Sunday, June 30, 2013

Balkinization: Tendentious, mendacious or audacious? John Roberts rewrites the 10th Amendment

Balkinization: Tendentious, mendacious or audacious? John Roberts rewrites the 10th Amendment:
by Sanford Levinson

"One of the most astounding sentences in Roberts’s egregious Shelby County opinion gutting the Voting Rights Act is the following (slip op., p. 9): “Indeed, the Constitution provides that all powers not specifically granted to the Federal Government are reserved to the States or citizens. Amdt. 10.” (emphasis definitely added) This is, of course, a highly tendentious paraphrase of the text..." 

The Tenth Amendment actually reads " The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people...."

The issue was addressed in the case McCulloch v. Maryland (1819) which voided a state tax n the national bank.  Justice John Marshall wrote:

The Government of the Union, though limited in its powers, is supreme within its sphere of action, and its laws, when made in pursuance of the Constitution, form the supreme law of the land.
There is nothing in the Constitution of the United States similar to the Articles of Confederation, which exclude incidental or implied powers.
If the end be legitimate, and within the scope of the Constitution, all the means which are appropriate, which are plainly adapted to that end, and which are not prohibited, may constitutionally be employed to carry it into effect.
Whatever the original compact it was replaced by the post Civil War Amendments, which enable the Congress to enforce their promises by "appropriate legislation".
Roberts, Scalia, and the other conservatives vision is of state sovereignty as the fundamental sovereignty and that of the United states as contractual and secondary - except in the case of specific authorization in the text of the Constitution.

Saturday, June 29, 2013

Congress should move forward to restore Voting Rights Act - NJ Law Journal Editorial Board

The prestigious, if generally liberal, editorial board of the New Jersey Law Journal has called on the state's Congressional delegation to take up the suggestions of Republican leaders. Eric Cantor and James Sensenbrenner that they say they will act to blunt the effect of Shelby County, Alabama v. United States.  The "stunning" Supreme Court ruling declares unconstitutional the key provision of the Voting Rights Act that bars electoral changes in the states of the former confederacy unless the federal government clears the change. - GWC

A Way Forward on Voting Rights - NJ Law Journal Editorial Board
For those who remember the injured marchers in Selma, the bloodied faces of John Lewis and others from the Student Nonviolent Coordinating Committee, Fannie Lou Hamer and the Mississippi Freedom Democratic Party, the Voting Rights Act is seen as scripture: untouchable. That the Supreme Court has stricken a part of it provokes powerful feelings of dismay.
Shelby County v. Holder is a stunning decision. In striking §4 of the Voting Rights Act of 1965, Chief Justice John Roberts Jr. introduced a new idea: that Congress must adjust its remedies to "current conditions" or face the terrible swift sword of constitutional review. A chief justice who began his tenure by pledging a jurisprudence of umpiring balls and strikes has changed the rules.
Deploring the motives of the justices is unproductive and unwarranted. They doubtless are convinced of the correctness of their conclusions. The chief justice certainly spoke plainly enough. Whether we agree with him that the court moved carefully, necessarily and reluctantly, or with Justice Ruth Bader Ginsburg, who saw hubris, we must ask what to do now.
Equally unproductive would be to despair that the court's invitation to Congress to devise a new formula is an unachievable dead end barred by the present partisan divide. The need to act is plain. Immediately following the decision, Texas Attorney General Greg Abbott, freed of §4's preclearance requirement, announced that he would immediately implement the state's rigorous voter-identification law, SB 14. Last year Texas, denied preclearance by the U.S. attorney general, sought a declaratory judgment that its law was not discriminatory. The Court of Appeals for the District of Columbia denied the relief, saying "Section 5 prohibits covered states from implementing voting laws that will have a retrogressive effect on racial minorities. Texas, seeking to implement its voter ID law, bears the burden of proof and must therefore show that SB 14 lacks retrogressive effect. But as we have found, everything Texas has submitted as affirmative evidence is unpersuasive, invalid, or both."
The U.S. now faces the burden of litigation to stop Texas from implementing a voter ID that the D.C. Circuit found to be of dubious legality. Revision of §4 could prevent the balance of the Voting Rights Act from creating a mass of costly, contentious litigation between federal and state governments. Fortunately, the overwhelming congressional consensus that passed the revised, now stricken Voting Rights Act in 2006 may not be a corpse.
We are encouraged by the declaration of Minority Leader Eric Cantor, R-Va., that he was moved by the time he spent with Rep. John Lewis and that he is "hopeful Congress will put politics aside, as we did on that trip, and find a responsible path forward that ensures that the sacred obligation of voting in this country remains protected." In a similar vein James Sensenbrenner, R-Wis., declared, "The Voting Rights Act is vital to America's commitment to never again permit racial prejudices in the electoral process. Section 5 of the Act was a bipartisan effort to rectify past injustices and ensure minorities' ability to participate in elections, but the threat of discrimination still exists. I am disappointed by the Court's ruling, but my colleagues and I will work in a bipartisan fashion to update Section 4 to ensure Section 5 can be properly implemented to protect voting rights, especially for minorities."
We urge our congressional delegation not to despair and to work to move forward with determination to make a reality the bipartisanship of which Cantor and Sensenbrenner speak.  

Gov. Christie: Withdraw veto of Gay Marriage Bill - NJ Law Journal Editorial Board

The New Jersey Law Editorial Board, eminence grise of the state's bar, has called on Governor Chris Christie to withdraw his veto of the gay marriage bill the legislature passed.  In light of United States v. Windsor New Jersey's civil union statute, once progressive, is now an obstacle to federal tax relief and benefits for those who avail themselves of the law.  Better to go across the river and marry in New York than stay home. - GWC

Rights and Benefits Denied - NJ Law Journal Editorial

In Lewis v. Harris (2006), the New Jersey Supreme Court decided that the state constitution did not compel recognition of same-sex marriage. The majority, led by Justice Barry Albin, deferred to the Legislature on this emotionally charged issue but made it clear that the rights of those in civil unions must be equal to those who are married:
"Our decision today significantly advances the civil rights of gays and lesbians. We have decided that our State Constitution guarantees that every statutory right and benefit conferred to heterosexual couples through civil marriage must be made available to committed same-sex couples. Now the Legislature must determine whether to alter the long accepted definition of marriage."
Although not discussed in Lewis — a state constitutional challenge — the court acted in the shadow of the federal Defense of Marriage Act, passed in 1996, which barred federal benefits to persons married in states that permit gay marriage. In that context, the Lewisguarantee of "every statutory right and benefit" available was a matter of state law. That landscape has been changed by the U.S. Supreme Court's decision in U.S. v. Windsor. Equal protection and due process now require federal recognition of same-sex marriages entered into in states which permit them.Same-sex married persons around the country will now be entitled to spousal benefits under federal law. They will file joint tax returns and obtain pension and Social Security benefits. But New Jersey couples in civil unions will not have those rights — unless they go elsewhere to marry. We recognize that not everyone agrees with that ruling. Gov. Chris Christie has labeled it a "bad decision." We recognize his right. We, too, sometimes disagree with the U.S. Supreme Court. But the landscape has changed. The Legislature passed a measure permitting same-sex marriage. The governor refused to sign it, saying the matter should be submitted to a referendum. It is now time for the governor to reconsider — despite his personal views on same-sex marriage — and to examine the needs of gay and lesbian partners, citizens of New Jersey who are denied federal benefits because we have not yet recognized their right to marry.Board members Ronald Chen, Lawrence Lustberg and Edwin Stern recused from this editorial.

Furlough-facing lawyers cannot avoid defending policy - New Jersey Ethics Commitee

Government lawyers who may be furloughed due to the federal sequester generally are not conflicted out of counseling or advocating for their agencies on the matter, a New Jersey Supreme Court committee said Monday in a formal opinion.
Like all civilian federal employees, agency lawyers face the possibility of one-day-a-week furloughs as a result of the series of automatic cost-saving budgetary cuts that took effect at the beginning of the year.
In "accordance with sound public policy, mass disqualification of all government lawyers in that class is not warranted by the Rules of Professional Conduct," the Advisory Committee on Professional Ethics held in Opinion 726.

Tuesday, June 25, 2013

Fishkin - : The Way Forward After Shelby County

It is a strange federalism that is emerging on the Untied States Supreme Court.  It has themes but not coherence. The most dangerous is "states have rights too".  Underlying that is the idea that the fundamental sovereignty is that of the states, not the people.  One sees this in the preamble to the Constitution of the Confederate States of America:
We, the people of the Confederate States, each State acting in its sovereign and independent character, in order to form a permanent federal government, establish justice, insure domestic tranquillity, and secure the blessings of liberty to ourselves and our posterity invoking the favor and guidance of Almighty God do ordain and establish this Constitution for the Confederate States of America."
Below is a critique by Prof. Fishkin that I think has much merit. Partcularly impressive is his The Dignity of the States which recently appeared in the Yale Law Journal Online. - GWC

Balkinization: The Way Forward After <i>Shelby County</i>:
by Joseph Fishkin, University of Texas
I want to suggest in this post that while it’s correct that this distinction makes little immediate difference, in jurisprudential terms, striking Section 4 was in some ways more radical than striking Section 5. The Court’s approach to Section 4 represents a new departure in American federalism, one only hinted at in dicta in one previous case: a principle that the states’ “equal sovereignty” constrains Congress’ ability to treat one state differently from another. This principle is one that should not have survived Reconstruction. Its appearance in the federalism jurisprudence of 2013 does not augur anything good.
Although the Court would not put it this way, let’s be blunt. Today’s decision was a major victory for all those who have ever viewed federal civil rights laws as unfairly victimizing and singling out the white South. I say more about this in this recent essay about the principle of “equal sovereignty” that the Court endorsed today. I won’t repeat it all here. To fully understand what happened today, one needs to go back not only to the Nixon and Reagan era of backlash against civil rights laws (and the related revival of talk of “state sovereignty”), but also to a century or so before that.
It was the opponents of Reconstruction and the Reconstruction Amendments who first put forward the argument that the enforcement of black civil rights against the Southern states in particular was an affront to those states’ equal sovereignty. That is why I think that in jurisprudential terms, and in the long sweep of history, the choice to strike down Section 4 in particular, in part on “equal sovereignty” grounds, was not modest at all, but radical. As Justice Ginsburg says in dissent (p.30), going this route took considerable “hubris.”

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The Supreme Court’s Voting Rights Blunder -- Koppleman - New York Magazine

Today's decision in Shelby v. Holder certainly ends the era which inspired me in my youth: the lunch counter sit-ins, ending the segregated southern school systems in the south, Misssippi Freedom summer to enforce voting rights.   Today the conservative majority on the Supreme Court claims the Voting Rights Act forces the southern states to prove they don't discriminate - when they think it is clear that bygones should be bygones.  We know that force isn't necessary to persuade them that a civil rights measure is unlawful - Seattle's voluntary school integration plan was stricken in another Roberts-led majority opinion.     I don't know what motivates John Roberts or the other conservatives on the court - aside from a gut resistance to any public action to eliminate the effects of our legacy of slavery, segregation, and racism. As usual Andrew Koppleman has a perspective close to mine.  - GWC

The Supreme Court's Voting Rights Blunder
by Andrew Koppleman, Northwestern Law School  
 "Roberts writes: “There is no denying ... that the conditions that originally justified these measures no longer characterize voting in the covered jurisdictions.” There is a sense in which this is trivially true, the way it’s true that you can never step into the same river twice. The real question is whether racism is still powerful enough in these places to justify federal intervention. Congress thinks it is. But Roberts is sure that he knows better. The other notorious fact is a wave of voter I.D. laws that are being enacted across the United States. These laws are being justified with the rationale that they are necessary to prevent voter fraud. But that’s a transparent lie. The evidence of such fraud actually occurring is nil. The real reason for such laws is that they reduce the voting rates of blacks and Hispanics, and therefore advantage Republican candidates. Racially motivated voter suppression is still with us. The Supreme Court has just made it easier."

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Legal Ethics Forum: New survey by Altman Weil bespeaks caution, says firms are proceeding cautiously

Legal Ethics Forum: New survey by Altman Weil bespeaks caution, says firms are proceeding cautiously:
News of the new Altman Weil survey. Comment here. Summary of key points:
The fifth annual Altman Weil Law Firms in Transition Survey finds law firm leaders are acutely aware of the changes that the profession is facing. 
  • They are concerned that the demand for legal work is flat or shrinking in many practices. 
  • They feel real pricing pressure from clients. 
  • They recognize the competitive forces of commoditization and the emergence of lower-priced, non-traditional service providers.  
  • They are coming to grips with the idea that aggressive growth in lawyer headcount may no longer make sense. 
  • They believe that the pace of change is increasing.
Now in its fifth year, the survey shows the ongoing evolution of thinking on many of these issues including some dramatic shifts in opinion since 2009.  However, there is less evidence of tangible changes in how law firms operate. 
Headcounts and billing rates are still up on average – albeit far less than they would have been pre-recession.  Firms use alternative pricing, but in a limited (and usually non-strategic) way.   There is some tightening of partnership admission standards at the top of the pyramid, and broader use of contract lawyers at the base. 

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Mass Layoffs at Weil Gottshall Law Firm -

Two former employees of Weil, Gotshal & Manges leaving the General Motors building in New York City after layoffs were announced on Monday.
Two women told to clear out their desks at Weil on Monday

The "new normal"? - gwc
Mass Layoffs at a Top-Flight Law Firm - by Peter Lattman
Layoffs are a brutal reality of corporate America. During fallow periods, publicly traded companies, including the big banks, routinely cull their ranks. The country’s largest law firms, by contrast, have historically taken a kinder, gentler approach, rarely firing employees en masse.
The news on Monday that Weil, Gottshal & Manges, among the nation’s most prestigious and profitable law firms, was laying off a large number of lawyers and support staff while also reducing the pay of some of its partners, sent shock waves through the industry and underscored the financial difficulties facing the legal profession.
Sixty junior lawyers, known at firms as associates, lost their jobs. That amounts to roughly 7 percent of Weil’s associates. Annual compensation will be reduced for roughly 30 of the firm’s 300 partners, in many cases by hundreds of thousands of dollars. And 110 non-lawyers — roughly half of them secretaries — were let go.

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Shelby County: Time for the right to abandon the "judicial activism" meme

The Pettus Bridge - Selma, Alabama, M.L. King in the lead, March 9, 1965
"Judicial activism" was always a phony complaint, a way for segregationists to cry "N...".  Now that the right wing of the Supreme Court has stricken the Voting Rights Act by which Congress enforces the Fifteenth Amendment, it is doubtless too much to hope that the tag line will be abandoned on the political right.  I agree with Justice Ruth Ginsburg and the court's liberals dissenting today in Shelby County v. Holder:
"In the Court’s view, the very success of §5 of the Voting Rights Act demands its dormancy. Congress was of another mind. Recognizing that large progress has been made, Congress determined, based on a voluminous rec­ord, that the scourge of discrimination was not yet extir­pated. The question this case presents is who decides whether, as currently operative, §5 remains justifiable, this Court, or a Congress charged with the obligation to enforce the post-Civil War Amendments “by appropriate legislation.” With overwhelming support in both Houses, Congress concluded that, for two prime reasons, §5 should continue in force, unabated. First, continuance would facilitate completion of the impressive gains thus far made; and second, continuance would guard against back­ sliding. Those assessments were well within Congress’ province to make and should elicit this Court’s unstinting approbation." 

Monday, June 24, 2013

Another preemption loss in the Supreme Court for consumers injured by generic drugs (CL&P Blog)

Brian Wolfman of  Public Citizen lays out the meaning of today's dreadful generic drug product liability decision (Justice Alito writes for the majority). The only consolation here - and it is just vanity - is that Justice Sotomayor cited me in her dissent in Mutual Pharmaceutical v. Bartlett:

This expanded notion of impossibility pre-emption threatens to disturb a considerable amount of state law.... This could have serious consequences for product safety. State design-defect laws play an important role not only in discovering risks, but also in providing incentives for manufacturers to remove dangerous products from the market promptly. See Levine, 555 U. S., at 578– 579; Bates, 544 U. S., at 451; see also Conk, Is There a Design Defect in the Restatement (Third) of Torts: Products Liability? 109 Yale L. J. 1087, 1130 (2000) (“The tort system can encourage FDA regulatory vigor and competence”). If manufacturers of products that require preapproval are given de facto immunity from design-defect liability, then the public will have to rely exclusively on imperfect federal agencies with limited resources and sometimes limited legal authority to recall approved products. And consumers injured by those products will have  no recourse. 

Another preemption loss in the Supreme Court for consumers injured by generic drugs (CL&P Blog): by Brian Wolfman 
 "The Supreme Court today held in Mutual Pharmaceutical Co. v. Bartlett that FDA approval of a generic  prescription drug preempts a state-law damages claim premised on the drug's design defect. The 5-4 majority opinion is written by Justice Alito. Basically, Justice Alito says that a design-defect claim is, in effect, a claim that the drug's label should be changed to warn of the drug's design-induced hazards, and state law has no business premising a tort duty on a change in an FDA-approved generic drug label (which is what the Court held earlier in PLIVA v. Mensing). There's a dissent by Justice Breyer joined by Justice Kagan and a dissent by Justice Sotomayor joined by Justice Ginsburg. Another loss for injured consumers' access to the courts. So, after this loss, let's see where we are with access to the courts for people injured by prescription drugs and medical devices."

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Fairness in Disclosure of Evidence - NJ Law Journal Board backs Murkowski initiative

The New Jersey Law Journal Editorial Board has called on the state's United States Senators to join with Sen. Lisa Murkowski (Alaska) to adopt a standard of evidence disclosure broader than the constitutional minimum.  In Brady v. Maryland (1963) the high court compelled disclosure to criminal defendants of "material" and "exculpatory evidence".  The New Jersey experience - an `open file' disclosure of all but necessarily confidential sources - shows the proposed standard to be a modest and workable step.  - GWC
Fairness in Disclosure of Evidence:
Prompted by the disclosure that U.S. Department of Justice lawyers hid favorable evidence from the defense in the prosecution of the late Sen. Ted Stevens, the Fairness in Disclosure of Evidence Act was introduced last year. The measure had bipartisan support but died in committee. Sen. Lisa Murkowski, R-Alaska, plans to reintroduce the bill, the premise of which is to expand the duty to hand over evidence, beyond the constitutional mandate of Brady v. Maryland (1963) to disclose material exculpatory evidence.
Fifty years of experience has proved that definition to be highly subjective and therefore problematic. The Murkowski bill would declare a duty to disclose all evidence "that may reasonably appear to be favorable to the defendant" with respect to the determination of guilt, any preliminary matter before the court or the sentence to be imposed....At hearings on the bill last year, Deputy Attorney General James Cole said that the DOJ allows disclosure in excess of the constitutional minimum "as a matter of discretion." To us that is precisely the problem. What governs the exercise of discretion? In this regard the Murkowski bill is quite cautious. It does not go so far as to declare a right to all relevant evidence (a standard narrower than a civil party's right to anything reasonably calculated to lead to admissible evidence). But the mid-ground of requiring the production of all "favorable evidence" would advance the defendant's interest in making a well-informed decision whether to plead guilty and, if necessary, mount an effective defense at trial.
Fordham law professor Bruce Green, a former federal prosecutor, suggests in an article in the Mercer Law Review that we are perhaps witnessing the old "sporting competition" attitude rather than the view that the prosecutor's duty is to do justice, not to chalk up wins.
The need for a revised "ex ante" standard is particularly acute because the avenues of relief even after disclosure are so unpromising. In Kyles v. Whitley (1995), the Supreme Court directed that nondisclosed evidence be considered in its entirety. If its suppression has a "reasonable probability" of changing the result, it is "material." That is an invitation to findings of "harmless error." Nor does the standard set in Strickland v. Washington(1984) for ineffective assistance of counsel cover much territory. Lawyers who have been denied favorable evidence are bound to be ineffective. Strickland requires an error by the defense lawyer and a lack of "confidence" in the result to merit relief....
The focus therefore should be on pre-emptive measures to assure fairness. We should not be satisfied with the constitutional minimum from our prosecutors. We should embrace the proposed statutory regime which makes favorable information disclosure — subject to reasonable exceptions such as witness security and public safety — presumptive.
What is needed, as Green says, is empirical data, which is available. One can compare the federal courts with the record in states and locales where disclosure of favorable evidence or of all evidence in state files is required. We thus already have a kind of successful natural experiment.
We support the bill and urge our state senators to join the reform effort.

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Sunday, June 23, 2013

A Case for Grade Inflation in Legal Education by Joshua M. Silverstein :: SSRN

" marks in the `C' range injure students psychologically. Students perceive C’s as a sign of failure"
Is that a reason to eliminate the grade?  I recall the sting when I got a C in a history course in law school.  This was surely a sharp blow, since I had gotten a master's degree under Howard Zinn, the radical historian, at Boston University.  But I think I deserved the C.  Rather than injuring it made an impression.  Now one man's impression is another's bruise.  But the point was that my paper - on the trial of the French revolutionary Gracchus Babeuf - was a pointless account, a mere recitation, without critical substance, of his brilliant rhetoric and defiance. So for that bruise I am grateful to the late John Anthony Scott who is recognized in this obituary on the site of the American Historical Association, which begins:
John Anthony Scott (January 20, 1916–June 25, 2010), a scholar of history and the law and a leader in history education, died at home in Holland, Massachusetts, at the age of 94. Tony, as we all called him, was variously a teacher, an author, a scholar, and a leader in the movement to make students their own historians. He sought to make teaching a central mission in the American Historical Association and in the life of the profession as a whole.
Tony Scott grew up in London, attended St. Paul’s School, and graduated from Oxford University with first-class honors in Modern Greats. He moved to New York to do graduate work in political science at Columbia University, but following the attack on Pearl Harbor he joined the U.S. army for a four-year stint. His knowledge of several European languages drew him into intelligence work; he participated in the invasion of Normandy and was wounded in the Battle of the Bulge, receiving a Purple Heart and American citizenship. He received his doctorate in history and political science in 1950.
For 30 years Scott taught history at the Fieldston School in the Bronx. Founded by Felix Adler in 1878 as the “Ethical Culture School,” the school has been influential in the field of progressive education. Scott published numerous books on educational topics. He was a contributor to the Introduction to Contemporary Civilization in the West: A Source Book, prepared for the contemporary civilization course at Columbia College (1946). That project led to Living Documents in American History (1963), one of the first collections of primary sources for classroom use. How to Use Folk Songs (1969) and Ballad of America: The History of the United States in Song and Story (1967) grew out of an organization whose newsletter Folksong in the Classroom he helped produce.Teaching for a Change (1972) articulated the central principles of the movement for “inquiry” education. Tony Scott was for some time the singer-on-the-green in Old Sturbridge Village, Massachusetts; he was an old friend of Pete Seeger....
...Scholarly volumes on both European and American history are prominent in his list of publications. Republican Ideas and the Liberal Tradition in France, 1870–1914 came out in the Columbia Studies in the Social Sciences in 1951. He edited The Defense of Gracchus Babeuf before the High Court of Vendôme (1964) and wrote Woman against Slavery: The Story of Harriet Beecher Stowe (1978). He published numerous articles on the history of the law in the Rutgers Law Review, Civil Liberties Review, and the Women’s Rights Law Reporter.
A Case for Grade Inflation in Legal Education by Joshua M. Silverstein :: SSRN: Abstract:      
This article contends that every American law school ought to substantially eliminate C grades by settings its good academic standing grade point average at the B- level. Grading systems that require or encourage law professors to award a significant number of C marks are flawed for two reasons. First, low grades damage students’ placement prospects. Employers frequently consider a job candidate’s absolute GPA in making hiring decisions. If a school systematically assigns inferior grades, its students are at an unfair disadvantage when competing for employment with students from institutions that award mostly A’s and B’s. Second, marks in the C range injure students psychologically. Students perceive C’s as a sign of failure. Accordingly, when they receive such grades, their stress level is exacerbated in unhealthy ways. This psychological harm is both intrinsically problematic and compromises the educational process. Substantially eliminating C grades will bring about critical improvements in both the fairness of the job market and the mental well-being of our students. These benefits outweigh any problems that might be caused or aggravated by inflated grades. C marks virtually always denote unsatisfactory work in American graduate education. Law schools are the primary exception to this convention. It is time we adopted the practice followed by the rest of the academy.
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Oregon Supreme Court: Capital murderer cannot opt for execution JURIST

Photo source or descriptionJURIST - Paper Chase: Oregon Supreme Court upholds governor's death penalty moratorium:
[JURIST] The Oregon Supreme Court [official website] ruled [opinion, PDF] Thursday that a death row inmate cannot reject a reprieve by the governor. Oregon Governor John Kitzhaber [official website] in 2011 issued a temporary reprieve [JURIST report] for death row inmate Gary Haugen, just before his scheduled execution, and called for an end to the state's death penalty [JURIST news archive]. Haugen, who had been convicted of two murders, then tried to seek his own death warrant, arguing that he did not want to live with the uncertainty of the indefinite reprieve. A lower court ruled for Haugen, but the Supreme Court rejected his arguments, finding that the governor's reprieve is valid and that it does not constitute cruel and unusual punishment under the Eighth Amendment [text]:
Kitzhaber welcomed the ruling [Reuters report] and again called for a review of the state's capital punishment system.
Six US states have repealed the death penalty since 2007, bringing the total to 18
We do not doubt that being on death row, awaiting possible execution, and facing uncertainty as to if, and when, that sentence might be carried out, exacts a toll on people, as at least some members of the Supreme Court have recognized. ... The Court has not concluded, however, that the uncertainty accompanying that time on death row constitutes cruel and unusual punishment. Moreover, Haugen cites no case that suggests that a reprieve or other act of clemency qualifies as cruel and unusual punishment. Thus, we reject Haugen's Eighth Amendment challenge.
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U.S. hacking China telecom and Universities: Snowden - South China Morning Post

c03b064405b482069da782905821ea99.jpgThis will make the talks on computer espionage recently agreed to by presidents Barack Obama 奥巴马 and Xi Jinping 习近平 more interesting. - GWC

US spies are hacking into Chinese mobile phone companies to steal text messages and attacking the servers at Tsinghua University, Edward Snowden has told the Sunday Morning Post.
The latest explosive revelations about US National Security Agency cybersnooping in Hong Kong and on the mainland are based on further scrutiny and clarification of information Snowden provided on June 12.The former technician for the US Central Intelligence Agency and contractor for the National Security Agency provided documents revealing attacks on computers over a four-year period.The documents listed operational details of specific attacks on computers, including internet protocol (IP) addresses, dates of attacks and whether a computer was still being monitored remotely.The Sunday Morning Post can now reveal Snowden's claims that the NSA is:
Pacnet, which recently signed major deals with the mainland's top mobile phone companies, owns more than 46,000 kilometres of fibre-optic cables. The cables connect its regional data centres across the Asia-Pacific region, including Hong Kong, the mainland, Japan, South Korea, Singapore and Taiwan. It also has offices in the US.Snowden claims that data from Chinese mobile phone companies has been compromised, with millions of private text messages mined by the NSA.Cybersecurity experts on the mainland have long feared mobile phone companies had fallen victim to back-door attacks because they were forced to go overseas to buy core technology for their networks. In recent years, those security concerns became more vocal and as a result domestic network equipment suppliers such as Huawai, Datang and ZTE started to close the technology gap, enabling the phone companies to reduce their reliance on foreign suppliers.As for the attacks at Tsinghua University, the leaked information points to the NSA hacking into the institute's servers as recently as January.Tsinghua is widely regarded as China's top education and research institute and carries out extensive work on next-generation web technologies.It is home to one of the mainland's six major network backbones, the China Education and Research Network.

Saturday, June 22, 2013

Edith Parish - killed by her helper - out on bail NY Times

Ethel Parish was killed by a man who helped her with errands.
He was free on bail when he killed her in a crack-fueled rage, police say
Courts, Prosecutors, and Public Defenders are all affected by shrinking public budgets.  Citizens - despite their desire and need for safety - are pressed for cash.  They respond to - and are the source of contradictory demands: throw away the key and cut expenses.
We at Fordham get regular security reports, not of old fashioned purse snatchings, of iPhone snatchings by young men who rob students on their way back to the Rose Hill campus on Fordham Road.  Injury is infrequent but fear is frequent.  The suspects rarely caught.  But when one is arrested, he'll have a long wait to trial in the Bronx. 
I have commented before on the role of underfunded defense lawyers.  Today's Times article focuses on the recidivism side of the coin. - GWC

Free on bail - free to commit another crime - a Bronx Story - NY Times

by Ray Rivera

On the evening of Jan. 5, 2011, Mr. Ragland was helping Ms. Parish, 70, take her air-conditioners out for the winter. But after they argued about how much Ms. Parish owed him for his work, Mr. Ragland, high on crack and in debt to a drug dealer, grabbed a knife from the kitchen counter. “I picked it up and cut her,” he told the police. Her body was discovered on the floor, stabbed 17 times.
Today, a painful question haunts Ms. Parish’s daughters: Why was Mr. Ragland not in prison in the first place?
On the day Ms. Parish died, he had two felony cases pending against him in the Bronx courts. One was a grand larceny charge, arising out of a car theft, that had been open for 15 months, more than twice the court’s standard for excessive delays. The other, a robbery charge involving a street holdup, was now more than a year old. And the Bronx judges who allowed Mr. Ragland, 52, to remain free on bail after each arrest had another reason to suspect he could be dangerous: He had already served 15 years in prison for manslaughter for stabbing an elderly man 41 times.
In another court in another place, 15 months would have been plenty of time to resolve charges that might have put Mr. Ragland away before he killed again. But not in the Bronx, home to one of the country’s most implacable backlog of felony cases....

Thursday, June 20, 2013

Gideon's Army - The film

Public defender Travis Williams gives closing remarks in court © 2013 HBO Documentary Films
Dawn Porter's documentary Gideon's Army will soon appear on HBO.  It was featured last night by John Oliver on the Daily Show.  The film tells the story of the daily heroism of public defenders.  I tried a dozen or so drug busts, purse snatching, armed robbery, and homicide cases as a public defender from 1980 - 1983 in Newark, Elizabeth, Jersey City, and New Brunswick, New Jersey.  
I was a pool attorney - not a staff attorney - of the Office of the Public Defender, State of New Jersey.  No lawyers have ever made me more proud of our profession than the career lawyers of that Office who beginning in 1982 fought over two hundred capital cases without a single execution before repeal in 2007. death penalty .  In addition to the daily burden of defense their systematic investigation and advocacy led to a consent decree which  eliminated the notorious highway racial profiling of the New Jersey State Police, transforming patrol practice which now requires video of every auto search.
I try to tell their story every chance I get.  (See, for example, my People's Electric - Engaged Legal Education at Rutgers Newark Law School in the 1960's and 1970's Fordham Urban Law Journal 2013; or the symposium Legislation, Litigation, Reflection and Repeal: The Legislative Abolition of the Death Penalty in New Jersey , Seton Hall Legislative Journal, 2008. 
Dawn Porter tells the story of public defenders - the short-handed army spawned by the Supreme Court in 1963 in Gideon v. Wainwright - the incomplete triumph of which is now marking its fiftieth anniversary.  Tragically we incarcerate more people per capita than any other country - including many we unashamedly criticize.  And that burden falls most heavily on the descendants of those we once enslaved, or whose land we took.Graffiti in Lower Ninth Ward, New Orleans, LA © 2013 Dawn Porter

Sunday, June 16, 2013

Prediction: DOMA and Prop 8

May as well go on record predicting the outcome of the same sex marriage cases:  The Court in Hollingsworth v. Perry  will dismiss the challenge to Proposition  8 on standing grounds, leaving gay marriage in place in California.  In Windsor v. United States it will strike down DOMA on full faith and credit clause grounds, leaving same sex marriage up to the states.  Justices Scalia and Ginsburg will be in the majority in both cases. - GWC

Scorecard: Well, OK on Prop 8 (which was pretty much the prevailing view), with Scalia and Ginsburg in the majority.  But on DOMA my off the top of the head opinion was wrong: plaintiffs attacked only federal benefits, did not raise full faith and credit.  The decision was a confusing welter of due process and equal protection, crafted to avoid broad implications.  [Compare the 2d Circuit opinion's lucidity*.] Ginsburg of course was in the majority but Scalia was apoplectic in dissent.
Looking forward see the New Jersey Law Journal Editorial Board's A Way Forward on Voting Rights, and the call for Gov. Christie to withdraw his veto of the gay marriage bill passed by the Legislature - Rights and Benefits Denied.
Disclosure: I am a member of the Editorial Board of the NJ Law Journal

*Our straightforward legal analysis side-steps the fair point that same-sex marriage is unknown to history and tradition. But law (federal or state) is not concerned with holy matrimony. Government deals with marriage as a civil status — however fundamental — and New York has elected to extend that status to same-sex couples. A state may enforce and dissolve a couple's marriage, but it cannot sanctify or bless it. For that, the pair must go next door.

Thursday, June 13, 2013

Supreme Court Amends First Amendment

Supreme Court Amends First Amendment - Lyle Denniston reports

No person shall engage in a demonstration within the Supreme Court building and grounds. The term “demonstration” includes demonstrations, picketing, speechmaking, marching, holding vigils or religious services and all other like forms of conduct that involve the communication or expression of views or grievances, engaged in by one or more persons, the conduct of which is reasonably likely to draw a crowd or onlookers. The term does not include casual use by visitors or tourists that is not reasonably likely to attract a crowd or onlookers.

Approved and Effective June 13, 2013
Supreme Court of the United States


Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Tuesday, June 11, 2013

Libertarianism's Achilles' Heel | E.J. Dionne | Commonweal Magazine

Murray Rothbard's call to arms
Libertarianism's failings will never be recognized by its proponents because it never has been and never wlll be tried.  They (and here I mean the usual pantheon from Murray Rothbard to Robert Nozick to the legal academy's Richard Epstein) are free to propound their rationalist, contractarian utopia.  The practical consequence is that they are always against all social welfare measures - Social Security, Medicare, Obamacare, etc.  That government  is best which governs least, etc.  But as E.J. Dionne asks - isn't the absence of libertarian government anywhere proof of its impracticality? - gwc
Libertarianism's Achilles' Heel | Commonweal Magazine:
by E.J. Dionne
We had something close to a small government libertarian utopia in the late 19th century and we decided it didn't work. We realized that many Americans would never be able to save enough for retirement and, later, that most of them would be unable to afford health insurance when they were old. Smaller government meant that too many people were poor and that monopolies were formed too easily.
And when the Great Depression engulfed us, government was helpless, largely handcuffed by this anti-government ideology until Franklin D. Roosevelt came along.
In fact, as Michael Lind points out, most countries that we typically see as "free" and prosperous have governments that consume around 40 percent of their GDP. They are better off for it. "Libertarians," he writes, "seem to have persuaded themselves that there is no significant trade-off between less government and more national insecurity, more crime, more illiteracy and more infant and maternal mortality ... ."
This matters to our current politics because too many politicians are making decisions on the basis of a grand, utopian theory that they never can -- or will -- put into practice. They then use this theory to avoid a candid conversation about the messy choices governance requires. And this is why we have gridlock.
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Edward Snowden - The Coming Out Interview with Glenn Greenwald - The Guardian

Edward Snowden says that it is not the government's right to decide what should be secret - it should be the public's decision.  But he has decided that he is the surrogate for the public.  He recognizes that "if they want to get you eventually they will".  Here is his `coming out' interview with the Guardian's Glenn Greenwald. - GWC

Monday, June 10, 2013

Trending on weibo 习近平和奥巴马 - 微博

Obama and Xi Jinping channeling Poo Bear and TiggerWeiboObamaXi.jpg-jpg

A Conservative Case for Prison Reform -

Richard Viguerie has long been an architect of the conservative movement.   In the past thirty years politicians competed to be tougher on crime.  A racist undertone was often apparent - leading to New York's massive stop and frisk program.  Now Viguerie, like a growing number of conservatives (whose distrust of government I generally find to be excessive in its individualism and lacking in compassion)  has come to doubt our reliance on incarceration.  See, for example the blog Right on Crime.  In an Op-Ed piece in today's Times he recognizes the cruelty, and ineffectiveness of the war on drugs, and our reliance on incarceration at a rate unmatched anywhere else in the world.    - GWC

A Conservative Case for Prison Reform -
by Richard Viguerie

MANASSAS, Va. — CONSERVATIVES should recognize that the entire criminal justice system is another government spending program fraught with the issues that plague all government programs. Criminal justice should be subject to the same level of skepticism and scrutiny that we apply to any other government program.
These three principles — public safety, compassion and controlled government spending — lie at the core of conservative philosophy. Politically speaking, conservatives will have more credibility than liberals in addressing prison reform.
The United States now has 5 percent of the world’s population, yet 25 percent of its prisoners. Nearly one in every 33 American adults is in some form of correctional control. When Ronald Reagan was president, the total correctional control rate — everyone in prison or jail or on probation or parole — was less than half that: 1 in every 77 adults.

But it’s not just the excessive and unwise spending that offends conservative values. Prisons, for example, are harmful to prisoners and their families. Reform is therefore also an issue of compassion. The current system often turns out prisoners who are more harmful to society than when they went in, so prison and re-entry reform are issues of public safety as well.

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A step forward for mentally impaired facing deportation - NJLJ Editorial Board

The New Jersey Law Journal Editorial Board has commended the recent decision by federal District Judge Dolly M. Gee, in an ACLU-sponsored class action,  to require assistance to the mentally incompetent who face deportation.  That assistance may be by lawyers, law students, or otherwise qualified representatives from a social service organization.  It is a step forward. - GWC

A Reasonable Accommodation

We are moving, if fitfully, toward a national consensus that we must find an orderly way to deal with the millions of immigrants who came here illegally, overstayed visas or are subject to deportation as punishment for a crime. Each year, hundreds of thousands are deported, a consequence that for many is far more severe than that provided by criminal laws. Fifty years ago, the U.S. Supreme Court in Gideon v. Wainwright mandated counsel for those charged with a crime and who cannot afford a lawyer. Today, there is a crisis of representation due to the unavailability of counsel for huge numbers of aliens facing removal from the country.
A recent federal decision, certifying a class of mentally disabled immigrant detainees held in custody without counsel, is a step in the right direction. In Franco-Gonzalez v. Holder, the U.S. District Court for the Central District of California held that the Rehabilitation Act, which bars discrimination by executive agencies, compels the Department of Justice's Executive Office of Immigration Review to provide class members with a "qualified representative" as a reasonable accommodation of disability.
After the district court ruling, the Department of Justice promptly announced that the EOIR will make qualified representatives available to unrepresented detainees who are deemed mentally incompetent to represent themselves in immigration proceedings. In addition, detainees identified as having serious mental disorders or conditions that may render them mentally incompetent to represent themselves, and who have been held in immigration detention for at least six months, will be afforded bond hearings.

John Judis - NSA snooping scandal reveals our Constitutional amnesia | New Republic

John Judis - a long time social democratic activist -  is skeptical about the President's assurances on the NSA surveillance programs.  He was editor of Radical America - a very sensible journal of the 60's and 70's.  Now with the New Republic, he is a well-regarded editor/commentator. As one with an FBI file of his own, I share Judis's  doubts. - gwc

NSA snooping scandal reveals our Constitutional amnesia | New Republic:
by John Judis
President Barack Obama has assured us that we need not be worried about the National Security Agency listening to our phone calls or monitoring our Internet use. The NSA’s programs, he said, represent “modest encroachments on privacy” that are “worth us doing” to protect the country from terrorists. Count me among those who are not reassured by Obama’s statement. I know better—from my schoolboy knowledge of the Constitution and from my own experience during the '60s with unwarranted government surveillance.   I don’t usually like to base moral judgments on what the Constitution does or does not allow, but in this case, it makes sense to do so. 
h/t TPM
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Saturday, June 8, 2013

David Simon | We are shocked, shocked…

It's not just because I am a loyal fan of Person of Interest that I am not shocked and outraged by the report about NSA searches of phone records.
David Simon | We are shocked, shocked…:
Is it just me or does the entire news media — as well as all the agitators and self-righteous bloviators on both sides of the aisle — not understand even the rudiments of electronic intercepts and the manner in which law enforcement actually uses such intercepts? It would seem so.

Because the national eruption over the rather inevitable and understandable collection of all raw data involving telephonic and internet traffic by Americans would suggest that much of our political commentariat, many of our news gatherers and a lot of average folk are entirely without a clue.
You would think that the government was listening in to the secrets of 200 million Americans from the reaction and the hyperbole being tossed about. And you would think that rather than a legal court order which is an inevitable consequence of legislation that we drafted and passed, something illegal had been discovered to the government’s shame.
Nope. Nothing of the kind. Though apparently, the U.K.’s Guardian, which broke this faux-scandal, is unrelenting in its desire to scale the heights of self-congratulatory hyperbole. Consider this from Glenn Greenwald, the author of the piece: “What this court order does that makes it so striking is that it’s not directed at any individual…it’s collecting the phone records of every single customer of Verizon business and finding out every single call they’ve made…it’s indiscriminate and it’s sweeping.”

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Why Many Retirees Could Outlive a $1 Million Nest Egg -

For the last forty years, the Republican lament is that wages are too high - especially teachers.  They chipped away at the unions, at pensions, at health insurance.  They got their wish - and then the 2008 crisis exposed that the housing bubble gave only the illusion of home equity.  - GWC
Why Many Retirees Could Outlive a $1 Million Nest Egg -
 MILLION dollars isn’t what it used to be.
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In 1953, when “How to Marry a Millionaire” was in movie theaters, $1 million bought the equivalent of $8.7 million today. Now $1 million won’t even buy an average Manhattan apartment or come remotely close to paying theaverage salary of an N.B.A. basketball player.
Still, $1 million is more money than 9 in 10 American families possess. It may no longer be a symbol of boundless wealth, but as aretirement nest egg, $1 million is relatively big. It may seem like a lot to live on.
But in many ways, it’s not.
Inflation isn’t the only thing that’s whittled down the $1 million. The topsy-turvy world of today’s financial markets — particularly, the still-ultralow interest rates in the bond market — is upending what many people thought they understood about how to pay for life after work.

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PRISM: 'I Cannot Figure Out Why This Was Classified to Begin With' - James Fallows - The Atlantic

Blog_Ellsberg.jpgAre Guardian reporter Glenn Greeenwald's NSA  disclosures really Daniel  Ellsberg/Pentagon Papers redux?

'I Cannot Figure Out Why This Was Classified to Begin With' - James Fallows - The Atlantic:
quoting Fred Kaplan's interview with Brian Jenkins of RAND about the NASA PRISM electronic surveillance program:
"I cannot figure out why this was classified to begin with. It should have been in the public domain all along. The fact is, terrorists know we're watching their communications. Well, some of them, it seems, are idiots, but if they were all idiots, we wouldn't need a program like this. The sophisticated ones, the ones we're worried about, they know this. There are debates we can have in public without really giving away sensitive collection secrets. It's a risk, but these are issues that affect all of us and our way of life."

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Friday, June 7, 2013

Strategy or Tactic? New York Attorney Malpractice Blog

Legal Malpractice Attorney & Lawyer : New York Attorney Malpractice Blog : New York City, Bronx, Brooklyn, Manhattan, Staten Island, Bronx, NYC, Queens:
By Andrew Lavoott Bluestone
Judgment calls are exempt from legal malpractice consideration. Put another way, an attorney may not be held for legal malpractice on the basis of a reasonable trial strategy even when unsuccessful. But, what is a trial strategy and what is a departure from good standards? Often the difference is in the eye of the beholder, or in a slightly more objective sense, when it is reasonable. Today, we use a criminal case, in a different setting. Here, the question is whether there was ineffective assistance of counsel.

In People v Oliveras [June 6, 2013 Court of Appeals - Rivera, J.] the question of trial strategy v. ineffective assistance concerned the mental status of the defendant and whether the attorney reasonably refused to seek his psychiatric records.

"After several requests to review the evidence and for a clarification on Miranda, the jury found defendant guilty of murder in the second degree. The court sentenced him to 25 years to life.

Defendant moved to vacate the conviction

"This is not simply a case of a failed trial strategy(see Baldi, 54 NY2d at 146 ["trial tactics which terminate unsuccessfully do not automatically indicate ineffectiveness"]). Rather, this is a case of a lawyer's failure to pursue the minimal investigation required under the circumstances. Given that the People's case rested almost entirely on defendant's inculpatory statements, trial counsel's ability to undermine the voluntariness of those statements was crucial. The strategy to present defendant's mental capacity and susceptibility to police interrogation could only be fully developed after counsel's investigation of the facts and law, which required review of records that would reveal and explain defendant's mental illness history, and defendant's diagnosis supporting his receipt of federal SSI benefits."
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