Thursday, February 27, 2014

Character & fitness: George Anastaplo - Loyola Law Prof Dies at 88

George Anastaplo has died aged 88.  The political philosopher and  Loyola Chicago law professor as a young man defied the Illinois State Bar which refused to admit him because he would not say if he was a Communist or not.  He appealed - all the way to the Supreme Court which upheld the denial in a 1961 opinion by Justice John Marshall Harlan.  The high court recited the state's Character and Fitness committee's findings
"We draw no inference of disloyalty or subversion from applicant's continued refusal to answer questions concerning Communist or other subversive affiliations. We do, however, hold that there is a strong public interest in our being free to question applicants for admission to the bar on their adherence to our basic institutions and form of government and that such public interest in the character of its attorneys overrides an applicant's private interest in keeping such views to himself. By failing to respond to this higher public interest, we hold that the applicant has obstructed the proper functions of the Committee. . . . We cannot certify the applicant as worthy of the trust and confidence of the public when we do not know that he is so worthy and when he has prevented us from finding out."
Harlan relied on its holding in Konigsberg v. State Bar of Callifornia, explaining "there was some, though weak, independent evidence that the applicant had once been connected with the Communist Party, while here, there was no such evidence as to is of no constitutional significance whether the State's interrogation of an applicant on matters relevant to these qualifications -- in this case, Communist Party membership -- is prompted by information which it already has about him from other sources, or arises merely from a good faith belief in the need for exploratory or testing questioning of the applicant."
Relying on the promise of liberty in the Declaration of Independence, Anastaplo an immigrant from Greece at age ten, also refused to say if he was member of a church, believed in a "supreme being" or was a member of the Ku Klux Klan.
Justice Hugo Black, joined by Chief Justice Warren, and Associates Douglas and Brennan, explained:
After having received his pre-college education in the public schools of his home town, he had discontinued his education at the age of eighteen, and joined the Air Force during the middle of World War II -- flying as a navigator in every major theater of the military operations of that war. Upon receiving an honorable discharge in 1947, he had come to Chicago and resumed his education, obtaining his undergraduate degree at the University of Chicago and entering immediately into the study of law at the University of Chicago Law School. His record throughout his life, both as a student and as a citizen, was unblemished.

Pope Francis must act faster on abuse issue | National Catholic Reporter

Francis must act faster on abuse issue | National Catholic Reporter:
by the NCR Editorial Staff
What [the Vatican] has not yet done is take steps to tell the full truth and to address the impunity of high church officials. On recommendation from his Council of Cardinals, the pope has announced he will appoint a special commission to advise him directly on best practices in handling sex abuse. To demonstrate resolve at the highest levels that zero tolerance is a permanent part of the church culture, the mandate of this new commission must also include establishing disciplinary procedures for bishops and chancery officials who obstruct or ignore the enforcement of church law on clergy sex abuse.On some counts, the U.N. report may have been flawed, but in the essential matters of the clergy sex abuse crisis, the report was simply naming the truth that has been apparent to so many for a very long time.In January, Francis announced that the commission will be housed in the Congregation for the Doctrine of the Faith, but the commission is yet to be officially constituted. We know Francis can act fast when he wants to. He must act faster on this issue.

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Law Profs' Sympathetic View of Vetoed Arizona Bill

Arizona Governor Jan Brewer has vetoed a bill that provided a defense to business owners who refused to serve gays or lesbians - in violation of the owner's religious beliefs.  Republican Party leaders ducked and covered - fearing another self-inflicted blow by the party of No. Most people were of the view that this was like segregated lunch counters.  OMG was the response.  But Douglas Laycock of the University of Virginia and other (mostly conservative) law professors take a different view.  They see the now-vetoed bill SB 1062 as an extension of the Religious Freedom Restoration Act which limits laws of general application if government substantially burdens religious practice and has not taken the least restrictive means to advance a compelling governmental interest.

Freedom to engage in commerce is surely a right of a member of a protected class.  Recently a New Mexico photographer said she had no duty to agree to photograph a gay wedding - since she thinks such bonds are sinful.  That is a good distance from the lunch counter at Woolworth's in Greensboro, North Carolina fifty years ago.

Laycock et. al explain their view in a letter to Governor Jan Brewer:
The person invoking RFRA would still have to prove that he had a sincere religious belief and that state or local government was imposing a substantial burden on his exercise of that religious belief. And the government, or the person on the other side of the lawsuit, could still show that compliance with the law was necessary to serve a compelling government interest. As a business gets bigger and more impersonal, courts will become more skeptical about claims of substantial burden on the owner’s exercise of religion. And as a business gets bigger, the government’s claim of compelling interest will become stronger.
Arizona’s RFRA, like all RFRAs, leaves resolution of these issues to the courts for two related reasons. First, it is impossible for legislatures to foresee all the potential conflicts between the diverse religious practices of the many faiths practiced in Arizona and the diverse array of regulations enacted by the state and all its agencies, counties, municipalities, and special purpose districts. And second, when passions are aroused on all sides, as they have been in this case, it becomes extraordinarily difficult for legislatures to make principled decisions about whether to make exceptions for unpopular religious practices. Courts can generally devote more time to the question, hear the evidence from both sides, and be more insulated from interest-group pressure.
h/t Mirrors of Justice blog
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Tuesday, February 25, 2014

Notre Dame Loses as 7th Circuit Upholds ACA's Contraceptive Care Mandate

Employers who provide health insurance must include among the benefits FDA approved contraceptive care - without co-payment by patients.  This Affordable Care Act (Obamacare) mandate applies only to those who provide insurance.  The University of Notre Dame does but it objects.  Adhering to a papal mandate that Catholics widely ignore, the university refuses to be complicit in this "evil". Even signing a form that opts out is objectionable it is said - because that merely authorizes the objectionable benefit to be provided by their health insurer.

DHHS Secretary Sebelius is the named
defendant in Notre Dame's challenge
In an opinion by Judge Richard Posner the U. S. Court of Appeals for the Seventh Circuit has found (2-1) that Notre Dame's conscientious objection is sufficiently accommodated by the Department of Health and Human Services.  In a characteristically plain opinion Posner (over the dissent of Judge David Hamilton) begins with a discussion of the importance of the measure:
"The health concerns that motivated the inclusion of contraception in the guidelines on needs of women for preventive care begin with the fact that about half of all pregnancies in the United States are unintended, and 40 percent of them end in abortion and many others in premature births or other birth problems. Institute of Medicine, Clinical Preventive Services  for  Women:  Closing  the  Gaps  102–03 (2011)."

The court explains that "The [DHHS] regulations an accommodation between the secular interests that motivate the mandate to provide  contraceptive  services to women free of  charge and the interests of religious institutions that provide health services.  Accommodation  is  consistent  with  the  balancing act  required  by  the  Religious  Freedom  Restoration  Act (“substantial burden,” “compelling governmental interest,” “least restrictive means”)."

The form that Notre Dame is required to complete and file is not a substantial burden.  Nor can the court order its insurers not to provide the objectionable benefits:
"while a religious institution has a broad immunity from being required to engage in acts that violate the tenets of its faith, it has no right to prevent other institutions, whether the government or a health insurance  company, from  engaging in acts that merely offend the institution."
This appeal is from the denial of a preliminary injunction, so the case will go on.  But the 7th Circuit's conclusion that Notre Dame is unlikely to prevail on the merits is helpful to the United States in its defense of the ACA contraceptive benefit mandate which will be argued before the Supreme Court on March 25. - GWC

Monday, February 24, 2014

Jobs in big law -top 20 law schools

% of grads who got jobs in the National Law Journal 250 largest firms
1.Columbia 65.5%
2.NYU 54.9%
3.Harvard 53.6%
4.Chicago 53.0%
5.Penn 52.5%
6.Northwestern 51.1%
7.Duke 48.6%
8.Stanford 47.1%
9.Cornell 45.1%
10.Berkeley 44.9%
11.UVA 44.2%
12.Michigan 41.3%
13.Yale 38.8%
14.Georgetown 37.8%
15.Texas 31.8%
16.Vanderbilt 31.6%
17.UCLA 30.4%
18.USC 29.6%
19.Fordham 24.5%
20.Notre Dame 24.5%

Bishop: Synod questionnaire shows most reject teaching on contraceptives | National Catholic Reporter

"The train left the station long ago" is the report of St. Petersburg, Florida Bishop Robert Lynch.  Catholics pay little heed to Church teaching on birth control - and don't have much to say for its approach to divorced Catholics, people living together, and same-sex couples.  This will come as no surprise to conservative Catholic legal theorists like Doug Sisk at St. Thomas (Minneapolis) who appear to have thrown in the towel on stopping the secular juggernaut which conflates religion with conscience.  Abandoning the conservative critique of rights as irresponsibility he has now positioned himself in the debate over the contraception mandate as a defender of diversity: the right of the minority to adhere to its countercultural norms.  Fine with me - so long as they don't establish their reactionary religious norms and impose them on others: which is what the contraceptive mandate objectors seek to do, as Nelson Tebbe, et al. argue.
 - GWC
Bishop: Synod questionnaire shows most reject teaching on contraceptives | National Catholic Reporter:
In an unusually blunt report to the Vatican, Bishop Robert Lynch of St. Petersburg, Fla., said that even most regular churchgoing Catholics in his diocese find the church's teaching on artificial contraception no longer relevant.
"On the matter of artificial contraception, the responses might be characterized by saying, 'That train left the station long ago,' " he wrote in a Feb. 7 blog about his report. "Catholics have made up their minds and the sensus fidelium [the sense of the faithful] suggests the rejection of church teaching on this subject."
In the blog on his diocesan website, Lynch said more than 6,800 Catholics in the diocese responded to a Vatican request worldwide for local church feedback on pastoral issues of marriage and family life, in preparation for October's special synod on that topic. He said he sent his report on the results to the Vatican in mid-January.
Most of the respondents agreed with church teaching that marriage -- or at least sacramental marriage -- is strictly a union of one man and one woman, he said, but at the same time many had serious problems with the church's pastoral approach to divorced and remarried couples and to same-sex couples.
He said they also had issues concerning the way the church deals pastorally with young couples cohabiting before marriage, a phenomenon that has grown significantly in recent years.

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Case Tests Restraints on Lawyers Quoting Judges' Accolades in Ads | New Jersey Law Journal

Newark lawyer Andrew Dwyer
Andrew Dwyer - a plaintiff's employment law practitioner - is by all accounts (including a recent adversary with whom I have spoken) a fine lawyer.  New Jersey law provides for fee shifting in discrimination cases.  Where he has succeeded judges have made findings regarding Dwyer's skill and performance.  He has advertised those judicial statements as facts - which they are.

But according to the Committee on Attorney Advertising of the New Jersey Supreme Court they are misleading statements that run afoul the Court's Advertising Guideline 3 which the Committee adopted.  It provides:
Attorney Advertisements: Use of Quotations or Excerpts From Judicial Opinions About  the Legal Abilities of an Attorney
An Attorney or law firm may not include, on a website or other advertisement, a
quotation or excerpt from a court opinion (oral or written) about the attorney’s abilities or legal services. An attorney may, however, present the full text of opinions, including those that discuss the attorney’s legal abilities, on a website or other advertisement. 
In the Committee's view the statement while factually accurate as reports are misleading regarding their meaning.  The statements are findings of fact - not judicial endorsements of a an attorney.  To make such an endorsement would be improper for a judge and Dwyer's use of them gives a misleading impression.  Dwyer challenged the Guideline in federal courtas a violation of his First Amendment right to commercial speech.  The disciplinary stricture was upheld last year in an opinion by by District Judge Faith Hochberg who granted summary judgment to the state.  Dwyer has now taken the matter to the Third Circuit Court of Appeals. - GWC

Case Tests Restraints on Lawyers Quoting Judges' Accolades in Ads | New Jersey Law Journal:
by Mary Pat Gallagher
A federal appeals court is pondering whether New Jersey's gag on lawyers using complimentary quotes from judges to advertise their services constitutes an illegal restraint on speech.In a case argued Feb. 18 to the Third Circuit, Newark employment lawyer Andrew Dwyer challenges the constitutionality of Attorney Advertising Guideline 3, adopted in response to his posting on his website of laudatory comments about him from two court opinions, along with the judges' names.In one, Judge Jose Fuentes, then a state judge in Hudson County but now a state appellate judge, called Dwyer "one of the most exceptional lawyers I've had the pleasure of appearing before me."He described Dwyer as "tenacious, professional in his presentation to the Court, a bit too exuberant at times, certainly passionate about his position," and beyond fault or question as to his zeal, loyalty to his client and his intellect.The other quote, from Union County Judge William Wertheimer said Dwyer achieved a "spectacular result" for his client and termed him a "fierce, if sometimes not disinterested advocate."In April 2008, Wertheimer wrote to Dwyer, asking him remove the quote, but Dwyer refused, leading Assignment Judge Walter Barisonek to contact the Committee on Attorney Advertising.The panel spent several years formulating the guideline, with input from Dwyer. As adopted May 24, 2012, bars lawyers and law firms from using quotes or excerpts from oral or written opinions about the lawyer's abilities or services on a website or other advertisement. Only the full text of the opinion with the comments can be presented..Dwyer brought suit to block the guideline just days before its June 1, 2012, effective date on the basis that it would infringe on free speech.U.S. District Judge Faith Hochberg in Newark dismissed the case last June. In her view, the guideline was not a ban on speech but merely a regulation requiring additional disclosure—i.e. the full opinion, to provide context.Without it, "judicial quotations relating to an attorney's abilities could easily be misconstrued as improper judicial endorsement of an attorney, thereby threatening the integrity of the judicial system," she wrote.
Read more:

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Sunday, February 23, 2014

Legal Ethics Forum: "Entry-level Law Firm Recruiting Remains Mostly Flat"

Legal Ethics Forum: "Entry-level Law Firm Recruiting Remains Mostly Flat":
Details from NALP. Excerpt:
In the fall of 2013, for the fifth year in a row, law firms continued to engage in limited entry-level hiring. With the large law firm business model still facing significant challenges five years after the Great Recession, recruiting volumes by U.S. law firms on the campuses of U.S. law schools remained mostly flat during the late summer and early fall of 2013 compared with recruiting activity the year before. There were variations by region and by city, but overall law firms continued to exhibit caution in recruiting new associates. These are among the key findings reported in NALP's just released Perspectives on Fall 2013 Law Student Recruiting, an annual report based on NALP surveys on selected aspects of fall recruitment activity and the experiences of both legal employers and law schools. A total of 123 U.S. law schools and more than 400 law firms provided information in response to NALP’s surveys on fall 2013 law student recruiting activities.

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Asylum Fraud in Chinatown: An Industry of Lies -

FBI agents outside a Chinatown, NY law office.
Chinese seeking to stay in New York have been aided by people who sought to help them get asylum.  To do that they have to prove a likelihood persecution if they returned.  Aiding false applications became a lucrative business in Chinatown, New York.  Unfortunately employees of ten law firms were among those indicted in a federal crackdown. - GWC 
Asylum Fraud in Chinatown: An Industry of Lies -
by Kirk Semple Joseph Goldstein and  Jeffrey E. Singer
"A Chinese woman walked into a law office in New York’s Chinatown and asked to see her lawyer. She had applied for asylum, claiming that she had been forced to get an abortion in China to comply with the country’s family-planning laws, and she was anxious about her coming interview with immigration officials.She had good reason to be worried: Her claim, invented by her lawyer’s associates, was false.But the lawyer, John Wang, told her to relax. The process, he said, was straightforward, and as long as she memorized a few details, everything would be fine. “You are making yourself nervous,” he said in Mandarin. “All you would be asked is the same few rubbish questions.”“Just make it up,” the lawyer added.The conversation, in December 2010, was secretly recorded by federal officials conducting a wide investigation of immigration fraud in New York’s Chinese population. The inquiry has led to the prosecution of at least 30 people — lawyers (including Mr. Wang), paralegals, interpreters and even an employee of a church, who is on trial, accused of coaching asylum applicants in basic tenets of Christianity to prop up their claims of religious persecution. All were charged with helping hundreds of Chinese immigrants apply for asylum using false tales of persecution."

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Saturday, February 22, 2014

Christie’s Lawyer in Bridge Scandal Quits Case Over Tolls - Bloomberg

Randy Mastro - Chris Christie's $650/hour lawyer (really? whose money is going to that?)  -has announced that he will no longer personally defend the Port Authority toll increase challenge which he has til now been handling for the bi-state agency.  I don't see what good that does if his firm Gibson Dunn continues the representation.  If Mastro is conflicted so is his firm.  He and the firm should quit both representations.
Frankly the whole thing stinks.  I don't know what Bridgegate will turn out to have been about.  But the soft underbelly of the Christie operation has been exposed.  The state government, like the Port Authority, is a pork barrel operation for them.  They can steer state and Port Authority contracts to themselves, their friends, and clients. - gwc
Christie’s Lawyer in Bridge Scandal Quits Case Over Tolls - Bloomberg:
The lawyer representing New Jersey Governor Chris Christie’s office in probes over deliberate traffic jams at the George Washington Bridge withdrew from unrelated litigation involving the span’s operator, a move that may have avoided a potential conflict of interest.
Randy Mastro leads a legal team coordinating Christie’s response to probes by state lawmakers and U.S. prosecutors into the closing of access lanes to the bridge from Sept. 9 to 12 in Fort Lee, New Jersey. The borough’s Democratic mayor has said allies of Christie, a Republican, created the gridlock to punish him for not endorsing the governor’s re-election last fall.
Mastro, 57, will no longer defend the Port Authority of New York and New Jersey, which operates the bridge, against separate claims that it illegally raised tolls for the span and other facilities in 2011, according to a Feb. 20 filing in Manhattan federal court. The filing gave no reason for his withdrawal.

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Our Secular Future | America Magazine

The conservative religious magazine First Things - founded by Fr. Richard John Neuhaus - is a prime venue for conservative Catholics.  They are certain that the Church's most conservative stands (e.g..the ban on artificial contraception, adherence to heterosexual-only marriage) are at the center of Christian belief.  I find that proposition baseless.  But here is an offering from that quarter.  Personally I think it is...well, just read it. - gwc
Our Secular Future | America Magazine:
by R.B. Reno  - Editor, First Things

The Heart of the Conflict

To be blunt: Religious people who hold traditional values are in the way of what many powerful people want. We are in the way of widespread acceptance of abortion, unrestricted embryonic stem cell research and experimentation with fetal tissue. We are in the way of doctor-assisted suicide, euthanasia and the mercy-killing of genetically defective infants. We are in the way of new reproductive technologies, which will become more important as our society makes sex more sterile. We are in the way of gay rights and the redefinition of marriage. We are in the way of the nones and the engaged progressives and their larger goal of deconstructing traditional moral limits so that they can be reconstructed in accord with their vision of the future.
Traditional religious people are in the way, and many of our fellow Americans are doing their best to push us out of the way. The outspoken among us have been largely expelled from higher education and other institutions of cultural authority. This exclusion should not surprise us. Traditional Christianity and churchgoing no longer define the social consensus in the United States. The Protestant era is over, and in its demise we have not seen the Catholic moment that the Rev. Richard John Neuhaus, founder of First Things, hoped for. Instead, we seem to be heading into the secular moment, which is almost certain to find ways to redefine religious liberty, or at least try.

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Friday, February 21, 2014

New Jersey State Bar Association - New Jersey State Bar Association resolution calls for Chief Justice Rabner’s renomination

New Jersey State Bar Association - New Jersey State Bar Association resolution calls for Chief Justice Rabner’s renomination:
NEW BRUNSWICK: The New Jersey State Bar Association supports the renomination of Chief Justice Stuart Rabner. 
In a resolution released today, the state’s largest group of legal professionals said Rabner has unquestionably demonstrated the knowledge and decorum to continue to serve as head of the state’s highest court. His scholarship, fair administration of the courts, establishment of programs to help residents resolve conflicts, and outreach to the community has distinguished the judicial branch. 
Further, the resolution states it would be an “unprecedented intrusion of politics into the third co-equal branch, and continued evidence of attempts to undermine the independence of that branch, to decline the reappointment of the sitting Chief Justice, the person entrusted to lead the judicial branch of government, as no chief justice has been denied tenure under our current constitution.” 
The text of the resolution is below. Click here (PDF) to download the pdf.

NJSBA Resolution
A resolution expressing the position of the New Jersey State Bar Association in support of the renomination of Supreme Court Chief Justice Stuart Rabner
WHEREAS, it is the mission of the New Jersey State Bar Association to serve as the voice of New Jersey attorneys to other organizations, governmental entities and the public, with regard to the law, the legal system and the legal profession, and
WHEREAS, Chief Justice Stuart Rabner was nominated and earned confirmation to the position in June 2007 and was sworn-in as Chief Justice that month, and 
WHEREAS, Chief Justice Stuart Rabner has unquestionably demonstrated the knowledge and decorum to serve, and has, in fact, served on the Supreme Court with distinction, as is obvious through his thoughtful opinions, his fair administration of the Courts, his establishment of programs aimed at resolving New Jerseyans’ conflicts before they reach the courts, and his outreach to the community to educate citizens about the courts and respond to the needs of users of the courts, and
WHEREAS, during his tenure on the Supreme Court, Chief Justice Rabner has authored dozens of opinions that exhibit intellectual rigor, clear reasoning and an unbiased commitment to improving New Jersey law, and 
WHEREAS, during his tenure, Chief Justice Rabner has implemented significant administrative and institutional reforms aimed at outreach to the public and the bar, including: commencing a foreclosure mediation program aimed at expeditiously resolving the many foreclosure actions filed in the wake of the recent economic recession; expanding the Judiciary’s website to enable the public easier access to “self-help” information about court filing requirements and procedures; launching the Benchmarks Civics Program that makes volunteer judges and lawyers available to address community organizations; implementing a “one-judge/one school” program that allows judges to talk to school children about the court system; appointing women and minority judges and lawyers to leadership positions within the Judiciary and its many Supreme Court-appointed committees; and being responsive to the concerns of members of the bar including frequent meetings with organized bar leaders and speaking at bar functions, and
WHEREAS, the independence and integrity of our judges and an independent judicial branch, to whom New Jersey residents can confidently turn to resolve their differences in a fair and equitable manner, is one of the crowning achievements of this state, and is the foundation upon which the well-deserved reputation of New Jersey’s court system is grounded, and
WHEREAS, it would be an unprecedented intrusion of politics into the third co-equal branch, and continued evidence of attempts to undermine the independence of that branch, to decline the reappointment of the sitting Chief Justice, the person entrusted to lead the judicial branch of government, as no chief justice has been denied tenure under our current constitution, and
NOW, THEREFORE, BE IT RESOLVED that New Jersey State Bar Association calls for the reappointment of Chief Justice Stuart Rabner, who throughout his tenure by his leadership, scholarship, sound judgment and demeanor has distinguished himself and the Supreme Court of New Jersey. 
I, John E. Keefe Jr., Secretary of the New Jersey State Bar Association, do hereby certify that the above is a full, true and correct copy of a resolution unanimously passed by the Board of Trustees at a regularly scheduled meeting on Jan. 24, 2014. 

In witness whereof, I have hereto set my hand as such Secretary and
affix the corporate seal of the New Jersey State Bar Association on this fourteenth day of February, 2014.

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Editorial: N.J. archbishop's retirement home an assault on parishioners' goodwill | National Catholic Reporter

Fzttqydqi6xdguvroyepNewark Archbishop John Myers may be headed for hot water at the Vatican where humility not majesty is the order of the day.  - GWC

Editorial: N.J. archbishop's retirement home an assault on parishioners' goodwill | National Catholic Reporter:
Newark, N.J., Archbishop John Myers' decision to expand his summer residence cum retirement home -- already a model of luxury with five bedrooms, three full bathrooms, an elevator, a three-car garage and a large outdoor pool and valued at nearly $800,000 -- is nothing short of an assault on the goodwill and trust of the people of God.The 3,000-square-foot addition, at a minimum cost of $500,000 (it is reported that furnishings, architectural costs and landscaping are not included in that figure), will bring the total area of the residence to 7,400 square feet and the total value to at least $1.3 million.The addition will house an indoor exercise pool, a hot tub, three fireplaces, a library, another elevator and a "gallery" to provide a panoramic view of the grounds below, according to a report in The Star-Ledger of Newark.Gasp. Yes, a gasp is appropriate. The arrogance and self-importance required to undertake such a project on one's own behalf and funded, at least partially, with the proceeds from the sale of other archdiocesan-owned property is breathtaking.

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The Stimulus Tragedy -

The nation's budget and your household budget do not operate by the same rules.  Thinking that it does has buttressed deficit reduction mantras that have retarded, not spurred recovery. Krugman explains how he was right, Obama mostly right, and the deficit hawks utterly, tragically wrong. - GWC
The Stimulus Tragedy -
by Paul Krugman

Five years have passed since President Obama signed the American Recovery and Reinvestment Act — the “stimulus” — into law. With the passage of time, it has become clear that the act did a vast amount of good. It helped end the economy’s plunge; it created or saved millions of jobs; it left behind an important legacy of public and private investment.
It was also a political disaster. And the consequences of that political disaster — the perception that stimulus failed — have haunted economic policy ever since.
Let’s start with the good the stimulus did.
 for the complete article click HERE

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Wednesday, February 19, 2014

What courses should law students take? Harvard Survey of Law Firms

Harvard Law School commissioned a survey of lawyers at "big law" firms that hire Harvard Law grads.  They asked what courses would you recommend.  Not much surprising.  Basically "take classes in what we do".  No pitch for clinics, etc. Recommendations are on a scale to 1 to 5.  - GWC

Business Organization courses offered at Harvard.

Non Business Organization courses offered at Harvard.

Japanese bishops: Vatican mindset doesn't fit Asian church | National Catholic Reporter

Ignorance is bliss for Japanese Catholics, say their bishops in a report to the Vatican.  The Church there is not "obsessed" with sexual matters.  No crisis of conscience over contraception there.  It's the norm.  So get with it, the Japanese bishops say to the Vatican in preparation for the upcoming Synod on the family.  It's going to be an interesting meeting. - GWC
Japanese bishops: Vatican mindset doesn't fit Asian church | National Catholic Reporter:
by Joshua J. McElwee
In response to a question on how Japanese Catholics accept the church's teachings prohibiting artificial contraception, for example, the Japanese [bishops] state: "Contemporary Catholics are either indifferent to or unaware of the teaching of the Church."
"Most Catholics in Japan have not heard of Humanae vitae," the Japanese state, referring to Pope Paul VI's encyclical letter banning the practice. "If they have, they probably do not make it an important part of their lives. Social and cultural values as well as financial considerations are more important."
"There is a big gap between the Vatican and reality," they continue. "Condom use is recommended in sex education classes in schools."
Responding as to whether Japanese Catholics promote so-called natural methods of birth control, the Japanese respond: "There are some attempts to introduce such practices as the Billings Method, but few people know about it. For the most part, the Church in Japan is not obsessed with sexual matters."
In response to a question on couples who live together before marriage, the Japanese say, "The pastoral practice of the Church must begin from the premise that cohabitation and civil marriage outside the church have become the norm."
The Japanese bishops are an interesting contrast to the self-righteousness of Robert George - the prominent conservative Catholic lawyer/philosopher at Princeton.  In a post at  Mirror of Justice he states his views on the case of a young teacher at a Montana Catholic school who was fired because she was pregnant and unmarried, giving scandal.  Professor George writes:
“If [the teacher] were repentant, then I, as her fellow sinner, would support keeping her on. I’d even host the baby shower. The example being set for the school children in that case would be one of repentance and forgiveness—loving the sinner, even while rejecting the sin. Of course, if her intention is to flout the Church’s teachings, then it’s a different story. That’s what is going on when a teacher, say, moves in with his or her boyfriend or girlfriend or enters into a civil marriage with a person of his or her own sex—or goes into the strip club business.”
As the Japanese bishops said "The pastoral practice of the Church must begin from the premise that cohabitation and civil marriage outside the church have become the norm.".

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Tuesday, February 18, 2014

Public Defenders, Bolstered by a Work Analysis and Rulings, Push Back Against a Tide of Cases -

Public Defenders, Bolstered by a Work Analysis and Rulings, Push Back Against a Tide of Cases -
by Erick Eckholm
"CLAYTON, Mo. — On a typical recent morning Colleen M. Polak, a St. Louis County public defender, ran upstairs and down and up again and in and out of four courtrooms, simultaneously representing clients in 10 cases. She consulted, negotiated and sometimes just waited. On this day, one client was sentenced to six years for illegal gun possession after a judge dismissed Ms. Polak’s objections to what she called questionable evidence. Ms. Polak, 32, was disappointed, saying that she had spent weekends on the case so as not to deprive other clients of her time but that it was impossible to spread herself as thinly as the job required."

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Sunday, February 16, 2014

Court should take up a new opportunity to repudiate Korematsu

Peter Irons - a lawyer and political science professor at UC San Diego has campaigned long and successfully for justice for the Japanese Americans rounded up on a racial basis and put in camps during World War II.  Although convictions have been reversed and token compensation offered by Congress, the U.S. Supreme Court decision upholding the internments has never been overruled.  Irons says there is a another chance for the court to go on record. . - GWC
Court should take up a new opportunity to repudiate Korematsu:
by Peter Irons
The time has come—and is long overdue—for the Supreme Court to provide a proper burial of its discredited but still dangerous decisions upholding the wartime internment of more than 110,000 Americans of Japanese ancestry in what President Franklin D. Roosevelt correctly labeled as “concentration camps.”Ruling in April 1943, the Court affirmed the criminal convictions of Gordon Hirabayashi and Minoru Yasui for violating military curfew orders that were imposed on “all persons of Japanese ancestry.”  In December 1944, the Court upheld the conviction of Fred Korematsu for defying an “exclusion” order that would have forced him into a “relocation center” hastily constructed in the Utah desert....

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Hobby Lobby Part VI: The parties' common ground . . . and a fundamental divide about religious exemptions for for-profit employers

Hobby Lobby filed its brief this week, as did the United States in Conestoga Wood.  Final briefs are due March 12 in the contraception mandate cases. Oral argument is March 25.
 = GWC
Balkinization: <i>Hobby Lobby</i> Part VI: The parties' common ground . . . and a fundamental divide about religious exemptions for for-profit employers:
by Marty Lederman
The common ground is the parties' agreement that individuals can and do exercise religion in all aspects of their lives, including when they are engaged in commercial activities.  As the Solicitor General puts it:  "[T]he government’s argument in no sense depends on the proposition that people of faith must check their religious convictions at the door when they enter the commercial arena. . . .  The government does not question the importance of religious exercise to the Hahns [the owners/directors of Conestoga Wood] or to the millions of other believers in this Nation.  Nor does the government fail to appreciate that faith guides adherents throughout their day, including when they carry out responsibilities as corporate managers and directors."  
... the basic message of the government's brief is clear--namely, that to grant a religious exemption here, to a for-profit employer whose employees would bear the burden of accommodating the owners' religious commitments, would be a groundbreaking departure from the judiciary's (and Congress's) historical practice, one that could well pave the way for religious exemption claims by for-profit employers with respect to many of the myriad other statutes governing commercial enterprises, including nondiscrimination requirements, zoning regulations, taxes, and the like.

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Friday, February 14, 2014

Second Amendmentism allows arms to the un-threatened: 9th Circuit

Judge Diarmuid O'Scannlain, U.S. Court of Appeals for the Ninth Circuit
9th Circuit Judge Diarmuid O'Scannlain, Second Amendmentista
U.S. Court of Appeals Judge  Diarmuid O'Scannlain, despite his charming name, is more druid than christian.  Or perhaps we should just recognize Second Amendmentism as a religion.  Only faith can explain why someone would believe there is a fundamental right for these men to be armed.  In Peruta v. San Diego County a divided Ninth Circuit panel, in an opinion by O'Scannlain, ruled 2 -1 in favor of these plaintiffs:
"Wishing to carry handguns for self-defense but unable to document specific threats against them, plaintiffs Edward Peruta, Michelle Laxson, James Dodd, Leslie Buncher, and Mark Cleary (collectively “the applicants”), all residents of San Diego County, were either denied concealed-carry licenses because they could not establish “good cause” or decided not to apply, confident that their mere desire to carry for self-defense would fall short of establishing “good cause” as the County defines it. An additional plaintiff, the California Rifle and Pistol Association Foundation, comprises many San Diego Country residents “in the same predicament as the individual Plaintiffs.” No plaintiff is otherwise barred under federal or state law from possessing firearms." 

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Thursday, February 13, 2014

Democracy in action, kinda | xpostfactoid

So 28 Republicans voted for the "clean" bill to increase the national debt.  A vote most of the 226 House Republicans favor, we assume, because they can't actually imagine forcing the United States to default on its debts.  But surely they don't really "want" to increase the debt.  It's just that they want weapons, prisons, and even Social Security, and Medicare.  Just not more than that.  So is this democracy? "Kinda" says Andrew Sprung. - gwc
Democracy in action, kinda | xpostfactoid:
So yes, our political system is dysfunctional, in that it can't pass legislation that in some cases a clear majority of reps in both houses of Congress would like to pass. The dysfunction is  a product of divided government, polarized districts, our constitutional "triple veto" on legislation, self-imposed House and Senate rules, a yellow media that inflames the right, a corrupt campaign finance system, residual racism, and inherited distrust of government.  But it ain't exactly undemocratic.

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China Law Translate | Xu Zhiyong Opinion

Beijing Intermediate People's Court No.1

"Defendant Xu Zhiyong has committed the crime of gathering a crowd to disturb order in a public place. He is sentenced to a fixed-term imprisonment of four years."
- Beijing Municipal No. 1 Intermediate People’s Court Criminal Division, First-Instance Verdict No. 5268 (2013)

IN 1948 in Terminiello v. Chicago the U.S. Supreme Court confronted a question much like that of the Beijing Intermediate People's Court.
Father Arthur Terminiello, a right-wing demagogue, in an auditorium in Chicago, delivered a vitriolic speech in which he criticized various political and racial groups and viciously condemned the protesting crowd that had gathered outside the auditorium. Policemen assigned to the event were unable to prevent several disturbances by the "angry and turbulent" crowd. The police arrested Terminiello for "breach of the peace." He was then tried and convicted for his central role in inciting a riot.
In a 5-to-4 decision, the Court held that the "breach of the peace" ordinance unconstitutionally infringed upon the freedom of speech. Noting that "[t]he vitality of civil and political institutions in our society depends on free discussion," the Court held that speech could be restricted only in the event that it was "likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest." 
Justice William O. Douglas wrote that "a function of free speech under our system is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger." 

China has a long way to go - and there's no reason to think they are going to get there.  Xu Zhiyong - an advocate of western-style liberal democracy - is a determined adversary of the Chinese Communist party which maintains a virtual monopoly of political power.

Jeremy Daum and the China Translate project volunteers have translated the judgment of the court.  One small irony is that the Chinese Supreme People's Court has directed that all judgments be posted on the internet.  In that respect they are well ahead of us.  But in tolerance of political speech and dissent they are not in the ballpark - gwc

China Law Translate | Xu Zhiyong Opinion:

Beijing Municipal People’s Procuratorate Branch No. 1 charged that:

Between July 2012 and March 2013, the defendant Xu Zhiyong, individually and together with others, exploited social issues of great public concern to organize, orchestrate and incite many people to take multiple actions to gather crowds to distrub order in public places, including in front of the Ministry of Education, in front of the Beijing Municipal Education Commission, the South Gate of Chaoyang Park, Zhongguancun, and the Xidan Cultural Square. After committing the offenses, the defendant Xu Zhiyong was apprehended by public security organs.

The Beijing Municipal People’s Procuratorate Branch No. 1 turned over evidence to this court, including physical evidence, written evidence, witness testimony, evaluation opinions, records of crime-scene inspections, audio-visual materials, digital data and the defendant’s statements and explanations. [The procuratorate] found that the defendant Xu Zhiyong repeatedly organized and orchestrated the gathering of crowds to disturb the order of public places and resisted and obstructed state public safety management personnel's lawful performance of their duties; that the circumstances were serious, and that qualify him as a ringleader; that his acts have violated the provisions of Article 291 of the Criminal Law of the People’s Republic of China so that criminal liability should be pursued for the offense of gathering a crowd to disturb the order of a public place; and requested this court to punish him in in accordance with law.

During the trial, the defendant Xu Zhiyong raised objections on jurisdiction and the separation of the case into multiple trials, and did not express opinions on the facts and offenses charged in the indictment. During the court investigation and debate phases, the collegiate bench on repeatedly informed Xu Zhiyong that he enjoys the right to a defense and may express his opinions regarding the facts and evidence in the case. Xu Zhiyong neither expressed his opinions regarding the facts and evidence in this case nor mounted a defense. During the closing statement phase of the trial, Xu Zhiyong discussed his motives for his actions and indicated that the agitation of individual participants were caused by other factors.

During the pre-trial conference, the defendant Xu Zhiyong’s defenders raised objections to the jurisdiction and separation of the case into multiple trials. During the court investigation and debate phases, the collegiate bench repeatedly reminded the defenders that they have a duty of defense in accordance with the law, and should to present materials and opinions, on the basis of facts and the law, showing the the defendant’s innocence or the lightness of the offense, and preserve the defendant’s procedural rights and other lawful rights and interests. During the court’s investigation phase, Xu Zhiyong’s defenders neither posed questions to Xu Zhiyong nor offered opinions on the evidence and no defense arguments were expressed during the court debate phase..

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Monday, February 10, 2014

NJ State Bar Calls on Christie to Re-appoint Chief Justice Rabner

Governor Chris Christie took office five years ago with a vow to rein in the courts which had long been an object of conservative disdain.  Chief among the grievances were that in the twenty five years between capital punishment's legislative restoration and repeal none of the sixty persons sentenced to death had been executed; the state Supreme Court's open and affordable housing principles of Mt. Laurel had been the source of friction; and large sums were spent by the state in hopes of achieving parity of urban-suburban public school spending and educational results mandated via the Abbott v. Burke rulings.

Shortly thereafter the Governor took the unprecedented step of denying tenure to a long-sitting Associate Justice of the Supreme Court.  A protracted battle with the Democrat-controlled legislature followed.  Christie has gotten only two nominees onto the court which operates now with temporary assignments of two senior Appellate Division judges.
A third vacancy is imminent - that of Christie's former deputy at the U.S. Attorney's office - Democrat and Chief Justice Stuart Rabner.  His seven year term expires in June.  Ralph Lamparello, the State Bar Association's President has spoken out on the issue in an op-ed published in Sunday's Star Ledger.  It follows.  - GWC

Christie should keep Rabner as Supreme Court chief justice: Opinion
Last month, in his State of the State address, Gov. Chris Christie apologized to the people of New Jersey for actions taken regarding lane closures on the George Washington Bridge.

The governor acknowledged that as the leader of the state, he is responsible for its achievements and its missteps. He uttered the phrase so many before him have said: “Mistakes were clearly made.”

While the governor was referring to the Bridge­gate controversy, parallels can be drawn to his actions toward the judicial branch — our third, separate and co-equal branch of government.

The New Jersey State Bar Association believes a mistake was clearly made when the governor took the unprecedented action to not reappoint Justice John Wallace Jr. Another mistake was clearly made when he chose to personally vilify Justice Barry Albin. And, of course, a mistake was clearly made when he refused to nominate Justice Helen Hoens for reappointment last fall.

Mistakes are part of the human experience. We can and do make them every day in the course of our personal and professional lives. It is such a part of the fabric of our existence that magnets and bumper stickers abound bearing commentator Esther Dyson’s entreaty to “always make new mistakes.”

The reverberations of these past mistakes continue to be felt throughout the judiciary. This spring, Chief Justice Stuart Rabner will complete his initial term of seven years as head of the state’s judicial branch, making him eligible for tenure. Through his opinions and his administration of the courts, he has demonstrated the qualities every chief justice should have. In fact, he epitomizes the very qualifications the governor recently said he looks for in a justice.

“What you’re looking for is someone who understands the exalted nature of the work, but does not believe it makes them personally exalted,” the governor said last month at the ceremonial swearing-in of Justice Faustino Fernandez-Vina.

Those words and sentiments describe our chief justice’s tenure and demeanor precisely.

Even more, in 2007, when his nomination was being held up by senatorial courtesy, the governor, as U.S. attorney, said he couldn’t stand by while no one in Trenton spoke up for his former colleague.

At a speech in West Windsor, he stated, “When I read that no one was standing up for him, I turned to my wife and said, ‘I’m doing it today.’ Because good and decent people need to have someone out there who is willing to tell the truth, and not first make a political calculation about whether this is a convenient moment to tell the truth. It’s time for people who believe in people like Stu Rabner to stand up and say enough is enough.”

The New Jersey State Bar Association believes strongly that judges, and the chief justice in particular, deserve tenure — save some demonstration that they lack the knowledge or decorum to serve. We are here “to stand up and say enough is enough.”

It would be an unprecedented intrusion of politics into the judicial branch to decline the reappointment of the sitting chief justice, the person entrusted to lead this branch of government. In fact, no chief justice has been denied tenure under our current constitution. It would be a clear mistake in the case of this chief, a “good and decent” person, who has so admirably led our judiciary for the past seven years.

This is more than just about him rightfully receiving tenure. This is about recognizing and honoring the integrity of the judiciary. To decline the chief justice’s reappointment would strike a body blow to the concept of an independent judiciary, one where the residents of this state seek to resolve their differences in a fair and equitable manner. It would be a clear and blatant attempt to co-opt the judiciary by another branch that is supposed to be its equal, not its superior. Further, it would diminish the democracy envisioned by the Founding Fathers of this country and the framers of the 1947 New Jersey Constitution.

Besides talking about mistakes, the governor further promised in his State of the State message to “do better.” He should apply that mantra not just to governing the state’s highways and bridges, but also to the state’s judiciary.

Ralph J. Lamparello is president of the New Jersey State Bar Association and managing partner of Chasan Leyner & Lamparello PC in Secaucus.