Wednesday, July 31, 2013

Wyeth Settles Off-Label Marketing Claims for $490.9 Million

Wyeth Settles Off-Label Marketing Claims for $490.9 Million:
by Matthew Huisman - National Law Journal
A Pfizer Inc. subsidiary on Tuesday entered into a $490.9 million settlement with the U.S. Department of Justice to resolve civil and criminal allegations of off-label pharmaceutical marketing abuses.
The complaint alleged that Wyeth Pharmaceuticals Inc., acquired by Pfizer in 2009, illegally marketed its immunosuppressant drug Rapamune, which is intended to help kidney patients accept transplanted organs. From 1998 through 2009, Wyeth allegedly instructed sales representatives to promote the drug for unapproved uses to boost sales.

Read more:
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Tuesday, July 30, 2013

NJ Bar President: NJ courts under attack from both sides: Opinion |

Good op-ed piece by New Jersey State Bar Association President Ralph Lamparello, writing in the Star Ledger.  But the "both sides: stuff is pretty faint-hearted.  The Democrats have been admirably tough in blocking Governor Chris Christie's moves to put in place a court that will repudiate the New Jersey Supreme Court's progressive legacy, discussed in my essay People's Electric - Engaged Legal Education at Rutgers-Newark in the 1960's and 1970's . - GWC
'NJ courts under attack from both sides: Opinion |
By Ralph J. Lamparello
New Jersey residents beware. An arms race is on between the executive and legislative branches of New Jersey government to politicize the judicial branch and subordinate its co-equal status.
Despite the clear language in the New Jersey Constitution of 1947, and more than 237 years of unequivocal state history, we are confronted with an assault that threatens the viability of the courts.
Make no mistake. Continued attacks on the judiciary denigrate the separation of powers and the independence of the courts, resulting in a blatant attempt to instill mistrust in the court system, mislead the public, influence the judicial process and ultimately subvert the judicial branch.
We have reached a dangerous tipping point where, as state Supreme Court Justice Barry T. Albin so eloquently put it when he recently addressed attendees of the New Jersey State Bar Association’s Annual Meeting, judges must today be concerned that “doing justice is a bad career move.”
Consider the evidence......

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Monday, July 29, 2013

Courting Justice - 10 NJ Cases that Shook the Nation // Book review |

The impact of the New Jersey Supreme Court is often remarked upon, but rarely systematically surveyed and assessed.  Its success is attributable to the judiciary's freedom from electoral demands, and from the sixty year consensus that grants of tenure after the seven year term should be made routinely on good behaviour.  Jonathan Lazarus, reviewing, observes 
"However, all the carefully crafted bipartisanship of the past came crashing down with the current governor and Legislature. The implosion occurred when Gov. Chris Christie refused to reappoint the only black member of the court, asserting he wanted to change “liberal” and “activist” tropes of the justices. The Legislature retaliated by derailing all of his nominees, save one. Happily, this sideshow is not the focus of “Courting Justice.” The book keys on the court as it does due diligence clarifying (critics might say muddying) the law, and the substantial impact exerted by its rulings in New Jersey and beyond."
I relate a part of the story in People's Electric : Engaged Legal Education at Rutgers Newark Law School in the 1960's and 1970's.  Paul Tractenberg looks at the Court and analyzes and explores the court's impact in narrative commentary by astute observers and participants.  Courting Justice is essential reading for many reasons - and particularly important for its illumination of that too little recognized source of creative legal thinking - state constitutional law. With notable modesty Tractenberg leaves that concluding chapter to Seton Hall's John Wefing who contributes "New Jersey's 1947 Constitution and the Creation of a Modern State Supreme Court".  - GWC

N.J.'s top court the subject of supreme scrutiny: Book review |
Courting Justice: 10 New Jersey Cases That Shook the Nation
Edited by Paul L. Tractenberg
Rutgers University Press, 288 pp., $27.95
Reviewed by Jonathan E. Lazarus:
...The 10, in chronological order: Henningsen vs. Bloomfield Motors (1960), allowing consumers to sue over defective products; Marini vs. Ireland (1970), granting tenants eviction shields; Southern Burlington County NAACP vs. Township of Mount Laurel (1975), a mandate for affordable housing that continues to vex the body politic; In Re Karen Ann Quinlan (1976), establishing guidelines to allow a patient to die with dignity; and Right to Choose vs. Byrne (1982), permitting abortion funding for the poor.
Also, State vs. Hunt (1982), a test of the new federalism allowing state courts more latitude; In the Matter of Baby M (1988), putting the surrogate child first in awarding custody; Lehmann vs. Toys ‘R’ Us (1990), expanding protection against sexual harassment; Doe vs. Poritz and Megan’s Law (1975), allowing community notification of sex offenders, since modified by constitutional amendment to permit internet postings; and Robinson vs. Cahill/Abbott vs. Burke, cases dating to the 1970s that persist today through Abbott XXI. The rulings posit the right to a thorough and efficient education, but the funding formulas have been the rub... 

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Pope on homosexuals: 'Who am I to judge?' | National Catholic Reporter

Pope on homosexuals: 'Who am I to judge?' | National Catholic Reporter: by John L. Allen  Aboard the Papal Plane  VIDEO HERE
"When I meet a gay person, I have to distinguish between their being gay and being part of a lobby. If they accept the Lord and have goodwill, who am I to judge them? They shouldn't be marginalized. The tendency [to homosexuality] is not the problem ... they're our brothers." - Pope Francis
One way to tell that a pope is feeling good at the end of a long trip is when he comes back to the press compartment and does precisely what he said at the beginning of the journey he won't, or can't, do.
On the way to Rio de Janeiro on July 22, Pope Francis told reporters, "I don't give interviews." But at the end of his seven-day tour de force in Brazil, not only did the pope give an interview, he gave a whopper of one.
He took questions from reporters traveling aboard the papal plane for a full hour and 21 minutes with no filters or limits and nothing off the record. Francis stood for the entire time, answering without notes and never refusing to take a question. The final query was an especially delicate one about charges of homosexual conduct against his recently appointed delegate to reform the Vatican bank, and not only did Francis answer, but he actually thanked reporters for the question.

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Friday, July 26, 2013

Tamanaha responds to Simkovic study on value of a J.D.

Total law office jobsBrian Tamanaha, author of Failing Law Schools, was an early voice warning of the crisis in legal education.  He has responded to the Simkovic/McIntyre study which projected the lifetime value of a J.D. as $1,000,000 over a B.A.  The discussion is discussed HERE by John Steele at Legal Ethics Forum.  Frank Pasquale (former Seton Hall colleague of McIntyre - now at Maryland) responds that Tamanaha's `this time is different' critique fails. 

Thursday, July 25, 2013

Norman Ornstein Excoriates GOP Leaders For Attemping To 'Sabotage' Obamacare | TPM LiveWire

Norm Ornstein Excoriates GOP Leaders For Attemping To 'Sabotage' Obamacare | TPM LiveWire:
"Norman Ornstein, a congressional expert and scholar at the conserative American Enterprise Institute, criticized GOP leaders' efforts to "sabotage" Obamacare as "sharply beneath any reasonable standards of elected officials." In a National Journal colum titled, "The Unprecedented—and Contemptible—Attempts to Sabotage Obamacare," Ornstein said the GOP anti-Obamacare effort is "spinning out of control" and "simply unprecedented."...
But to do everything possible to undercut and destroy its implementation—which in this case means finding ways to deny coverage to many who lack any health insurance; to keep millions who might be able to get better and cheaper coverage in the dark about their new options; to create disruption for the health providers who are trying to implement the law, including insurers, hospitals, and physicians; to threaten the even greater disruption via a government shutdown or breach of the debt limit in order to blackmail the president into abandoning the law; and to hope to benefit politically from all the resulting turmoil—is simply unacceptable, even contemptible. One might expect this kind of behavior from a few grenade-throwing firebrands. That the effort is spearheaded by the Republican leaders of the House and Senate—even if Speaker John Boehner is motivated by fear of his caucus, and McConnell and Cornyn by fear of Kentucky and Texas Republican activists—takes one's breath away."

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U. Hawaii names Eric Yamammoto as The Fred T. Korematsu Chair In Law And Social Justice At The William S. Richardson School Of Law | UH Foundation

Eric K. Yamammoto,
named to newly established chair
The Fred T. Korematsu Chair In Law And Social Justice At The William S. Richardson School Of Law | UH Foundation: "Fred T. Korematsu dedicated his adult life to social justice and was a lifelong advocate for government accountability. He stood tall against fierce discrimination and challenged the U.S.'s World War II mass incarceration of Japanese Americans, helping spark U.S. redress for former internees and setting a global precedent for repairing the persisting damage of historic injustice. Linking Korematsu to the Chair in Law and Social Justice broadens and extends his remarkable legacy. It promises that his courage, insight and persistence will be carried into the future by the selected professor through her or his scholarly speaking and writing, teaching and inspiring students and service to communities struggling for justice locally, nationally and internationally."

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Saturday, July 20, 2013

A Free Man - George Zimmerman

I submitted this essay for publication as an editorial on  July 18, a day before President Obama's powerful and personal remarks about the killing of Travon Martin.  It has been taken over by events - the President's powerful recounting of his own experience changes the terrain, hopefully directing our national discussion. So I am posting it now in original form.  - GWC

A Free Man

Last year we called for a fair trial for George Zimmerman and warned that the prosecutor had failed to present the matter to a grand jury and seemed to lack the evidence for the second degree murder charge lodged in the shooting death of Trayvon Martin, a seventeen year-old black youth walking home. 
Zimmerman declared himself  the armed guardian of a gated community.  Despite being warned off by the police he stalked a boy carrying only a cell phone who was walking to his father’s house, got in a fight, and then shot Martin dead.  Thanks to effective defense and the law of Florida Zimmerman goes without punishment for the confrontation he plainly provoked in his quest to stop “punks” and “a**holes” who “always get away”.  Our  principal reaction to the verdict in the George Zimmerman case is sadness.

The result shocks and depresses many who, like Attorney General Eric Holder, Times Columnist Chalres Blow, and Cardozo law professor Ekow Yankah see in the verdict an old sad story: that a widespread popular presumption of black male criminality threatens every black man.  But the acquittal also directs our attention to the law relied by the six women on the jury - none of whom was black.  The defense asserted that Zimmerman had the right to be armed, and to follow Martin, suspicious of the hooded youth who was talking on his cell phone  and looking about as he walked home in the dark.  A fight ensued and Zimmerman claimed Martin was getting the better of him.  Self defense was the claim.  In this Zimmerman was aided by the Flroida jury instruction read to the jury:

If George Zimmerman was not engaged in an unlawful activity and was attacked in any place where he had a right to be, he had no duty to retreat and had the right to stand his ground and meet force with force, including deadly force if he reasonably believed that it was necessary to do so to prevent death or great bodily  harm to himself or another or to prevent  the commission of a forcible felony.
In considering the issue of self-defense, you may take into account the relative physical abilities and capacities of George Zimmerman and Trayvon Martin.  If in your consideration of the issue of self-defense you have a reasonable doubt on the  question of whether George Zimmerman was justified in the use of deadly force, you should find George Zimmerman not guilty.

Thus the jury learned that if it thought that Zimmerman might have been defending himself it was obligated to acquit - as it did.  Absent from the Flrida instruction is the principle with which a New Jersey jury would be instructed 
Even if you find that the use of deadly force was reasonable, there are limitations on the use of deadly force. If you find that the defendant, with the purpose of causing death or serious bodily harm to another person, provoked or incited the use of force against himself/herself in the same encounter, then the defense is not available to him/her.

The undisputed evidence that Zimmerman identified Martin as a “punk”, etc. of the type that “always get away” might have led the six women on the Zimmerman jury to conclude that his use of force was not justified.  That where he had provoked such a confrontation he had a duty to retreat, that his right to use force was limited in those circumstances.  We therefore endorse the call of Attorney General Eric Holder who said at his talk at the NAACP national convention which followed shortly on the heels of the Zimmerman acquittal that:

[I]t’s time to question laws that senselessly expand the concept of self-defense and sow dangerous conflict in our neighborhoods.  These laws try to fix something that was never broken.  There has always been a legal defense for using deadly force if – and the “if” is important – no safe retreat is available. But we must examine laws that take this further by eliminating the common sense and age-old requirement that people who feel threatened have a duty to retreat, outside their home, if they can do so safely.

- George Conk

July 18, 2013

Lawyers want NH prosecutors off death row case - News Local New Hampshire -

Lawyers want NH prosecutors off death row case -
by Lynn Tuohy  - Associated Press

CONCORD, N.H. (AP) — Lawyers for New Hampshire’s only death row convict want the entire Attorney General’s office disqualified from handling his appeal after the office hired a key member of Michael Addison’s defense team.
Defense attorneys argued in a New Hampshire Supreme Court filing this week that former public defender Lisa Wolford, who worked full time on Addison’s case in 2009, took at least one confidential document with her when she joined the Attorney General’s office last summer as an appellate lawyer. The attorneys said she uploaded the document to her computer at the Attorney General’s office.
‘‘In poker terms, she not only knows the defense team’s hand but how the defense intends to play it,’’ wrote Attorney Andrew Schulman. ‘‘In football terms, she has her old team’s playbook.’’
Deputy Attorney General Ann Rice on Friday would not comment on the court filing, saying her office will respond in court.
Addison was convicted of fatally shooting Manchester Police Officer Michael Briggs in October 2006 as he attempted to arrest him for a string of violent felonies. He was sentenced to death in 2008. The justices of the Supreme Court heard arguments in his case last November and are expected to rule later this year.
Addison’s lawyers also say Wolford for two months had access to the Attorney General’s computer files on the Addison case and was not barred from speaking with other prosecutors working on the case.
According to the court filing, former Attorney General Michael Delany, in response to questions posed by independent counsel hired by the defense team, said that the office has no procedures or written policies concerning screening lawyers for conflicts of interest.
Attorney George Conk, senior fellow of the Stein Center for Law and Ethics at Fordham University and an adviser on ethics to the New Jersey Supreme Court, said it was a tough call but he would disqualify the Attorney General’s office and order that private counsel be retained to insure the integrity of the appellate process.
‘‘The legal presumption is that all her loyalty now rests with her current employer, and she will use all the information she has in order to aid their cause,’’ Conk said.
Conk said Wolford’s new role could influence potential challenges by Addison years from now on whether he received effective assistance of counsel.
Mike Ramsdell, a defense lawyer who worked for the Attorney General’s office for 10 years, said he doesn’t think Wolford switching sides may be that big a deal.
Ramsdell said there should be policies in place to bar a new hire from working on any cases he or she previously worked on in another capacity. But he said the Supreme Court is reviewing what happened at the trial court level, based on transcripts and pleadings.
Deputy Chief Public Defender David Rothstein, lead counsel for Addison, declined to comment on the court filing.
New Hampshire’s last execution was in 1939.
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Trayvon Martin could have been me, thirty five years ago' // Remarks of President Obama, July 19, 2013

Andrew Sprung has analyzed with his usual perspicacity, the rhetoric of President Obama in his remarks yesterday on the death of Trayvon Martin, and the acquittal of George Zimmerman.  The President - whom we have been wise enough to elect - twice - helps us make progress in our slow climb up from our birth as a society half-slave and half-free.  As the song says, `none of us is free if one of us is in chains'.  Today Barack Obama spoke of "we" in the African American community, a rare and important stance for the President to take.  - GWC

Thursday, July 18, 2013

Remembering the anti-anti--apartheid campaign

Hypocrites laud heroes once the fighting is over
The Republican Party's descent to Hades began with the southern strategy - the idea that the "sun belt" and its white voters would bring  it a new, stable. conservative majority.  
Sam Kleiner in Foreign Policy reminds us that the conventional wisdom among Republicans was the paternalistic view that divestment and boycott campaigns were "elite" PC snobbbery, and that ordinary (black) South African citizens would be hurt by anti-apartheid sanctions.  Speaker John Boehner's pose on Nelson Mandela's 95th birthday is typical of the politically necessary  celebration today of what was resisted or ignored yesterday (when Mandela was shunned for his Communist ties).    Kleiner explains:
On Nelson Mandela's 95th birthday, the world is celebrating the former South African president and cheering for his recovery. The U.S. Congress even managed a rare display of bipartisanship for the occasion, with members of both parties taking turns to laud Mandela as they stood in front of the Statue of Freedom in Emancipation Hall. "At times it can almost feel like we are talking about an old friend," said Rep. John Boehner (R-OH.) "He never lost faith in the strength of the human spirit," added Rep. Nancy Pelosi (D-CA).Today, Nelson Mandela is a celebrated elder statesman that both Democrats and Republicans heap praise on.
This wasn't always the case. When Mandela was imprisoned and struggling to end apartheid, the Republican Party -- through the policies of the Reagan administration and the work of party activists -- opposed U.S. sanctions against the white supremacist regime. Though they didn't support apartheid by any means, they turned a blind eye towards the cruelty of the system and failed to support Mandela in his time of greatest need. Today, Republicans will cheer on Mandela, but the Republican Party's historical relationship with South Africa, and Mandela in particular, exposes a sad chapter in the history of the American right.

The value of a law degree

NY Times, WaPo debate the value of a law degree.  For analysis and discussion see Tax Prof Blog - Paul Caron
It is true that the Simkovic-McIntire study is pre-recession and some things may have changed permanently - but how much and for how long?  This chart looks about right for lawyers of my generation - typically self-employed in small units of five or less. - GWC
Lifecycle lawschool

Has the G.O.P. Gone Off the Deep End? -

Has the G.O.P. Gone Off the Deep End? -
by Thomas Edsall

Thomas Doherty, patronage czar and political enforcer for the former New York governor George Pataki, reached the breaking point last week when he read that House Republicans were preparing to “slow walk” the Senate immigration bill to death.

Doherty turned to Twitter:
If Senate Immigration bill gets ripped apart and ultimately defeated by House #GOP I’ve decided to leave my political home of 32 yrs #sad.
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Debating, Yet Again, the Worth of Law School -

Debating, Yet Again, the Worth of Law School -
by Steven Davidoff, Ohio State
"In the debate over whether law schools are worth what they cost students, sober analysis often seems to give way to angry rhetoric.
The heated response to the recently released paper titled “The Economic Value of a Law Degree,” which found that a law degree on average had $1 million in value, thus was no surprise. The indomitable Elie Mystal at the Above the Law blog, called the study “garbage,” stating that it was an “advertising piece for law schools still hoping that they can trick prospective law students into making bad choices.”
What does this study do that it can inspire such anger? The paper looks at what a law school graduate can expect to earn from a law degree. The authors, Michael Simkovic, a law professor, and Frank McIntyre, a labor economist, find that the “mean annual earnings premium of a law degree is approximately $53,300” a year, and that the average pretax value of a law degree over a lifetime was $1 million. In other words, the average law school graduate can expect to earn about one million dollars more than if they had not gone to law school."

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Zimmerman Prosecutor Angela Corey Under Fire For Alleged Professional Breaches | JONATHAN TURLEY

I have criticized Zimmerman Special Prosecutor Angela Corey before - here, here, and here.  John Steele at Legal Ethics Forum has detailed many of her missteps here. If there is a pot hole to stumble into she seems destined to find it.  If not, she'll dig a new one. - GWC

Zimmerman Prosecutor Angela Corey Under Fire For Alleged Professional Breaches | JONATHAN TURLEY:
Corey herself is facing allegations of unethical and unprofessional conduct. Prosecutors are supposed to be highly circumspect in their public comments. They are not supposed to attack acquitted defendants. Most refuse to do so and leave such matters to the public debate rather than join the public outcry. Corey surprised many by going on television and calling Zimmerman a “murderer” after his acquittal. Her trial counsel was slightly more circumspect and called him “lucky.” She also referred to Martin as Zimmerman’s “prey.” Clearly there are many who share these views, but it is a different matter when spoken by a prosecutor following an acquittal.
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Wednesday, July 17, 2013

The FDA and Graphic Cigarette-Pack Warnings — Thwarted by the Courts — NEJM

Appalling.  But I would be afraid of the Supreme Court too.  Money is speech they said in Citizens United.  And we know that money talks. - GWC

The FDA and Graphic Cigarette-Pack Warnings — Thwarted by the Courts — NEJM:
Ronald Bayer, Ph.D., David Johns, B.A., and James Colgrove, Ph.D.
N Engl J Med 2013; 369:206-208July 18, 2013
"On August 24, 2012, in R.J. Reynolds Tobacco Company v. Food and Drug Administration, the U.S. Court of Appeals for the District of Columbia ruled that the regulations proposed by the Food and Drug Administration (FDA) mandating the inclusion of graphic warnings on cigarette packs (see photo Graphic Warning Label. ) violated the First Amendment: they would compel companies to express antitobacco messages on their own dime. Seven months later, on March 14, 2013, the Department of Justice announced that the government would not appeal that decision to the Supreme Court." 'via Blog this'

The Million Dollar Law Degree by Michael Simkovic, Frank McIntyre :: SSRN

The Million Dollar Law Degree, Powerpoint Presentation by Michael Simkovic, Frank McIntyre :: SSRN:
Download Powerpoint HERE
We improve upon previous studies by tracking lifetime earnings of a large sample of law degree holders. Previous studies focused on starting salaries, generic professional degree holders, or the subset of law degree holders who practice law. We also include unemployment and disability risk rather than assume continuous full time employment.
After controlling for observable ability sorting, we find that a law degree is associated with a 60 percent median increase in monthly earnings and 50 percent increase in median hourly wages. The mean annual earnings premium of a law degree is approximately $53,300 in 2012 dollars. The law degree earnings premium is cyclical and recent years are within historic norms.
We estimate the mean pre-tax lifetime value of a law degree as approximately $1,000,000.

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Holder - reexamine stand your ground laws

The United States Department of JusticeAttorney General Eric Holder, speaking to the NAACP after the George Zimmerman  acquittal, has called for reexamination of expanded self-defense laws typified by the Florida stand your ground law:

Separate and apart from the case that has drawn the nation’s attention, it’s time to question laws that senselessly expand the concept of self-defense and sow dangerous conflict in our neighborhoods.  These laws try to fix something that was never broken.  There has always been a legal defense for using deadly force if – and the “if” is important – no safe retreat is available. But we must examine laws that take this further by eliminating the common sense and age-old requirement that people who feel threatened have a duty to retreat, outside their home, if they can do so safely.  By allowing and perhaps encouraging violent situations to escalate in public, such laws undermine public safety.  The list of resulting tragedies is long and – unfortunately – has victimized too many who are innocent. It is our collective obligation – we must stand our ground – to ensure that our laws reduce violence, and take a hard look at laws that contribute to more violence than they prevent. 

The Monkey Cage - an excellent political science blog, reports:

At least two empirical papers have found that Stand Your Ground (SYG) laws like the one in Florida are associated with an average increase rather than a decrease in firearm homicides. This plausibly occurs because the deterrent effects of such laws are outweighed by the increase in the range of legal defenses for the use of lethal violence that become available to attackers. WhileSYG laws are meant to protect defenders, the absence of impartial witnesses makes it difficult in many cases to determine who ought to have had a “reasonable fear” of whom.

Law Firms - Red & Blue - Top 25 NLJ 100 firms

h/t Tax Prof Blog - the top 25 in the NLJ 100

Tuesday, July 16, 2013

Supreme Court marks 70th anniversary of Japanese Internment by Gutting Voting Rights Act

In its deplorable vitiation of the Voting Rights Act, Shelby County v. Holder, the Supreme Court was doubtless unaware of the irony that its abandonment of the Fifteenth Amendment's promise could have been a day of celebration, of renunciation of its own failures.  
Peter H. Irons, UC San Diego political science professor emeritus, and crusading lawyer, offered the United States Supreme Court the opportunity to follow Lincoln's emancipation proclamation example:   Renounce on its 70th anniversary your June 21, 1943 decision in Hirabayashi v. United States.  The Court upheld the criminal conviction of Gordon Hirabayashi "for disobeying military curfew orders that preceded and were followed by the forced removal from the West Coast and subsequent imprisonment of some 110,000 Americans of Japanese ancestry, two-thirds of them native-born citizens" said Irons in his recent essay "Unfinished Business: the Case for Supreme Court Repudiation of the Japanese American Internment Cases.  The court upheld the internment eighteen months later in Korematsu v. United States".

Gordon Hirabyashi, Minoru Yasui, Fred Korematsu
In 1982, Professor Irons initiated and served as counsel to Fred Korematsu and Gordon Hirabayashi in their coram nobis actions to vacate their wartime internment convictions. The next year he published Justice at War: the Story of the Japanese American Internment Cases.  He has not given up.  In a series of efforts Irons has documented his case:
The evidence of the government’s misconduct in these cases is clear and compelling, and rests on the government’s own records. It reveals that high government officials, including the Solicitor General, knowingly presented the Supreme Court with false and fabricated records, both in briefs and oral arguments, that misled the Court and resulted in decisions that deprived the petitioners in these cases of their rights to fair hearings of their challenges to military orders that were based, not on legitimate fears that they—and all Japanese Americans—posed a danger of espionage and sabotage on the West Coast, but rather reflected the racism of the general who promulgated the orders. As a result of the government’s misconduct in these cases, the integrity of the Supreme Court was compromised. With a full record of the government’s misconduct in these cases now before it, the Supreme Court has both the inherent power and duty to correct its tainted records through a public repudiation of the wartime decisions.
Irons' stubborn campaign will, I hope someday bear fruit.  We should remember today - in the shadow of the George Zimmerman acquittal - the prophetic words of dissent by former Michigan Governor, Associate Justice of the Supreme Court Frank Murphy:
“[T]his forced exclusion was the result in good measure of [an] erroneous assumption of racial guilt, rather than bona fide military necessity. A military judgment based upon such racial and sociological considerations is not entitled to the great weight ordinarily given the judgments based upon strictly military considerations. . . . I dissent, therefore, from this legalization of racism.”
Justice Frank Murphy, 323 U.S. at 235-242 (1944)

Christie and the New Jersey Supreme Court - When Worlds Collide - NJ Spotlight

The governor's frequent attacks on Court rulings could alienate public trust

By Carl Golden 
The nation’s political landscape is littered with the remnants of clashes between chief executives -- joined on occasion by the legislative branch -- and the judiciary. The history is long and rich, epitomizing the tensions inherent…

A White Perspective on the Zimmerman Verdict: Is American Justice Inevitably Unequal? | Professional Responsibility: A Contemporary Approach

Fordham law prof Russell Pearce details the sublimated appeals to race in the defense strategy of George Zimmerman's lawyers. - GWC
A White Perspective on the Zimmerman Verdict: Is American Justice Inevitably Unequal? | Professional Responsibility: A Contemporary Approach:
by Russell Pearce
A few years ago, I wrote an article arguing that so long as lawyers and judges refused to acknowledge that people are not color blind, our legal system would inevitably treat Blacks unequally. See White Lawyering: Rethinking Race, Lawyer Identity, and Rule of LawThe Zimmerman verdict is yet another tragic illustration of how the pretension of color blindness inevitably results in racial injustice. The examples in the Zimmerman trial are manifold. The Court permitted the defense to introduce evidence that a neighbor had been robbed by a Black man – to what purpose? To suggest that if one Black man was a criminal all were and therefore George Zimmerman was reasonable in profiling Trayvon Martin. The defense lawyers constantly used tropes that assumed racial bias. They argued, for example, that George Zimmerman was physically weak and a bad fighter in contrast to what? Without any evidence regarding Trayvon Martin, they implied that he was a good fighter and to be feared because he was Black. This is a sad day for all of us, not just for Trayvon Martin’s family and for the State of Florida. It’s a powerful reminder that all of us who are part of the legal system, including Whites like myself, have a responsibility to redouble our efforts to promote equal justice under law. For an enlightening take on how the Zimmerman trial forces us to rethink discrimination laws, watch Maya Wiley’s comments on Up with Steve Kornacki.

The Truth About Trayvon -

Ekow Yankah,  a Cardozo Law School prof, develops the argument in an op-ed in today's Times.
The Truth About Trayvon -
by Ekow Yankah
 "THE Trayvon Martin verdict is frustrating, fracturing, angering and predictable. More than anything, for many of us, it is exhausting. Exhausting because nothing could bring back our lost child, exhausting because the verdict, which should have felt shocking, arrived with the inevitability that black Americans know too well when criminal law announces that they are worth less than other Americans."...

Every step Mr. Martin took toward the end of his too-short life was defined by his race. I do not have to believe that Mr. Zimmerman is a hate-filled racist to recognize that he would probably not even have noticed Mr. Martin if he had been a casually dressed white teenager.

But because Mr. Martin was one of those “punks” who “always get away,” as Mr. Zimmerman characterized him in a call to the police, Mr. Zimmerman felt he was justified in following him. After all, a young black man matched the criminal descriptions, not just in local police reports, but in those most firmly lodged in Mr. Zimmerman’s imagination....

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Monday, July 15, 2013

Gov. Christie poised to reject tenure for Chief Justice

The standoff between the Democratic state Senate and Chris Christie, the often combative Governor of New Jersey, has taken on a new intensity.  The state's Supreme Court, in an opinion by the un-tenured Chief Justice, Stuart Rabner, declared 5-2 that the Governor could not by executive order abolish the legislatively created Council on Affordable Housing.  COAH is an independent agency which enforces the Court's landmark Mt. Laurel principles - mandating that developing  towns make provision for affordable housing.

Christie has found little support in the bar - but that has not deterred him from his oft-declared intention to remake New Jersey's courts whose long progressive record has often infuriated conservatives.  Christie, like many suburban Republicans, resents the open housing mandate which overrides local zoning restrictions.   Shortly after taking office in 2009 Christie broke the sixty year old consensus that all sitting judges will be granted tenure after their seven year initial term, unless their behaviour is problematic in some way.  Introducing ideology as a factor in reappointment produced an uproar in the bar, and the Democrat-dominated Legislature.  
Only one of Christie's five Supreme Court nominees has been confirmed.  Two were rejected and two are in limbo as the Democrats say they will hold hearings only after the November elections.  The June expiration of the term of the Chief Justice will then be on the agenda.  In over sixty years no sitting Chief Justice has been denied tenure.  So it is an ominous sign that in their weekly dialog former Governor Thomas Kean, a moderate Republican, has lambasted the court's decision as "radical", while Democratic former Governor Brendan Byrne finds the court's decision an affirmation of current law.

Among the Governor's most persistent critics is the Editorial Board of the New Jersey Law Journal.  They declared in this week's edition:
In a majority opinion authored by Chief Justice Stuart Rabner, the New Jersey Supreme Court held 5-2 that the governor lacked authority under the Reorganization Act to abolish the Council on Affordable Housing. The issue was one of statutory construction, with the majority finding that independent agencies such as COAH, created "in but not of" a principal department of the executive branch, may not be abolished under the Reorganization Act as it is currently constituted.
But the real news here is Gov. Chris Christie's continuing war on judicial independence, and his determination to replace judges who render decisions he disagrees with. In reaction to the COAH decision, the governor stated: "The chief justice's activist opinion arrogantly bolsters another of the failures he and his colleagues have foisted on New Jersey taxpayers. This only steels my determination to continue to fight to bring common sense back to New Jersey's judiciary."
Since the chief justice lacks tenure, and his term expires next year, this statement can only be viewed as a not so thinly veiled threat that he will not be reappointed. Before this administration, such a statement would have been considered shocking. No more.
This regrettable state of affairs is a new low for judicial independence in New Jersey.

The Ford Foundation: bete-noire of the `libertarian' right

Walter Olson, creator of the blog, recites concisely the purported evils of the progressive vision of law.   In alarmist rhetoric the Cato Institute Senior Fellow sees not UN commandos in black helicopters but shameless check writers at philanthropies.  Today's target: The Ford Foundation.  Aided by a stock photo of Bernadine Dohrn with her FBI wanted poster, he accuses Ford of "shaping America by re-making her law schools".
For over half a century, the Ford Foundation has quietly worked to turn the nation’s law schools into agents of Sixties-style “social change.” Other donors like Carnegie, Soros, and MacArthur have followed Ford’s path, and the result can be seen in landmark Supreme Court decisions, the plethora of politicized “legal clinics” on campus, and the courts’ growing willingness to defer to “international law.
I recently celebrated what Olson deplores in my recent article `People's Electric: Engaged Legal Education at Rutgers-Newark Law School in the 1960's and 1970's'.  To Cato and Olson it is just an example of what he has labeled in a book-length tract "Schools for Misrule: Legal Academia".  I'm disappointed that he gives so much credit to the Ford Foundation, and so little credit to the energy and insights of the faculty at Rutgers-Newark, where it all really began.
'via Blog this'

Saturday, July 13, 2013

Perils of overcharging: Zimmerman Is Acquitted of Murder and Manslaughter Charges -

Trayvon Martin

The Zimmerman acquittal is a shame - because the unnecessary death of Trayvon Martin goes unpunished.  He was hunted down by an armed man who had been told by the police to stop following the man.  Zimmerman sought the confrontation and, as the armed man, won.  Aided by the presumption of criminality of young black men, and by competent defense lawyers, we got another racist verdict by a southern, white jury. As one commenter on the Times site said - what about Trayvon Martin's right to stand his ground? to defend himself?  George Zimmerman suspected Martin for no good reason, went armed, tracking down Martin, found himself in a confrontation in which Martin was clearly defending himself against a lethal threat.  And the jury acquits.  Appalling.

Also appalling is the conduct of the prosecutor - who had no evidence of Second Degree murder. [See R.P.C. 3.8 The prosecutor in a criminal case shall: (a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause]  The case should  have been tried as a manslaughter case.  From the moment the indictment was released it was plain that they did not have the evidence for second degree murder - as many observed.
Instead the Prosecutor resorted to the improper - appearing at a press conference with a cross dangling from her neck babbling about praying with the Martin family and speaking of the "constitutional victim".  If they really wanted to overcome the presumption of criminality of the hoodie-wearing black teenage male they should have focused on the facts.  That would have led them to a manslaughter case.  Overcharging is like any other credibility issue.  Every basic trial practice course tells you not to offer to prove what you cannot prove.  The prosecutors of George Zimmerman neglected that basic rule.  - GWC
Zimmerman Is Acquitted of Murder and Manslaughter Charges - "SANFORD, Fla. — George Zimmerman, the neighborhood watch volunteer who fatally shot Trayvon Martin, an unarmed black teenager, igniting a national debate on racial profiling and civil rights, was found not guilty late Saturday night of second-degree murder. He also was acquitted of manslaughter, a lesser charge."
The jury instruction is HERE.  Compare New Jersey model jury instruction on self-defense.  In New Jersey the burden of proceeding on self defense is on the proponent - the defendant.  The ultimate burden to prove the killing unjustified remains with the State.

The Florida charge is notable for its subjectivity - the question is what the defendant believed "at the time force was used".  If Zimmerman "believed" he was in danger of seriosu bodily harm - he had the right to use deadly force even if he was the aggressor!  Thus juror B37 (wife of a lawyer) explained that Zimmerman was acting in self defense.

In New Jersey the Zimmerman defense's task would have been much more formidable because juries are instructed:
Even if you find that the use of deadly force was reasonable, there are limitations on the use of deadly force. If you find that the defendant, with the purpose of causing death or serious bodily harm to another person, provoked or incited the use of force against himself/herself in the same encounter, then the defense is not available to him/her.

Under Florida's stand your ground law there is no duty to retreat.  By this reasoning Trayvon Martin was justified in attacking with fatal intent the armed man who was stalking Martin.  Each was justified in killing the other.  Congratulations to ALEC whose lobbying and law-drafting helped created such a circumstance.  They are the only winners.

Is there a next step? Federal Civil Rights prosecution under the hate crimes act?  It will not be easy.  The statute, 18 U.S.C. 249,  provides:
a) In General.—(1) Offenses involving actual or perceived race, color, religion, or national origin.— Whoever, whether or not acting under color of law, willfully causes bodily injury to any person or, through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, attempts to cause bodily injury to any person, because of the actual or perceived race, color, religion, or national origin of any person...

'via Blog this'

Friday, July 12, 2013

On the `nuclear option'

Alexander Hamilton - ten dollar bill
“All provisions which require more than a majority of any body to its resolutions have a direct tendency to embarrass the operations of the government and an indirect one to subject the sense of the majority to that of the minority.”
“The history of every political establishment in which this principle has prevailed is a history of impotence, perplexity and disorder.”
-Alexander Hamilton, Federalist No. 75
See Emmet J. Bondurant, The Senate Filibuster: the Politics of Obstruction, Harvard Journal of Legislation 
Between 1840 and 1900, there were 16 filibusters. Between 2009 and 2010, there were more than 130. But that's changed. Today, Majority Leader Harry Reid says that "60 votes are required for just about everything."
At the core of [the Harvard Journal] argument is a very simple claim: This isn't what the Founders intended. The historical record is clear on that fact. The framers debated requiring a supermajority in Congress to pass anything. But they rejected that idea.
Mitch McConnell - not worth a nickel
h/t James Fallows