Monday, September 30, 2013

A Historic Fair Housing Decision Reaffirmed -

Governor Christie wants to get rid of the affordable housing obligations in the suburbs.  
The decision is In Re Council on Affordable Housing, September 27, 2013.  Over the dissent of Helen Hoens and Anne Paterson the court rejected the regulations which enabled each town to set its own limits on affordable housing, rather than  use a regional norm. - GWC
A Historic Fair Housing Decision Reaffirmed -

by the New York Times Editorial Board
"The New Jersey Supreme Court has wisely rejected an attempt by Gov. Chris Christie to undermine its 30-year-old-ruling in the Mount Laurel fair housing case, one of the more important civil rights decisions of the modern era. In last week’s strongly worded decision, the court made clear that it would be keeping a close eye on both the Christie administration and wealthy communities that might be inclined to flout the law, which limits the use of exclusionary zoning as a means of preventing the construction of affordable housing."***
The central issue in last week’s ruling was Mr. Christie’s effort to interpret the “fair share” mandate in a way that would essentially allow communities to decide for themselves how much affordable housing should be built. This, in turn, would give hostile communities license to block affordable housing.
Confronted with this threat, the court asserted that it had a clear duty to enforce the rights of low-income citizens under the State Constitution. In so doing, it served notice that it would brook no more foot-dragging on the part of the state."

'via Blog this'

The House GOP’s Legislative Strike -- Daily Intelligencer

The House GOP’s Legislative Strike -- Daily Intelligencer:
by Jonathan Chait /New York Magazine
The first element of the strategy is a kind of legislative strike. Initially, House Republicans decided to boycott all direct negotiations with President Obama, and then subsequently extended that boycott to negotiations with the Democratic Senate. (Senate Democrats have spent months pleading with House Republicans to negotiate with them, to no avail.) This kind of refusal to even enter negotiations is highly unusual. The way to make sense of it is that Republicans have planned since January to force Obama to accede to large chunks of the Republican agenda, without Republicans having to offer any policy concessions of their own.

'via Blog this'

No right to affordable health care: what it's all about

Senate Majority Leader Harry Reid carries this with him, to help him keep his focus:
View image on Twitter

Sunday, September 29, 2013

The GOP is drunk on the proven power of extortion | xpostfactoid

I will not negotiate over Congress’s responsibility to pay the bills that have already been racked up. Voting for the Treasury to pay America’s bills is not a concession to me. That’s not doing me a favor. That’s simply carrying out the solemn responsibilities that come with holding office up there. I don’t know how I can be more clear about this. Nobody gets to threaten the full faith and credit of the United States just to extract political concessions. No one gets to hurt our economy and millions of innocent people just because there are a couple of laws that you do not like.
- President Barack Obama - Friday, September 27, 2013
The GOP is drunk on the proven power of extortion | xpostfactoid:
by Andrew Sprung
I think it might be salutary if Obama himself acknowledged that [his prior negotiating with Republicans over the debt limit] has played a role [in enabling the current GOP ransom note strategy].  [He could say] something like the Prince in Romeo and Juliet: "And I for winking at your discords too/Have lost a brace of kinsmen; all are punish'd." A mea culpa for negotiating under threat of debt default would give him the opportunity to walk back another error of the summer of 2011: renouncing the 14th Amendment option - that is, invoking the 14th Amendment to issue new debt without Congressional authorization, under authority of the Amendment's assertion that ""The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned." Bill Clinton has said, and last week reiterated, that he would do so; [Minority Leader Nancy] Pelosi too recently chastised Obama for renouncing it.

It would be hard to be more invested in Obama's success as president than I am. I want to believe that he will ultimately prove to have been a good and possibly a great president. If the Affordable Care Act does bend the healthcare cost curve, or catalyzes further changes that bend it, that one landmark accomplishment may secure the country's fiscal future and win him massive credit with historians. But I do think that he has in various ways been too cautious, and too risk averse, too prone to splitting differences -- and catastrophically naive in the face of manifest Republican determination to sabotage his presidency, and the economy for which he is held responsible, at any cost. Now must take a heavy risk to redress past errors in his budget negotiations with Republicans. And he needs to amass and be willing to deploy every tool available to him if he is to prevail.
'via Blog this'

Why This Is Not Just 'Washington Breakdown,' in 3 Graphs (and 1 Story) - James Fallows - The Atlantic

Why This Is Not Just 'Washington Breakdown,' in 3 Graphs (and 1 Story) - James Fallows - The Atlantic:
In essence, the hard-line faction of the House GOP is demanding the following, as recent NYT, WSJ, andWaPo articles, apart from today's, have made clear: 
  • EITHER the Administration must undo the main legislative accomplishment of the president's time in office, which he passed despite filibuster resistance four years ago and which the Supreme Court has since held constitutional; 
  • OR ELSE all other business of the government will be halted, and the full faith and credit of the United States will be called into question, with unknown but likely bad world-financial consequences.
This is not what either John Boehner or Mitch McConnell says he stands for. I have no doubt that Obama could ultimately strike some compromise with even McConnell's filibuster-happy Senate Republicans and any kind of normal Republican majority in the House. In the end Democrats would complain that Obama had caved, Republicans would complain about Beltway insiderism, but some deal would result.
Yet enough of today's absolutist House members think in exactly these Either/Or terms that normal compromise is simply impossible. Compromise is nearly as much their stated enemy as is Obamacare. If you're urging a search for "common ground," please tell me where you see between these views. I argued recently that the closest parallels in our history were to the John C. Calhoun era before the Civil War. If you think that's unfair, please tell me another case in which a dissatisfied minority threatened to shut down the entire government, and possibly renege on the national debt, unless a sitting President agree to reverse his hardest-won policy accomplishment.
And, yes, a dissatisfied minority. This brings us to the part of the struggle that gets far less ink than it should.
'via Blog this'

Friday, September 27, 2013

The Father of the 14th Amendment -

John BinghamRepresentative John Bingham of Cadiz, Ohio, should be but is not revered as a Founder.  His name should be as familiar as James Madison as a source of understanding of the Constitution.  He was the drafter and architect of the 14th Amendment and its promise of equal protection of the laws.  Embrace of it was one of the the terms on which the defeated secessionist states could return representatives to the Congress.  But just as the post-civil war amendments were narrowed, distorted, and ignored, so was Bingham's contribution to refounding our nation on the principles of the Declaration of Independence and the  Bill of Rights.  He was - as Gerard Magliocca describes him in his fine new biography  - an American Founding Son.

The Father of the 14th Amendment -
by Gerard N. Magliocca

"In September 1863, the Ohio politician John Bingham was at the lowest point of his career. He had once been among the fastest-rising stars in American politics. Nine years earlier, he was among the first group of Republicans elected to the House of Representatives. Shortly after arriving in Washington, he established himself as one of the leading congressional voices against slavery. He was one of the new President Lincoln’s most steadfast supporters and a key member of the House’s pro-war caucus...."

'via Blog this'

New Jersey Judge Orders State to Permit Same Sex Marriage

Judge Mary Jacobson

In the wake of U.S. v. Windsor the federal government began moving to afford same sex spouses the federal benefits to which heterosexual couples are entitled.  But New Jersey same-sex couples could not marry - only enter "civil unions".  In 2006 the state Supreme Court had ordered the state to afford full equality to persons in civil unions. When post-Windsor federal agencies began to deny benefits to participants in civil unions   federal government's actions showed that civil unions could not provide full equality to New Jersey same sex couples.   The plaintiffs in Garden State Equality v. Attorney General Dow moved for summary judgment before Superior Court Judge Mary Jacobson.    Jacobson granted plaintiffs' motion and ordered that New Jersey, by October 21, "permit any and all same-sex couples, who otherwise satisfy the requirements to enter into a civil marriage, to marry in New Jersey."

Update 9/29/2013:
Governor Chris Christie quickly announced that the State will appeal.  The next step will be a motion for a stay pending appeal - which the trial judge will presumably decline, but the Appellate Division is likely to grant, and the Supreme Court almost certainly.  Plaintiffs will, I expect, ask the Supreme Court to directly certify the question and decide the issue promptly.  The Court may balk, saying that the factual record it said was needed is not yet before it.  But it is the undisputed facts that have been changed by the landmark ruling in U.S. v. Windsor.  That now frames the constitutional question precisely - since the United States recognizes marriage as the the qualifying event for federal benefits, New Jersey must inevitably derive some citizens of the benefits of equality unless it permits them to marry. 

 A big question is who will be the members of the New Jersey Supreme Court when the case is reached?  There are two vacancies, a third will be presumably short when Helen Hoens term expires in October and Judge Faustino Fernandez replaces her.  In June of next year Chief Justice Stuart Rabner's term expires and Governor Christie - most expect - will refuse to re-appoint him.  If the court does not take the question now but waits for the intermediate court to review Jacobson's ruling four of the court's seven members could be new.

The court declared in Lewis v. Harris that civil unions must be equal to marriage in all respects.  That appears to be impossible without allowing same-sex marriage.  The public mood has shifted that way.  Even if a Christie-named majority allows gay marriage to proceed  the Governor may get to have it both ways: the court will have freed him from the grip of having to be relentless in his opposition to same-sex marriage. - gwc

Thursday, September 26, 2013

Longtime Madoff Accountant Is Arrested -

Kongisberg is a77 year old tax lawyer with an NYU LLM. - GWC

Longtime Madoff Accountant Is Arrested - "Federal authorities, deepening their criminal investigation of Bernard L. Madoff’s multibillion-dollar Ponzi scheme, have arrested Paul J. Konigsberg, a longtime accountant in Mr. Madoff’s inner circle, according to people briefed on the case. At 6 a.m. on Thursday, agents of the Federal Bureau of Investigation met Mr. Konigsberg at his lawyers’ offices in Midtown Manhattan and arrested him. He is expected to make a court appearance later in the day.A founding partner of Konigsberg Wolf & Company, a midsize New York accounting firm that is now shuttered, Mr. Konigsberg had a close business relationship with Mr. Madoff dating to at least the 1980s."

“Paul Konigsberg, a 77-year-old accountant, is an innocent victim of Bernie Madoff,” said Reed Brodsky, a lawyer for Mr. Konigsberg at Gibson Dunn & Crutcher. “He looks forward to clearing his good name at trial.”
'via Blog this'

This is Obamacare - Democratic National Committee

Implementation of the Affordable Care Act continues to be contentious.
Conservatives are dedicated to obstructing or repealing it, running a big negative ad campaigning and even barring health departments from cooperating in implementation.  Here are excerpts from the Democratic National Committee's  latest presentation of the issues, which will increasingly focus on the coverage details and prices which will soon appear on the exchanges established by the ACA.  See, for example the New York State website which guides you to health insurance options.
Load images to see Obamacare at work!
People can't be denied for preexisting conditions
Small businesses get tax credits
Obamacare ends lifetime insurance caps

Michigan's Approach to Medicaid Expansion and Reform — NEJM

by John Z. Ayanian, M.D., M.P.P.
By linking Michigan's Medicaid expansion to market-oriented changes in this federal–state program, the governor and legislature have created a pragmatic pathway to link Republican and Democratic priorities for health care. The key Democratic goal of expanding Medicaid coverage to low-income adults will be implemented in tandem with Republican objectives to control the state's health care costs, increase the role of private health plans, and require some new Medicaid enrollees to contribute toward the costs of their care. In recent years the U.S. Congress has rarely been able to achieve bipartisan agreement on health care or other major issues. Thus, the best prospects for achieving greater efficiency and equity in health care may arise from states such as Michigan that can blend public and private approaches to health care reform, with bipartisan support.

Expands Medicaid to cover adults with incomes up to 133% of federal poverty level beginning in April 2014  . 
Authorizes Michigan to withdraw from the Medicaid expansion if new state Medicaid costs in 2017 and later years are not offset by other related savings in the state budget.
Introduces cost sharing amounting to up to 5% of annual income for new enrollees with incomes of 100% to 133% of the federal poverty level and allows reduced cost sharing for enrollees who engage in healthy behaviors.
Enrolls newly covered adults in private managed-care plans, with health savings accounts funded by enrollees or their employers to cover cost sharing.
Requires new Medicaid enrollees to have access to primary care and preventive services and be offered the option of completing advance directives for end-of-life care.
Authorizes the Department of Community Health to identify innovations in Medicaid that improve the quality of care, reduce its costs, or both.

Three Important Caveats On The Obamacare Premium News

Three Important Caveats On The Obamacare Premium News:
by Dylan Scott - Talking Points Memo
"On Wednesday, the Obama administration was touting its news that health insurance premiums under Obamcare had come in significantly lower than expected. With Ted Cruz still arguing on the Senate floor about how the law would destroy the U.S. health care system, it's easy to imagine why the White House was gloating. And the premium data is mostly good news for the administration. Lower-than-expected premiums means coverage should be more affordable and cost the federal government -- which is heavily subsidizing much of it -- less, versus expectations. But there are a few pieces of the story that the federal data doesn't fully tell, which savvy health care consumers (and interested political parties) would do well to keep in mind." 'via Blog this'

Tyranny? Obamacare

Wednesday, September 25, 2013

Gary Jobson America's Cup Report 18 — America's Cup Experience

americas-cup-race18-tacks-complete.jpgGary Jobson America's Cup Report 18 — America's Cup Experienceby Gary Jobson"Today's victory by Oracle Team USA concluded an America's Cup that will add quite a unique chapter to the long history of this regatta.  At the post race press conference, team owner Larry Ellison, was on stage.  He was gracious, funny, respectful, interesting and happy.  I sat among the 100 or so journalists thinking to myself, "Where has this guy been?" Ellison explained that he was absent because he simply wanted to support his team, and let them run the defense.  There was no doubt, however, who was in charge.  Alongside Ellison were the Australian skipper of OTUSA, James Spithill, the Australian strategist, Tom Slingsby, and the British tactician, Ben Ainslie.  The team leader, New Zealander Russell Coutts was not on stage, and he was missed.  Ellison gave Coutts considerable credit for pushing the team to improve when they were behind.  Something happened during 19 races over the past 19 days that took the American team from awful to spectacular."

'via Blog this'

Burlington Makes, the World Takes: The Story of NRG Systems - James Fallows - The Atlantic

Ben & Jerry's and organic milk are the usual Vermont success story.  But NRG which produces key diagnostic and analytica equipment for wind turbines is another story.  - GWC
Burlington Makes, the World Takes: The Story of NRG Systems - James Fallows - The Atlantic:
Why Vermont, for this kind of business? Away from traditional manufacturing centers, and tech-world complexes, and even easy transport routes? The cold mountains and the early wind turbines are a sort-of explanation. Plus, as I heard, a 19th-century-onward heritage of precision machine production in the area. But there were two elements of the "why here? why now?" story I found provocative for further discussion.
One was the long ripple effects of major R&D investments. Back in the 1960s, IBM decided to put a major chip plant next door to Burlington, in Essex Junction. At its peak, it employed more than 10,000 people; now it's closer to half that size. But we kept running into people whose parents had come to the area to work for IBM, and we kept hearing that this was one of the "everything was different after that ... " watershed events for local economy, even beyond the direct payroll effect. After that: the schools got better, the universities got better, there was a different talent pool, and a different sense of plausible businesses to be startup up and run in Burlington.
'via Blog this'

Street Vendor’s Execution Stirs Anger in China -

a painting by the son of executed street vendor Xia Junfeng
Chinese censors were busy trying to suppress the charter on weibo - China's twitter as many objected to the execution of Xia Jun Feng 夏俊峰 a street vendor who killed two government inspectors, many comparing it to the life sentence meted out to former CP leader BoXilai.  Our experience is that the disparities in the death penalty will never be eliminated.  It's randomness is a principal reason capital punishment should be abolished. - GWC
Street Vendor’s Execution Stirs Anger in China -
"BEIJING — There was never any doubt that Xia Junfeng was a killer: Four years ago, in a flash of panic and fear, he stabbed to death two urban enforcement officials who had sought to punish him for operating an unlicensed shish kebab stall.  On Wednesday morning, Mr. Xia, a laid-off factory worker and father of a 13-year-old boy, was put to death in the northeastern Chinese province of Liaoning." 'via Blog this'

Tuesday, September 24, 2013

Creepy Uncle Sam - the Truth about Obamacare

The appalling Creepy Uncle Sam `Opt Out of Obamacare' video has been rebutted by Northwestern Con Law prof Andrew Koppelman.

Why stop Obamacare? It will be popular and help the Dems - Bill Kristol - 1993

The current Republican just say no strategy goes back to the 1993 William  Kristol strategy memo to kill the Clinton health plan and defeat the Democrats.  Same fear today: Obamacare will work if we don't obstruct it.
Any Republican urge to negotiate a "least bad" compromise with the Democrats, and thereby gain momentary public credit for helping the president "do something" about health care, should also be resisted. Passage of the Clinton health care plan, in any form, would guarantee and likely make permanent an unprecedented federal intrusion into and disruption of the American economy--and the establishment of the largest federal entitlement program since Social Security. Its success would signal a rebirth of centralized welfare-state policy at the very moment we have begun rolling back that idea in other areas. And, not least, it would destroy the present breadth and quality of the American health care system, still the world's finest. On grounds of national policy alone, the plan should not be amended; it should be erased.
But the Clinton proposal is also a serious political threat to the Republican Party. Republicans must therefore clearly understand the political strategy implicit in the Clinton plan--and then adopt an aggressive and uncompromising counterstrategy designed to delegitimize the proposal and defeat its partisan purpose.

Monday, September 23, 2013

How the GOP is Winning Among the Poor | GOPlifer | a blog

Racism is the short answer.  Best line: even in poverty it pays to be white. Chris Ladd lives the lonely life of a rational Texas Republican who believes in conservative values - including NOT being a racist.  - GWC
How the GOP is Winning Among the Poor | GOPlifer | a blog:
by Chris Ladd
white trash
Brian Kelsey at Civic Analytics in Austin did an excellent analysis of voting patterns in the most government dependent counties in the US. He used data from the Bureau of Economic Analysis to gather a list of counties whose residents are most dependent on government aid in the form of food stamps, Medicaid, unemployment insurance, and other “welfare” programs.
Strangely, Kelsey discovered that Romney won 21 of the 25 most welfare-dependent counties in the country. The pattern Kelsey found extends beyond his limited data set. Romney won some of his most overwhelming support in the 2012 election from America’s most “dependent” regions, carrying 77 of America’s 100 most welfare-dependent counties.
It turns out that America’s most aid-dependent counties share some other characteristics that might explain their voting patterns. They are overwhelmingly white, southern, and rural. In fact, 86 of them are in areas that did not outlaw slavery prior to the Civil War and 81 of them are majority white.
Romney lost only four of those 81. Three of those four are in the North. He lost only one county on that list which was white and Southern (Elliot, KY), and he lost there by 60 votes.
Another surprising pattern emerges from the analysis – the stark racial divide between the poorest Americans, and those who receive the most poverty relief. In an interesting irony, the list of most dependent counties does not line up with the list of poorest counties. The counties which receive the highest levels of welfare assistance are disproportionately white; while most of America’s poorest counties are majority-minority.
Though African-Americans and Hispanics suffer far higher poverty rates, they receive far less proportionately in government transfers. Poor whites receive government assistance at a far higher rate than poor non-whites. In other words, even in poverty, it pays to be white.
On the other end of the spectrum, Obama won half of the nation’s fifty wealthiest counties. He lost all of the counties on the 50 wealthiest list which are located in the South (if you exclude Virginia’s DC suburbs – not exactly the heart of Dixie).
This reflects a pattern seen across the country in the 2012 results. The Republican ticket saw its greatest success based not on wealth or welfare, but on three, ranked criteria:
1) Region – The single highest indicator of success for the GOP ticket regional. Republicans won reliably in sections of the country in which slavery was legal until Lincoln’s election.
2) Urbanity – The lower the population density, the more successful the GOP ticket.
3) Race – Romney performed best among white voters, particularly older white voters.

'via Blog this'

Democrats won't cave on Obamacare -- but on everything else...? | xpostfactoid

It was Phil Ochs who sang "love me, love me, I'm a liberal.  That's why I'm turning you in"- GWC
Democrats won't cave on Obamacare -- but on everything else...? | xpostfactoid:
by Andrew Sprung
I am getting weary of progressives' reflexive head-shaking over Republican "craziness" and mainstream reporters' warnings that the GOP may commit electoral suicide by ceding policy to their most extreme members.
Perhaps they will.  A party does not have a single will. There are doubtless Tea Party diehards that would shut down the government, push the nation into default, and never vote for any funding bill that includes the discretionary funding for Obamacare.
But they will not ultimately dictate the party's actions. What I strongly suspect will happen is that the Senate GOP will run down the clock, filibustering the so-called "clean" continuing resolution (with the Obamacare defund stripped out) until the last minute, then win a series of concessions making the horrendous House spending provisions worse -- shifting more funding under overall sequester caps from domestic to defense -- in exchange for allowing a vote. Then Senate Democrats will pat themselves on the back for "standing firm" against defunding Obamacare -- while locking in the sequester as a new funding baseline and shielding defense spending from much of its bite. Comforting reports that Red State Senate Democrats won't vote to defund Obamacare serve only to convince me that they'll give away everything else in the store.

Paul Bergrin sentenced to six life sentences for murder, racketeering |

Paul Bergrin - the former prosecutor defended himself
Paul Bergrin sentenced to six life sentences for murder, racketeering |
by Jason Grant  The Star Ledger
NEWARK – Paul W. Bergrin, the once-prominent defense lawyer and former federal prosecutor who was convicted of murder, cocaine trafficking, racketeering and other crimes, was sentenced early this afternoon to six life sentences.
As U.S. District Judge Dennis Cavanaugh began to rattle off the punishments he was imposing on Bergrin in federal court, he gave voice to what many in the courtroom understood already: that Bergrin, a now 57-year-old former lawyer to rap stars, drug lords and U.S. soldiers accused of crimes of abuse in Iraq, will spend “the remainder of his natural life” behind bars.
There is no parole in the federal system.
In addition to the six life sentences, Cavanaugh handed down decades more prison time to Bergrin, methodically going over each of the 23 criminal counts he was found guilty of last March. The multiple prison sentences will run concurrently with the life prison terms (all of which are also concurrent).
Bergrin, a barrel-chested ex-Army major and one-time amateur boxer, stood quietly behind the defense table in Newark in his beige prison scrubs as the judge read aloud one prison sentence after another. Nearly straight-backed, his jaw clenched, Bergrin simply fixed his eyes on a wall straight ahead and listened. Then he sat back down, his mouth still shut.
Once a high-profile trial attorney, Bergrin had argued during today's contentious, 3-hour hearing for exceptions to -- or “departures from” -- the long prison sentences most observers had expected. But in almost every instance, the judge rejected arguments and requests made by Bergrin and his court-appointed supporting counsel, Lawrence Lustberg.
At one point in a 40-minute speech he made to the judge, Bergrin called out plaintively, “I stand before you as humble as a human being can be. I have been brought as low as a person can possibly be brought.”
Still, vowing to appeal the jury-verdict, he also bellowed, “But I am not broken.”   'via Blog this'

Sunday, September 22, 2013

Obama: We should be obsessed // Navy Yard Eulogy

"The question is not, he said, “whether as Americans we care in moments of tragedy. Clearly we care. Our hearts are broken again. The question is do we care enough?”
“It ought to be a shock to all of us, as a nation and a people,” he said. “It ought to obsess us. It ought to lead to some sort of transformation.”
-  President Obama at the Navy Yard shooting memorial service  - September 22, 2013

American gun use is out of control. Shouldn't the world intervene? | Henry Porter | Comment is free | The Observer

To restore sanity Repeal the Second Amendment!  If the Americans won't do it, perhaps the UN should put the U.S. into a trusteeship. - GWC
American gun use is out of control. Shouldn't the world intervene? | Henry Porter | Comment is free | The Observer:

To absorb the scale of the mayhem, it's worth trying to guess the death toll of all the wars in American history since the War of Independence began in 1775, and follow that by estimating the number killed by firearms in the US since the day that Robert F. Kennedy was shot in 1968 by a .22 Iver-Johnson handgun, wielded by Sirhan Sirhan. The figures fromCongressional Research Service, plus recent statistics, tell us that from the first casualties in the battle of Lexington to recent operations in Afghanistan, the toll is 1,171,177. By contrast, the number killed by firearms, including suicides, since 1968, according to the Centres for Disease Control and Prevention and the FBI, is 1,384,171.

That 212,994 more Americans lost their lives from firearms in the last 45 years than in all wars involving the US is a staggering fact, particularly when you place it in the context of the safety-conscious, "secondary smoke" obsessions that characterise so much of American life.

'via Blog this'

Saturday, September 21, 2013

I will not negotiate with terrorists //Mike Luckovich - WaPo

Mike Luckovich - Washington Post 1.7 million more voters chose democrats than Republicans for Congress but thanks to re-districting in Republican dominated states they won and we lost.  Republicans voted earlier (in the states) and more often than we did.
Of course there is voter concentration (southern whites cast tribal votes as do urbanites).
But district representation in Congress has been an American fact since 1842.  Unless a miracle led us to a proportional representation system disparate turnout will produce unrepresentative Congresses like today's.

Friday, September 20, 2013


The Canadian Coast Guard reports 50% more ice in the Northwest Passage this year than last.  Several yachts are already icebound.  Stephen Lirakis reports. - GWC

'via Blog this'

Judge must give up bench or comedy shtick // New Jersey Supreme Court

Vincenzo Sicari as 'Vince August' at Caroline's
Municipal Court Judge Vincent Sicari as Vince August at Caroline's

Vincent Sicari, a part-time municipal court judge in South Hackensack, New Jersey, has resigned his post after the state Supreme Court compelled him to choose between his work as a low brow TV and stand-up comic and the bench.

Sicari lost the five year fight. the court rejected the argument that he had constructed two watertight compartments - one law, the other comedy. In a unanimous order the justices wrote: "The Court cannot ignore the distinct possibility that a person who has heard a routine founded on humor disparaging certain ethnic groups and religions will not be able to readily accept that the judge before whom he or she appears can maintain the objectivity and impartiality that must govern all municipal court proceedings."
“Once he chose to serve as a municipal court judge, his conduct outside the courtroom became subject to a higher standard,” they said. “He may not pursue any activity that has the capacity to demean his judicial office or causes anyone to question his impartiality.”

Judicicial Canon 2 bars any conduct “impair[ing] the dignity and esteem in which the court should be held.”

Read more:

Thursday, September 19, 2013

SEC extracts admission of wrongdoing, cash from J.P. Morgan Chase

Now that wasn't so hard, was it?  SEC extracts admission and cash. - GWC
JP Morgan Chase to pay $920M in rogue trading case _ NY Times Dealbook
More than a year after a group of traders at JPMorgan Chase caused a multibillion-dollar loss, government authorities on Thursday imposed a $920 million fine on the bank and shifted scrutiny to its senior management.Extracting the fines and a rare admission of wrongdoing from JPMorgan Chase, the nation’s largest bank, regulators in Washington and London took aim at a pervasive breakdown in controls and leadership at the bank. The deal resolves investigations from four regulators: the Securities and Exchange Commission, theOffice of the Comptroller of the Currency, the Federal Reserve and the Financial Conduct Authority in London.

Pope Francis - Church should not be a scold - Interview with Jesuit editors

Pope Francis - the first Jesuit Pope - has granted a wide-ranging interview to the Jesuit magazine America and other Jesuit editors.  His openness, his emphasis on the Gospel rather than the Church as scold will be the subject of enormous comment.  There will be weeping and lamentation at Mirror of Justice and First Things - leading outlets for right-wing Catholic intellectuals from whom gay marriage is verboten, abortion is murder and anyone who disagrees with that is a (fill in the blanks).
Pope Francis Faults Church's Focus on Gays, Abortion, Contraception - NY Times

Wednesday, September 18, 2013

Don't shut down government, end default brinksmanship- U.S. Chamber of Commerce

It's not easy being a Republican business leader since you actually have to ask what is good for business, rather than what makes you feel good - like denouncing Obamacare which has become an obsession on the right.  - gwc H.J. Res. 59, “Continuing Appropriations Resolution, 2014” | U.S. Chamber of Commerce:
The U.S. Chamber of Commerce fully recognizes the importance of restraining federal spending, both discretionary spending and mandatory spending, to reduce federal budget deficits, contain the growth of federal debt, and thereby re-establish fiscal discipline in the near-term and for the long haul. However, as the Department of Labor’s recent lackluster jobs report reminds us, the U.S. economy continues to underperform, reinforcing the need for the federal government to preserve its normal operations pending a successful outcome of broader budgetary reforms. It is not in the best interest of the U.S. business community or the American people to risk even a brief government shutdown that might trigger disruptive consequences or raise new policy uncertainties washing over the U.S. economy. Likewise, the U.S. Chamber respectfully urges the House of Representatives to raise the debt ceiling in a timely manner and thus eliminate any question of threat to the full faith and credit of the United States government. Treasury Secretary Jacob Lew has indicated the Treasury may exhaust its borrowing capacity and cash management tools as early as mid-October.
'via Blog this'

Tuesday, September 17, 2013

Memoir: “1968 San Francisco Jail Time” by Terence Cannon « Syndic

Terry Cannon is a guy who I always liked a lot. But thirty five years ago he headed back west. I hapened across him on Facebook somehow. This is his story of his days as a leading new left activist on the west coast. - GWC

Memoir: “1968 San Francisco Jail Time” by Terence Cannon « Syndic:

'via Blog this'

William Polk on Syria: What Now? - James Fallows - The Atlantic

The analysis? Acute.  the prospects? Appalling. - GWC
William Polk on Syria: What Now? - James Fallows - The Atlantic:
Syria is only the focal point of these problems.  A dynamism has been set in motion that will affect all Syria’s immediate neighbors first and then others.  If the war continues, the regional prognosis can only be chaos.   Among the first to be affected will be Lebanon which, always a fragile conglomeration, can easily fall back into civil war;  then Turkey, apparently so strong and stable, will come under increasing pressure from the Kurds who will have been encouraged by their new autonomy in Syria.  Their challenge will likely increase the rigidity and oppressiveness of the state.  Jordan, after half a century, must have nearly used up its nine lives; and the Palestinians, having effectively lost what is left of their homeland, are likely to be driven away yet again.  Not to go on, let me just predict that the already unstable area  will throb with anger, frustration, armed conflict, terrorism and revanchism.  Even those who wish to support Israel must realistically consider how this gated community can find happiness in such a slum.

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Fundamental error - the right to bear arms


A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.
When will we ever learn? The Navy Yard mass shootings by another madman reminds us of this fundamental error in our constitutional structure. An individual right to bear arms is not necessary to a well regulated militia (which itself is not necessary unless you want to broaden it to mean a police force - which is necessary).

Monday, September 16, 2013

Reappointment of N.J. Chief Justice a Red Line for Christie, Democrats // NJ Law Journal Editorial Board

The New Jersey Law Journal Editorial Board has sharply criticized  Gov. Chris Christie's startling dismissal of Helen Hoens, a conservative justice, after almost twenty years on the bench, the past seven on the state's Supreme Court.  His nominee to replace the experienced appellate judge on the high court is a Cuban American trial level supervisory judge whom the Governor lauded only for his "practical sense".  Christie has broken a lot of china in New Jersey in his tumultuous nearly four year year reign.  The judiciary has proven his most vulnerable target.  With no union to defend them Judges have seen their take-home pay reduced, and lost the security of routine tenure grants for all but those whose temperament or skills were plainly deficient.  Soon after taking office in 2010 the Governor denied tenure to John Wallace, a senior, centrist Supreme Court Justice who was eighteen months from mandatory retirement.    Since revamp of the judiciary under the 1947 state constitution no judge or Justice had been denied tenure on ideological grounds.  The State Bar was outraged, and Christie's judicial advisory committee resigned en masse.

The state's Supreme Court, in its landmark Abbott v. Burke rulings, had ordered expensive aid to urban schools to achieve the constitutional mandate of "thorough and efficient public schools".  In its Mt. Laurel cases the court compelled towns to reserve  space for low and moderate income housing - the sort of thing that today's conservatives love to hate.  
Denial of tenure to Wallace brought an apparently principled Democratic obstruction of Christie's plan to remake the Supreme Court.  Democrats refused to set hearings until Wallace's 70th birthday - his putative mandatory retirement date.  That delayed by a year confirmation of Christie's first nominee, Anne Patterson, who came from a traditional Republican firm.  The next two nominees - a gay African American, and a former federal prosecutor -   lacked conventional Supreme Court resumes.  They were rejected after confirmation hearings that can be described as nasty and short.  After that performance the Senate president - Stephen Sweeney - decided to hold no hearings at all on the next two nominees until November when both antagonists will presumably remain in place. 

The Governor's next move was to deny tenure to the conservative  Associate Justice  Hoens who had voted Christie's way on every hot button issue during his term.  Hoens, like Wallace, had given up tenure on the Appellate Division to accept a seven year term on the Supreme Court. The dismissal cost the fifty nine year old justice half of the full pension she would have earned with five months more service.  Sweeney swiftly endorsed Christie's nominee an undistinguished jurist.   Next under the guillotine will be Chief Justice Stuart Rabner, who recently earned Christie's wrath for his repudiation of Christie's executive abolition of the independent agency which administers the open housing law.  The Chief's seat will be Christie's fifth appointment to the seven member court.  Only the Democratic Senate leaders stand between the Governor and his plan to dismantle a court famous for its independence, competence, and doctrinal innovation.

But the Democratic leaders are no bastion.  They had backed Christie's bill to cut pensions and health benefits to public employees.   Judges had relied on the constitutional guarantee of no reduction in judicial pay.  When the Supreme Court voided the pension and health care cuts Democrats sponsored a constitutional amendment which eliminated the pay protection clause of the 1947 charter.   Christie's boiler plate denunciation of "activist judges" insulates him on the right - and now the Legislature's Democratic leaders have once again been his acolytes. - GWC

Saving Judicial Independence
The New Jersey Law Journal Editorial Board
September 13, 2013 
reprinted with permission (c) ALM Media.  All rights reserved
Last month, the governor announced that he would not reappoint Justice Helen Hoens but would instead nominate Judge Faustino Fernandez-Vina, the Camden County assignment judge, to fill her seat. Shortly thereafter, Senate President Stephen Sweeney announced that the Senate would hold hearings on the nominee. It has taken time to digest the magnitude of this event. Far more than the governor's 2010 refusal to reappoint Justice John Wallace Jr., this bipartisan action has the potential, if it continues, to end the New Jersey Supreme Court as we know it, as we believe it was intended, and as it has operated for more than 60 years. This is perhaps the most important issue for our judiciary and our bar since adoption of the 1947 constitution.
Unlike Justice Wallace, Justice Hoens was removed from the court without even the pretense of ideological disagreement. The governor's stated reason was only to spare her from a contentious reappointment hearing. Unlike the removal of Justice Wallace, the Senate president responded with prompt cooperation toward the confirmation of Justice Hoens' replacement. Neither Sen. Sweeney nor his patron are given to idle gestures. Absent some disastrous failure of the vetting process, we regard Judge Fernandez-Vina's confirmation as quite likely. If the terms of the deal are right, it appears that the governor and Senate are perfectly willing to replace a well-qualified sitting justice for no reason other than political expediency.
We must fight against the demise of the independent judiciary as a co-equal branch of our government. The seven-year clause of the 1947 constitution was a compromise, in which Arthur Vanderbilt, Gov. Alfred Driscoll and the other advocates of a strong judiciary had to accept less than federal-style tenure during good behavior. The record is clear that their intention was to produce tenure similar to federal court judges, with removal after seven years only in the case of demonstrated misconduct. Our framers understood, and it has proved true, that an independent judiciary enforcing a written constitution is an essential check on an overreaching executive and on the worst impulses of popular majorities.
Governors of both parties honored that understanding. Gov. Chris Christie ended the bipartisan consensus. The Senate is about to acquiesce. The removal and replacement of Justice Hoens sets a precedent in which it would be normal for justices to serve a single seven-year term before replacement. That would comply with the literal language of the constitution but not its spirit, and it will mean a judiciary far less independent, less prestigious, and much closer to the electoral cycle than we have enjoyed.
It is worth remembering what is being cast away. The New Jersey Supreme Court was one of the most well-respected state courts in the country, if not the best. In areas from product liability and tenants' rights, through surrogate parenting and end-of-life issues, to the protection of privacy in the electronic age, its decisions set precedent throughout the nation. It has always been willing to bring the law into harmony with modern conditions, and it was never afraid to protect the rights of the individual.
But the damage goes beyond the weakening of our forthright and creative court of last resort. The seven-year clause applies equally to the trial and appellate judges of the Superior Court. Weakening judicial tenure exposes those judges to pressure from well-connected litigants, from lobbyists, from legislators, and from any governor who is willing to apply it. The everyday administration of justice becomes more questionable when judges have to start looking over their shoulders.
We are well aware that the court has accumulated vehement critics among those who consider its Abbott and Mount Laurel decisions to be inimical to the suburban middle class. This editorial board has endorsed many of those decisions, but that should be beside the point. It is within a governor's legitimate power to change the interpretation of the law by using the appointing process, as it is within the Senate's legitimate power to consider a nominee's views of the law before consenting. The mandatory retirements of Justices Wallace and Virginia Long for age, and Justice Roberto Rivera-Soto's decision to leave the bench, would have given Gov. Christie ample scope to reshape the court's majority while still adhering to the tradition of tenure during good behavior. He chose instead to make a point of his power to purge the court through the seven-year clause, and it looks as if he will be given his way, in an apparent deal with the Democrats that puts all of us on the losing side.
The carnage of our judicial system must stop. Our desire to lay blame — and there is plenty of blame to go around — must take a back seat to concrete steps to preserve and restore a court and court system that we hold dear. Step one, not just Judge Fernandez-Vina, but all of the governor's three pending nominees to the court, must be given prompt and fair hearings. Step two, Chief Justice Stuart Rabner must be renominated when his time comes. That must be an uncompromising issue for the bar. Step three, the State Bar Association must put aside its normal business of meetings and CLEs and make the defense of our judiciary a cause like it has never had a cause before.
As Justice Barry Albin reminded us a few months ago when he spoke eloquently and forcefully at our state bar convention, it is up to the bar to preserve and sustain a strong and independent judiciary that can impartially dispense justice without fear of retribution. It is time for the bar to mobilize, and to take that message to the streets, to the media, to the schools and to the public. As lawyers, we understand the importance of a judiciary that is free to decide cases on the basis of the law and conscience regardless of the outcome.
It is our sacred obligation as officers of the court to educate and inform the public of what is at stake. Judicial independence and honest Senate advice and consent are worth fighting for, and all lawyers in the state owe it to our clients, the public and ourselves to engage. We as a board pledge to continue to do that. We implore the organized bar and our colleagues to do the same. This is not a Republican or Democratic issue; a big firm or solo issue; a plaintiff or defendant issue. It is an issue of what is right and an issue we will not cede on without a fight.

Read more:

Thursday, September 12, 2013

Chicago Bans Guns In Bars And Restaurants, Now Waits For Lawsuit

We're going to learn how far the state's regulatory power goes post Hellr.  - gwc
Chicago Bans Guns In Bars And Restaurants, Now Waits For Lawsuit: "CHICAGO (AP) — Forced to weaken one of the nation’s toughest gun-control laws, the Chicago City Council clearly signaled it wasn’t backing down on Wednesday by banning concealed weapons in all bars and restaurants that sell liquor — and noting that attorneys were ready to fight the anticipated legal challenges. State legislators were forced by a federal appeals court in July to adopt a law allowing residents to carry concealed weapons in Illinois, the only state that still banned the practice. The resulting state law largely stripped city and county officials of their authority to regulate guns, which especially irked officials in Chicago, where residents had to apply for concealed-carry permits through the police chief."

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Retirement Inequality Chartbook: How the 401(k) revolution created a few big winners and many losers | Economic Policy Institute

Read it and weep.  This is what breaking the unions brought us.  Lower wages, less retirement secutiry. - GWC
Retirement Inequality Chartbook: How the 401(k) revolution created a few big winners and many losers | Economic Policy Institute:

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Cass Sunstein's The Republic of Choosing | Boston Review

Cass Sunstein is a brilliant thinker,and prolific writer of impressive range.  But that doesn't mean he makes sense all the time.  His new book unfortunately fails.  For liberals (like him)  the `Chicago Boys' free-market cost-benefit utilitarianism is intellectual Kool Aid.  William Simon explains in his review of the new book by the former Obama Administration "regulation czar" The Republic of Choosing | Boston Review:
Sunstein’s strategy [of accommodation of libertarians] misconceives where liberals should be looking for allies and what they need to do to win them. They should be looking in the center, not on the fringe, and the key to winning centrist support for liberal economic programs is to demonstrate their capacity to deal effectively with public problems, not to increase their accommodation of individual choice. Most Americans are not strong libertarians in economic matters. They do not see the capacity to choose among health insurance plans or to buy tax-free cigarettes as matters of liberty in any sense akin to rights of free speech, due process, political participation, or (for some) gun possession. They see choice in the economic domain largely in utilitarian terms. If regimes that allow choice leave most people better off, they are good. But choice should be readily sacrificed when doing so leads to more efficient provision of services.

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Charles Joseph Hynes - Brooklyn D.A. Defeated in Re-election Bid

Charles J. Hynes - in the moment of defeat
I suppose that generational change and ethnic change made 78 year old Brooklyn D.A. Joe Hynes - an Irish Catholic Democrat and paragon of virtue - a marked man.  It's a shame really.  I understand that in the passion to take his place Kenneth Thompson focused on a series of charges such as that he was too slow to challenge ultra-orthodox abusers because of the rabbis who delivered large blocs of votes for him  Whatever Hynes's sins were - if any - they were venial when stacked up against his record.  Vivien Yee pays him due respect on the occasion of his defeat in Tuesday's Democratic Primary.  - GWC
For Hynes, History of Making Brooklyn Safer Wasn't Enough - NY Times

Charles J. Hynes, the district attorney who was Brooklyn’s most powerful political figure and top law enforcement officer for more than 23 years, liked to say he would probably die in office. As he instituted programs that changed New York City’s criminal justice system and became a heavyweight in the borough’s insular political world, there seemed to be no part of Brooklyn he had not touched and few members of the bar who had not worked with or against him.
But on Tuesday night, he accepted a stunning defeat as voters swept a much younger man into his place, and became the first district attorney in the city to lose a re-election bid since 1955.

Environment, Law, and History: RIP Ronald Coase

I get agida thinking about Ronald Coase, who died last month at 102. His impact on the law - cost-benefit analysis and market-based approaches was huge. Mostly a bad thing, in my view, as I discuss in my history of product liability law Punctuated Equilibrium. But he got the Nobel Prize. Cass Sunstein explains the famous Coase theorem. - gwc

Environment, Law, and History: RIP Ronald Coase:
Coase's 1960 article, "The Problem of Social Cost", the most-cited law review article of all time, had an immense effect on both the study of environmental law and its design, providing intellectual backing for two prominent trends in environmental law of the last few decades: market-based policies and cost-benefit analysis. As Cass Sunstein explains:His target was the great British economist Arthur Cecil Pigou, who contended that if a polluter is emitting smoke, and thus causing injury, the best response is to make the factory owner pay for the injury or to impose a corrective tax.Coase said Pigou failed to see “the reciprocal nature of the problem.” Suppose that a very noisy factory is causing legal injury to a doctor operating next door. Under Pigou’s approach, the factory should be required to pay damages to the doctor. But Coase pointed out that we could also make the doctor bear the cost. His central insight was that if people can bargain with one another, and if it isn’t costly for them to do so, it just doesn’t matter who is required to pay: People will negotiate their way to the efficient solution. This is the Coase theorem in a nutshell.
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Wednesday, September 11, 2013

Why legal education should last for three years - The Washington Post

Why legal education should last for three years - The Washington Post:
by Bruce Ackerman
Bruce Ackerman is a professor of law and political science at Yale University. 
 President Obama was dead wrong last month in suggesting that law school educations should be only two years. The third year is not an expensive frill but a crucial resource in training lawyers for 21st-century challenges. U.S. law is in the midst of an intellectual revolution. Supreme Court Justice Oliver Wendell Holmes saw it coming more than a century ago: “For the rational study of the law the blackletter man [who focuses on existing legal rules] may be the man of the present, but the man of the future is the man of statistics and the master of economics.”  Holmes’s future is our present. ",,,,

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Chicago City Council Reluctantly Ends Gun Registry -

Richard Posner, the prolific, sometimes unorthodox, conservative judge of the U.S. Court of Appeals in Chicago declared in  Moore v. Madigan that there is a fundamental right to go armed on the streets of Chicago.  Just as a Revolutionary War settler could bring a gun to to the trading post to protect himsel from "hostile Indians", today a citizen can go armed on the South Side of Chicago where danger also lurks.  Tthe Illinois Legislature was compelled to repeal is ban on concealed carry of weapons.  Now the Chicago City Council has been compelled to follow suit. Personally I'm appalled.  Yesterday the NRA succeded in a recall vote of two pro-gun control Colorado state legislators.  I feel like the inmates are taking over the asylum.  - GWC
Chicago City Council Reluctantly Ends Gun Registry -
“There’s no scenario where this makes the jobs of police easier,” said Jen Ludwig, director of the University of Chicago’s Crime Lab, about having to repeal the registry.
The city was forced to make the move after the United States Court of Appeals for the Seventh District ruled in December that Illinois’s ban on the carrying of concealed weapons in public was unconstitutional. The decision gave state lawmakers a task they never wanted: to write and pass a law by June 9 creating rules that allow concealed carry.

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Leniency and Severity in China’s Death Penalty Debate by Margaret K. Lewis :: SSRN

China incarcerates far fewer of its citizens than doe we in the U.S. who hold 25% of the world's prisoners.  Sentences are shorter (a life term is 15 to 24 years).  The death penalty however is widely used - including for crimes of governmental corruption or headline grabbing offenses.  Despite the CP's claim that its ideology is a scientific one, little data is available to gage what is being done and whether it is successful.  The number of executions is a state secret.  Even press reports are unreliable because many if not most death sentences are provisional - 2 years good behaviour in jail and the penalty is commuted to life.

The Supreme People's Court, after years of failing to exercise its right of reviiew, announced it will review all death sentences.   Margaret Lewis takes a look at the impact of that decision.  - GWC
Leniency and Severity in China’s Death Penalty Debate by Margaret K. Lewis :: SSRN:
China has implemented an initial wave of death penalty reforms that returned final review power of all capital cases to the Supreme People’s Court and reportedly significantly curbed executions. After reviewing recent legal developments concerning capital cases, this Article explores how the initial push to reduce use of the death penalty has given way to a more complex and nuanced debate over what factors should determine when the death penalty is appropriate. At this juncture in the reform trajectory, the dilemma of when to be lenient and when to be severe is particularly acute as public opinion chafes against a rapid decline in executions, especially when those treated leniently are affluent and/or politically well-connected.

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