your healing. I am profoundly sorry for these sins against you.
To every Catholic in the Archdiocese of Los Angeles, I want you to know: We will continue, as we have for many years now, to immediately report every credible allegation of abuse to law enforcement authorities and to remove those credibly accused from ministry. We will continue to work, every day, to make sure that our children are safe and loved and cared for in our parishes, schools and in every ministry in the Archdiocese.
In the weeks ahead, I will address all of these matters in greater detail. Today is a time for prayer and reflection and deep compassion for the victims of child sexual abuse.  I entrust all of us and our children and families to the tender care and protection of our Blessed Mother Mary, Our Lady of Guadalupe and Our Lady of the Angels. 

Sincerely yours in Christ,
Most Reverend José H. Gomez
Archbishop of Los Angeles