Sunday, May 31, 2015

Putting a halo on Dorothy Day shows her no love | National Catholic Reporter

The movement to canonize Dorothy Day, founder of the Catholic Worker movement is gaining steam.  Lauded by everyone from the bishops who once spurned her to MSM house conservative David Brooks we seem to be headed toward St. Dorothy Day.  But the process of sanctification has a large measure of sanitization.  Stripped of her renunciation of militarism, she is lauded for her sacrificial work in service to the poor.  But Dorothy Day was a rebel not a Mother Theresa.  Actually she was a better model than the famous, conservative nun. - gwc
Putting a halo on Dorothy Day shows her no love | National Catholic Reporter
by Colman McCarthy
What's afoot with Dorothy Day is hardly new. She is being defanged by selectively hailing her decades of running soup kitchens for the homeless while ignoring her persistent damnings of American militarism and the hierarchy's complicity. The protocol equals the sanitizing of Martin Luther King Jr., sung as the "I have a dream" man, but unsung as the condemner of the United States for having the world's most violent government.

Saturday, May 30, 2015

Dennis Hastert - a tragedy of intolerance

The Dennis Hastert story is tragic. By ordinary measure he should have been indicted and served twenty years in prison, and would now be living in a tent or under a bridge, or camper on the outskirts of town thanks to Megan's Law.  But underlying this all is the suppression of homosexuality, the shame, etc. which dominated at the time.  I suppose being a wrestling coach puts you in the presence of a lot of beautiful young bodies: `proximate occasions of sin' they used to tell us.  Maybe he struggled with temptation and failed.  His ambition forced him to denounce things like gay marriage that in a more open society he would have been free to support - or even embrace? - gwc
The "Hastert' and "Hastertland" Paragraphs from Wooldridge and Micklethwaite's "The Right Nation"
Dennis Hastert, the Republican Speaker... a hulking former wrestling coach, is a fairly straightforward conservative: antiabortion, anti-gay marriage, anti-Kyoto, pro-invading Iraq, pro-death penalty.... Hastert got a 100 percent rating from the American Conservative Union in the days when he voted regularly....
Compared with other “red” districts, Hastert’s (Illinois’s fourteenth) is deep scarlet. It begins in the suburbs thirty miles west of the Chicago Loop and then stretches out through miles of cornfields to a point just forty miles short of the Iowa border. To drive across it takes a good three hours. Hastert’s district can claim to be the most Republican in the country, at least if you factor in length of loyalty to the party Unlike nouveaux droites such as Texas, Illinois has been full of Republicans since the party’s founding in 1854.... Hastert’s district is resolutely “normal.” The local citizens think of themselves as typical Americans, and their geographical vision is often bounded by the Great Plains that surround them.

Housing as Holdout: Segregation in American Neighborhoods by Rashmi Dyal-Chand :: SSRN

Torts Today: Housing as Holdout: Segregation in American Neighborhoods by Rashmi Dyal-Chand :: SSRN
Chris Christie won the governorship of New Jersey by several appeals - the tough on corrupt politicians meme was important.  But his promise to remake the Supreme Court of New Jersey was an important appeal to white anxiety and resentment.  Central to that was his opposition to court-mandated aid to poor school districts and the pledge (carried out) to abolish the Council on Affordable Housing the agency that implemented the Court's Mount Laurel mandate to allow affordable housing in developing suburban municipalities.  Stymied by the Democratic state Senate having failed in his court-makeover, the New Jersey Supreme Court reclaimed jurisdiction and directed the lower courts to enforce the mandate.  It brushed aside the agency (COAH) which had issued no rules or regulations after the Court had held Christie had no right to abolish it by executive order.

Rashmi Dyal-Chand, a New Jersey litigator turned law professor, reviewing three books on the persistence and effects of racially segregated housing , observes:
Although the “Mount Laurel Doctrine” was meaningfully diluted by a 1985 statute that allows municipalities to meet their “fair share” of affordable housing by contributing financially to developments in other towns, the doctrine nonetheless has had an extraordinarily positive impact on affordable housing development in New Jersey.

Housing as Holdout: Segregation in American Neighborhoods by Rashmi Dyal-Chand :: SSRN

by Rashmi Dyal-Chand  (Northeastern U. School of Law)

How far have people who are not African American gone to keep African Americans out of their neighborhoods? And how far might they go? These are the questions that link the three recent books on housing reviewed in this article: Jeannine Bell, Hate Thy Neighbor: Move-In Violence and the Persistence of Racial Segregation in American Housing; Richard R.W. Brooks and Carol M. Rose,Saving the Neighborhood: Racially Restrictive Covenants, Law and Social Norms; and Douglas S. Massey et al., Climbing Mount Laurel: The Struggle for Affordable Housing and Social Mobility in an American Suburb.

Thursday, May 28, 2015

Nebraska Eliminates Capital Punishment - Legislators Override Veto

The death penalty is not fundamentally opposed by most people. But it is losing practical support. Confidence in the accuracy of the justice system has suffered with the drumbeat of exonerations, and the death penalty is now imposed with such rarity that it feels arbitrary. 
Today the nominally non-partisan but conservative single-chamber state Legislature in Nebraska overrode the veto of Gov. Pete Ricketts (R) and abolished capital punishment in the state which carried out its last execution in 1997.
 Seven years ago I predicted that New Jersey's legislative repeal of capital punishment would be a herald of change. At a one day symposium I organized (proceedings here, key resources here) we heard from prosecutors, defenders, legislators, the Governor, and the citizen group which mobilized to bring about the change. Today Nebraska followed in that track. -gwcNebraska Abolishes Death Penalty -

by Julie Bosman

LINCOLN, Neb. — Nebraska on Wednesday became the first conservative state in more than 40 years to abolish the death penalty, with lawmakers defying their Republican governor, Pete Ricketts, a staunch supporter of capital punishment who had lobbied vigorously against banning it.

By a 30 to 19 vote that cut across party lines, the Legislature overrode the governor’s veto on Tuesday of a bill repealing the state’s death penalty law. The measure garnered just enough votes to overcome the veto.

The vote at the State Capitol here capped a months long battle that pitted most lawmakers in the unicameral Legislature against the governor, many law enforcement officials and some family members of murder victims whose killers are on death row. The Legislature approved the repeal bill three times this year, each time by a veto-proof majority, before sending it to Mr. Ricketts’s desk.

Wednesday, May 27, 2015

Same-sex marriage for Alabama -- but not yet

Same-sex marriage for Alabama -- but not yet
by Lyle Denniston

A federal judge in Mobile ruled on Thursday that same-sex marriage must be available throughout Alabama, for any gay or lesbian couple wishing to apply for a license — but not yet.

U.S. District Judge Callie V.S. Granade simultaneously acted on a statewide basis — to make Alabama the thirty-seventh state where such marriages would be legal — but then put her decision on hold until after the Supreme Court rules on the constitutional issue, probably late next month.

In the meantime, no gay or lesbian couple would be able to get a marriage license in Alabama — first, because the judge’s order is not now binding on the 68 state probate judges who issue such licenses, and, second, because the Alabama Supreme Court has barred all of them from doing so.

For weeks, the potential conflict between Judge Granade in federal court and the Alabama’s highest state court has been deepening, and the actions that Granade took on Thursday could have produced a direct confrontation had she not put the new rulings on hold. She did find in her ruling that the state court’s order to the judges not to issue any licenses did not prevent her from ordering them — in an independent legal proceeding — to do so.

In fact, the judge remarked that her order would have bound all 68 judges immediately, but then her own delay order postponed any such command.

In late January, in a pair of cases, Judge Granade had struck down Alabama’s ban on same-sex marriage. But those rulings each involved only a single couple, so the decisions’ binding effect was very limited. Even so, some probate judges began issuing licenses to gay and lesbian couples based on those rulings, and hundreds of those couples were actually married before the state supreme court stepped in and issued a statewide order against any such licensing, at the request of private groups opposed to such marriages. (No same-sex couples were parties in the state supreme court proceeding.)

In the meantime, lawyers for same-sex couples made a new maneuver in Judge Granade’s court. They sought, under federal court Rule 23, the creation of a statewide class that would include any same-sex couple wishing to marry, with the order to be made binding on all 68 probate judges.

They also asked the judge to issue a statewide order requiring that any member of the class who sought a license be given one by any probate judge in any county.

On Thursday, after weeks of legal maneuvering by both sides, the Mobile judge acted: She did create the class, likely to include 7,000 or more same-sex couples, at least some number of whom — perhaps many — would want to take advantage of the opportunity to wed. She did so in an eighteen-page opinion, finding that the statewide class would satisfy all of the requirements of Rule 23, and so would a class on the other side of all 68 probate judges.

Then, borrowing the reasoning of her January rulings that the Alabama ban was unconstitutional, she issued a fourteen-page opinon extending the order to issue marriage licenses to all counties in the state, for all couples seeking such permission.

That opinion laid out all of her reasoning for the new decision, then concluded with specific orders: once again, striking down the state ban, then barring all 68 judges from enforcing the state ban, and also requiring lawyers for the couples to formally notify the judges of that duty.

If her ruling had stopped at that point, Alabama would have been the latest state where marriage of gays and lesbians had become legal everywhere within its borders. But there was a fourth order, on the last page: “Because the issues raised by this case are subject to an imminent decision by the United States Supreme Court,” her order barring enforcement of the state ban is “stayed until the Supreme Court issues its ruling.”

What would happen to the judge’s new order if the Supreme Court were to find that states have the constitutional authority to refuse to allow same-sex marriages was not mentioned, but the state would almost certainly move immediately in Judge Granade’s court to apply the Supreme Court decision and vacate her rulings.

If the Justices do rule that the right to marry must be open to same-sex couples all across the nation, then Judge Granade’s rulings on Thursday would presumably go into effect very quickly, if not immediately.

Tuesday, May 26, 2015

Ideological Republicans and Group Interest Democrats: The Asymmetry of American Party Politics Matt Grossmann and David A. Hopkins

Ideological Republicans and GroupInterest Democrats: The Asymmetryof American Party Politics 
Matt Grossmann and David A. Hopkins

The Republican Party is primarily the agent of an ideological movement whose supporters prize doctrinal purity, while the Democratic Party is better understood as a coalition of social groups seeking concrete government action. This asymmetry is reinforced by American public opinion, which favors left of-center positions on most specific policy issues yet simultaneously shares the general conservative preference for smaller and less active government.

Each party therefore faces a distinctive governing challenge in balancing the unique demands of its base with the need to maintain broad popular support. This foundational difference between the parties also explains why the rise of the Tea Party movement among Republicans in recent years has not been accompanied by an equivalent ideological insurgency among Democrats.

Monday, May 25, 2015

LBJ before Selma: wait -- no, go | xpostfactoid

LBJ before Selma: wait -- no, go | xpostfactoid
by Andrew Sprung

After seeing Ava DuVernay' Selma a few weeks ago, I bought Nick Kotz's Judgment Days: Lyndon Baines Johnson, Martin Luther King, Jr. and the Laws that Changed America (2005). It's a digest of LBJ and King's interactions, beginning in fruitful if sometimes tense collaboration and ending in tragic enmity.  I can't say how central a source this book itself was for the movie, but the encounters it records indicate that those who claim that Johnson was more supportive of the voting rights campaign than their early encounter in the movie implies and those who claim that the scene is an accurate depiction of a pre-Selma encounter are both right. - 
read more

After Ramadi, the US must be honest about its goals | Hussein Ibish - The National

The Isis Conundrum

ISIS wields state power in much of Syria and Iraq.  They have land, cash, natural resources, ideology, and a highly motivated and effective army.

In 2003 the United States firmly cast its lot with the pro-Iranian Shiites of Iraq. The delusion or worse of the Bush administration and its echoes (like Thomas Friedman) was that we were going to democratize Iraq,with the rest of the Arab world to follow. But giving state power to one ethnic or tribal group is not a path to toleration with rare exception like the liberal and socialist internationalists of the African National Congress.

In Iraq the constitution imposed, drafted by well-meaning liberals like Noah Feldman, was not embraced for its toleration, but only for the opportunity to rule that the Shiites seized, and the thin hope of Sunnis that the new structure would protect them.
Contrary to American wishful thinking savage tribal warfare not tolerance followed. You remember the car bombs, the death squads, the drills into victims brains, the brutal prisons, et cetera. 

 As Seton Hall law professor Bernard Freamon demonstrated twelve years ago suicide bombing has no historic support in Islamic law.  In the Fordham International Law Journal he explained "current justifications for self-annihilatory violence are instead the result of a major reinterpretation of the theology and religious law on martyrdom and the military jihad advanced by Shi'ite theologians and jurists in Iraq and Iran between the mid-1960s and the late-1970s".  In Iraq, and in Palestine, that heresy took root with catastrophic effect.

Now the United States is confronted with a force that- because its tribal roots are deep - cannot be simply dismissed as terrorist or degraded by air power. -gwc
After Ramadi, the US must be honest about its goals | The National
by Hussein Ibish  (Ibish is a senior resident scholar at the Gulf Arab States Institute in Washington)

...a May 20 State Department background briefing was refreshingly frank and informative, and suggests that the setback in Ramadi may have shaken up at least parts of the Obama administration and prompted a greater willingness to publicly assess the difficulties and shortcomings of the campaign.
The unnamed senior State Department official identifies ISIL as “a formidable, enormous threat,” and says that it will take at least three years merely to “degrade” the group, let alone “destroy” it. The official admits the US government doesn’t know how many fighters ISIL has overall, or how many of them were deployed in overrunning Ramadi. And the official also admits, “you would have to be delusional not to take something like this [turn of events] and say, ‘What went wrong?’”
But, as military and security expert Anthony Cordesman has correctly noted, the coalition, and particularly the United States, have now reached a point in the struggle against ISIL “where more action is needed than simply addressing one defeat with a new degree of honesty and depth”.
The US and its partners are either going to have to start committing the kind of resources, and taking the kind of risks, necessary to inflict serious and sustained damage on ISIL, or publicly admit that the real policy is a containment strategy that accepts ISIL as a part of the Middle Eastern political landscape into the foreseeable future.

China: Landmark Environmental Lawsuit Trial Begins

China in 2014 revised its Environmental Protection Law.  Article 58 grants registered  public interest organizations standing to sue.  Though hampered by minimal resources, and judicial inexperience, but emboldened by the strong policy support found in the law, NGO's have begun to take up the challenge. - gwc

Court hearing China's landmark NGO environmental lawsuit - China -

Court hearing China's landmark NGO environmental lawsuit


BEIJING -- A Chinese court has begun hearing a lawsuit filed by green organizations against a quarry for environmental damage in a landmark case empowered by China's strengthened environmental law.
The case, filed by Friends of Nature and Fujian Green Home, opened in Nanping Municipal Intermediate People's Court in the southeastern province of Fujian on Friday.
The two NGOs accuse four people of running an unlicensed quarry that has severely damaged vegetation on a hill in Nanping City since 2008, demanding they take responsibility for restoration work, said a lawyer for the plaintiffs.
This is the first NGO-filed case over non-pollution-related environmental damage to be heard in a Chinese court since the amended Environmental Protection Law took effect on January 1.
The law allowed city-level NGOs to launch environmental lawsuits, which conservationists said encourages more social forces to join the battle against profit-obsessed companies and local governments who neglect their green liabilities.
China has only about 80,000 officials enforcing its environmental laws, which experts say is far from enough for overseeing the country's 1.5 million companies, counting the registered ones only.
But about 700 organizations can join the fight under a new law, which allows any NGO registered at city-level or higher that has specialized in environmental protection for more than five years to initiate legal cases on pollution and environmental damage, legal experts said.
"Such environmental lawsuits can deter polluting factories by raising their lawbreaking costs and by encouraging public supervision," said Ma Yong, legal expert with the All-China Environment Federation.
But Ma said the many difficulties, including high expenses, that are involved in launching such legal actions mean a remarkable increase in environmental lawsuits is unlikely. He also opposed overpraising such cases.
"Such lawsuits are important supplement to government law enforcement and the last defense line, but not replacement," Ma said. "Most of the environmental problems still need to be solved by the government."

Sunday, May 24, 2015

President Obama Helped Moved the Overton Window to the Left by Nancy LeTourneau | Political Animal | The Washington Monthly

President Obama Helped Moved the Overton Window to the Left by Nancy LeTourneau | Political Animal | The Washington Monthly
Here’s how Wikipedia defines the Overton Window:
In political theory, the Overton window is the range of ideas the public will accept. According to the theory, an idea’s political viability depends mainly on whether it falls within that window, rather than on politicians’ individual preferences.
I was reminded of that when I read the article by Anne Gearan titled: Clinton is Banking on the Obama Coalition to Win.
Hillary Rodham Clinton is running as the most liberal Democratic presidential front-runner in decades, with positions on issues from gay marriage to immigration that would, in past elections, have put her at her party’s precarious left edge…

Thursday, May 21, 2015

Sarah Davis Becomes First Texas GOP Lawmaker To Support Gay Marriage

Texas, like the rest of the south, is a sort of one-Party state that  could be called Baptiststan.  But some day it will become a two party state.  People like Rep.Sarah Davis will lead that process.  - gwc

Sarah Davis Becomes First Texas GOP Lawmaker To Support Gay Marriage// Talking Points Memo

“I just don’t agree with the sentiment of the letter,” Davis told the Observer in an interview published Thursday. “I don’t feel the need to pass legislation or vote for legislation that prohibits two adults who love each other to be able to be joined in a civil union or marriage. It does not affect my marriage.”
According to the Observer, that makes Davis a first in Texas history. Davis represents a district in an affluent area of Houston.
Same-sex marriage is not currently legal in Texas. Ahead of a U.S. Supreme Court decision that could result in the invalidation of Texas' gay marriage ban, state lawmakers have attempted to pass legislation that could undermine such a ruling.

Wednesday, May 20, 2015

Amtrak derailment lawsuits: Federal law limits damages to $200 million.

Liability damages caps are mandates that the injured make an involuntary donation to the tortfeasor - that old-fashioned but expressive noun.  The Amtrak cap was justified on the ground that Amtrak was federally funded.  Still is - under-funded. - gwc
Amtrak derailment lawsuits: Federal law limits damages to $200 million. Slate
by John Culhane // Widener Law School

The news from last week’s horrific Amtrak derailment has followed a predictable course, from focus on the deaths and injuries to a search for an explanation and then for accountability. For currently inexplicable reasons, the train accelerated at precisely the wrong time: as it approached a dangerous curve. And since Amtrak hadn’t gotten around to installing a system called Positive Train Control, which could have stopped the train automatically, the engine jumped off the tracks at the curve, and passenger cars flipped over or were crushed.
As soon as the issue of blame surfaced and then, inevitably, possible lawsuits, so did this fact: Because of a damages-limiting federal law enacted in 1997, the victims and their survivors are unlikely to be fully compensated for injury or death. The law limits recovery to a total of $200 million per accident; that’s probably not enough in the case of a mass disaster like this one, in which a single victim’s claim could reach $20 million. Eight people were killed in the Philadelphia accident, and scores were seriously injured. Twenty remain hospitalized, with five in critical condition. Perhaps this tragedy will spark a reform or repeal of this ill-advised law, but I wouldn’t count on it. An even worse train accident that killed 25 people seven years ago in California didn’t lead to remedial action by Congress. All that’s come out of that legislative body since this latest disaster has been a tone-deaf committee vote in the House of Representatives the very next day to slash Amtrak’s paltry funding even more.
Why is there a $200 million limit in the first place? As usual with Amtrak, the reason can be traced to congressional reluctance to fund the program at sustainable levels. At the time the 1997 law was passed, the federally subsidized company was facing bankruptcy and needed bailout funds. The reluctant lawmakers ponied up the dough needed to keep the wheels turning, but they inserted the liability-limitation provision into the Amtrak Reform and Accountability ActThe effect was to shift fiscal responsibility from the taxpayers as a whole to the injured parties by reducing the monetary sum they’d otherwise be eligible to recover in damages through the tort system. And the amount has never been increased to reflect inflation.

Right On Crime Seeks To Improve The Criminal Justice System In Its Entirety | Right on Crime

Right On Crime Seeks To Improve The Criminal Justice System In Its Entirety | Right on Crime
by Michael Haugen
In a new column for The New Republic released on Monday, Stephen Lurie correctly acknowledges that our sprawling criminal justice system has recently enjoyed widespread attention from lawmakers and policy houses—Republican and Democrat alike—who are interested in reform. Having realized that the decades-old “tough on crime” stance has led to spiraling prison populations, disproportionate sentencing for crime (particularly non-violent drug offenses), and mounting costs, there is a bipartisan push on to seek solutions that will address these persistent issues. Reforms ought to make the justice system more equitable and efficient, but should always be performed with an eye towards preserving the public safety.
Such has been the mission of Right on Crime since its inception in late 2010. Our raison d’etre is to “fight crime, support victims, and protect taxpayers.” We don’t place special significance on any single objective to the detriment of the others, believing it possible to achieve harmony between them all with every potential reform we support.
Which is why it’s unfortunate that Lurie frames our desired goals as being primarily concerned with “fiscal responsibility” and that the drive for reform in general is cast in such “conservative terms” like “cutting costs, saving funds, and minimizing the size of the system.” While such concerns are indeed important, Lurie’s prevailing argument appears to be that the fiscal impact of our unwieldy justice system is the sole concern of those interested in reform, but this would be an unfair indictment, as I hope to show.
Right on Crime has many other concerns beyond fiscal considerations that guide our policy recommendations. A deeper look at our statement of principles reveal other beliefs that we prize in a justice system: transparency, performance measures that hold it accountable for its results, and that criminal law “should be reserved for conduct that is either blameworthy or threatens public safety.” As alluded to earlier, preserving public safety is important as well, because:
“…the establishment of a well-functioning criminal justice system enforces order and respect for every person’s right to property and life, and ensures that liberty does not lead to license.”
Again, we believe that all of these principles, including a responsibility of protecting taxpayer resources, are of equal import.

Nebraska Lawmakers Vote To Abolish Death Penalty With Veto-Proof Majority

Seven years ago I predicted that New Jersey's legislative repeal of capital punishment would be a herald of change.  At a one day symposium I organized (proceedings here,  key resources here) we heard from prosecutors, defenders, legislators, the Governor, and the citizen group which mobilized to bring about the change.  It was a great example of the dynamic relationships between courts, elected officials, and citizens.  "Legislation, litigation, reflection, and repeal" was the title.  The theme was "justice cools the fierce glow of passion by passing it through reflection".  That is what has happened in Nebraska, which will soon merit the illumination of the colosseum in Rome, as did New Jersey in December 2007.
As is now well known we hold 25% of the world's prisoners.  That is the legacy of slavery and racism.  Movements like Right on Crime reflect a national move away from mass incarceration - too little, and late - but important and necessary if we are every to overcome our history.  - gwc

Nebraska Lawmakers Vote To Abolish Death Penalty With Veto-Proof Majority: LINCOLN, Neb. (AP)
by Grant Schulte
— Nebraska lawmakers gave final approval on Wednesday to a bill abolishing the death penalty that would make it the first conservative state to do so since 1973 if the measure becomes law. The vote margin in the unicameral Legislature was more than enough to override a promised veto from Republican Gov. Pete Ricketts, a staunch supporter of capital punishment, who said that it was a "dark day" for public safety. "Nebraska has a chance to step into history — the right side of history — to take a step that will be beneficial toward the advancement of a civilized society," said Sen. Ernie Chambers of Omaha, an independent who has fought for four decades to the end the death penalty. The Nebraska vote marks a shift in the national debate because it was bolstered by conservatives who oppose the death penalty for religious reasons, cast it as a waste of taxpayer money and question whether government can be trusted to manage it. Traditionally, law-and-order conservatives in the United States have stood among the strongest supporters of the ultimate punishment. Nebraska hasn't executed a prisoner since 1997, and some lawmakers have argued that constant legal challenges will prevent the state from doing so again."

'via Blog this'

Tuesday, May 19, 2015

78 settlements Approved as WTC Cleanup Litigation Winds Down

Judge Alvin K. Hellerstein - who has heroically overseen the post 9/11 litigation which Congress assigned to the Southern District of New York  - has approved as fair and reasonable 78 of the last personal injury cases brought by remediation workers.  The claims were against the owners of 100 buildings in lower Manhattan which the workers cleaned- often suffering serious respiratory injuries.
In his March 15, 2015 order and opinion the MDL judge affirmed his assertion of inherent power to oversee and approve mass tort litigation - even absent express authority in Rule or statute.  Such assertions have been criticized by my colleagues Howard Erichson and Benjamin Zipursky as a judicial overreach violating the inherently private nature of tort claims and the right to contract and settle.  Consent Versus Closure, 96 Cornell L. Rev. 265 (January, 2011)

I defended the judge's view - even cutting plaintiffs counsel's fees - as necessary.  The plaintiffs had no real ability to control their own fate - and therefore responsibility devolved to the judge in this matter of great public importance - paid for by public funds.

Judge Hellerstein explains:
 Courts confronted with mass tort cases have an obligation to ensure the fairness of settlements entered into by the parties. See In re World Trade Ctr. Disaster Site Litig., No. 21–mc–100, ECF No. 2091 (S.D.N.Y. June 23, 2010); In re Zyprexa Liability Litig., 424 F.Supp.2d 488, 491–92 (E.D.N.Y.2006). Because of multiple representations by counsel of differently situated plaintiffs, individual settlements can raise issues of conflicts of interest, as between plaintiffs' attorneys and the differently situated plaintiffs those attorneys represent. 
An aggregate settlement may be the result of arm's length negotiations, but the allocations to individuals tend to be directed by counsel without negotiations. Because the Court has inherent authority to supervise such attorneys, see In re World Trade Ctr. Disaster Site Litig., 754 F.3d 114, 125–26 (2d Cir.2014) (“[T]he courts have inherent authority to police the conduct of attorneys as officers of the court.”), it has the duty to ensure that the settlements among plaintiffs are fair. Accordingly, I ruled by Order dated July 25, 2014 that all settlements in this ...docket would be subject to review by this Court for fairness and reasonableness. See Order Regulating Settlement Procedures and Granting, in Part, Motion to Preserve Confidentiality of Settlements, No. 21–mc–102, ECF No. 5340, at 1–2 (S.D.N.Y. July 25, 2014).

In re World Trade Ctr. Lower Manhattan Disaster Site Litig., No. 21 MC 102 AKH, 2015 WL 1262283, at *3 (S.D.N.Y. Mar. 19, 2015)

Monday, May 18, 2015

Senator Warren's Arguments Against TPP Are Starting to Fall Apart

Horizons: Senator Warren's Arguments Against TPP Are Starting to Fall Apart
by Nancy LeTourneau
As we've seen, President Obama is pressing back pretty effectively against the opponents of the Trans Pacific Partnership (TPP) trade agreement. It is clear that his arguments are having an effect when you look at the interview Greg Sargent published today with Senator Elizabeth Warren.

She begins with her ongoing issue about how the text of the agreement is secret. But when Sargent pushes back with the fact that it will be public for 60 days before Congress takes it up, her criticism shifts from being about the agreement itself to the specifics of Trade Promotion Authority (TPA - or so-called "fast-track').

The president has committed only to letting the public see this deal after Congress votes to authorize fast track. At that point it will be impossible for us to amend the agreement or to block any part of it without tanking the whole TPP. The TPP is basically done.
But then she has to back track even further when Sargent points out that the trade promotion authority that will be under consideration in the Senate beginning this week includes the ability for Congress to revoke it if the agreement isn't to their liking. At that point her only argument is that it would take a "majority" (I assume she actually meant "super-majority" - or 60 votes) to revoke it.

I'm really glad Sargent brought this up. It is the first time a provision like that has been included in TPA legislation. In the bill itself, it is referred to as a "procedural disapproval resolution." That process is available to Congress to shut down TPA (and go back to allowing amendments and potentially 60 votes for passage) for several reasons - including if the final TPP deal does not adhere to the "trade negotiating objectives" that are laid out in the bill.

Senator Warren is right that a procedural disapproval resolution would require 60 votes in the Senate whereas the same legislation would allow TPP to pass with 51 votes. What that means is that the scales of the Senate - which have been tilted in favor of bills NOT passing by the overuse of the filibuster - would tilt this time in favor of TPP passing. That's all her complaint boils down to.

Next Sargent asks Sen. Warren about a provision in TPP called Investor-State Dispute Settlement (ISDS) - which Warren has claimed would provide an opportunity to dismantle elements of Dodd-Frank Wall Street reform. He asks her whether or not she can envision an ISDS provision she could support. It's interesting to notice that he has to ask that question three times before he gets an answer. So kudos to Sargent for being persistent. In the end, the issue she identifies is that it is a process that is exclusively available to corporations.

Horizons: Obama and Warren: A Contrast in Analysis

Although I rarely disagree with either Senator -Elizabeth Warren or Bernie Sanders - I am more comfortable with Barack Obama's long sentences, complex analyses, and - often - tentativeness.
Though it is destroying journalism in some respects the world of new media does permit strong new voices to emerge. Nancy LeTourneau and Andrew Sprung are exemplars of that.  Sprung contrasts the two former law professors. Tourneau adds her own spin. - gwc

Horizons: Obama and Warren: A Contrast in Analysis
by Nancy Le Tourneau

Andrew Sprung has written a fascinating article `Obama and Warren - a study in contrasting rhetorical styles'.  He lays out the different ways President Obama and Senator Warren talk about the roots of income inequality. He does so by contrasting a speech the President gave in December 2013 on the topic and one Senator Warren gave recently (which he taped and transcribed). Sprung sees a difference in rhetorical styles.
She sees the forests; he knows the trees -- and perhaps sees more overlapping, interlocking forests. Whatever your preference, the contrast is striking.
I think his comparison shows that the differences between the two of them go a bit deeper than rhetoric and might help us explain why they disagree on things like TPP.
Where Obama acknowledges multiple causes of our current economic malaise, from global competition and technology to racism as well as Republican tax, regulatory and labor policy, Warren hews to a three-part indictment of Reaganomics: deregulation, tax cuts for the wealthy, and consequent defunding of investments in shared prosperity.
The difference rhetorically is that Warren's analysis is simpler and cleaner. Obama's is more complex. What I would add is that Warren breaks down a scenario where it is easier to identify the villains and the victims. While Obama points to Republican policies as a contributor, he includes factors that don't easily point to who the "bad guys" are (i.e., global competition and technology). 

Behind those differences are differing views of how the world works and how you go about analyzing problems. One view is focused on a linear cause/effect analysis. The other focuses on a feedback loop with systems of interconnectivity.

When it comes to something like trade agreements, this helps us understand why Senator Warren would oppose anything that appears to benefit those she has identified as the cause of the problem...the 1%. They are the villains or the "bad guys" who are responsible for income inequality.....

Read more

Sunday, May 17, 2015

How Fox News Changed American Media and Political Dynamics by Bruce Bartlett :: SSRN

Fox News is to American journalism what Pravda was to the Communist party of the USSR - a house organ and a seat of power.  Bruce Bartlett is a leading economist of the Jude Wanniski/Jack Kemp supply-side school.  He has served as a senior adviser since Ronald Reagan was president.  But  he is fed up and alarmed by the Fox News effect. -gwc
How Fox News Changed American Media and Political Dynamics by Bruce Bartlett :: SSRN
by Bruce Bartlett

The creation of Fox News in 1996 was an event of deep, yet unappreciated, political and historical importance. For the first time, there was a news source available virtually everywhere in the United States, 24 hours a day, 7 days a week, with a conservative tilt. Finally, conservatives did not have to seek out bits of news favorable to their point of view in liberal publications or in small magazines and newsletters. Like someone dying of thirst in the desert, conservatives drank heavily from the Fox waters. 
Soon, it became the dominant – and in many cases, virtually the only – major news source for millions of Americans. This has had profound political implications that are only starting to be appreciated. Indeed, it can almost be called self-brainwashing – many conservatives now refuse to even listen to any news or opinion not vetted through Fox, and to believe whatever appears on it as the gospel truth.

Friday, May 15, 2015

Contraception & Honesty | Commonweal Magazine

The moral certainty of the Catholic Church about abortion demands heroism of women and men who must bear responsibility for every child conceived, not just born.  That is more than should be asked,in my opinion.  But the Church's absolutism on artificial contraception demands foolishness and worse.  there are many reasons for the decline of the immigrant-built Catholic church here - but a major factor is the prohibition on contraception which led millions of Catholics to reject the Church's teaching.  One can't reverse that history - but if the Church wants to reduce the bleeding the Bishops should call a halt to the prohibition on artificial contraception. - gwc
Contraception & Honesty | Commonweal Magazine
by Peter Steinfels

Perhaps the most important moment of last October’s Extraordinary Synod on the Family occurred at its very beginning—when Pope Francis insisted that “speaking honestly” was the bishops’ basic responsibility: No topics or viewpoints should be out of bounds. “It is necessary to say all that, in the Lord, one feels the need to say: without polite deference, without hesitation.” 
I doubt that everyone present was able to live up to that plea. For not a few bishops, self-censorship has become second nature, especially when speaking publicly with other bishops, and infinitely so when in the earshot of the pope. 
Fortunately, that was not true in many cases, or the synod would not have made headlines with the several highly controversial topics served up and batted back and forth: reception of Communion by the divorced-and-remarried, cohabitation, even same-sex relationships. But could engrained inhibition have accounted for the glaring gap in the synod’s work? I refer to the apparent lack of attention to the question of contraception. Why did the synod appear to treat so perfunctorily the issue that was, and is, the starting point for the unraveling of Catholic confidence in the church’s sexual ethics and even its credibility about marriage? To which, of course, one could add further questions about this baffling silence: Does it even matter? And if it does matter, are there grounds for hoping that the bishops who will be gathering in Rome next fall to complete the synod’s work can do better?
A lot rests on the answers to these questions. A synod that grabs headlines about remarried or cohabiting or same-sex Catholic couples but says nothing fresh about the spectacularly obvious rift between official teaching and actual behavior in Catholic married life is an invitation to cynicism. It could prove to be a crucial test of Pope Francis's papacy.
[Video: Peter Steinfels explains what prompted him to write "Contraception & Honesty" and talks more about the issues he raises in it.]
The interim report of last October’s synod was startling in its candor about matters commonly considered beyond discussion, yet that controversial report’s extensive description of “socio-cultural context” and “pastoral challenges” regarding the family made no reference whatsoever to contraception. The subject was belatedly and perfunctorily addressed, almost as an afterthought to all the more controversial issues: “Realistic language” and “listening to people,” the synod fathers had reportedly proposed, are needed for “acknowledging the beauty and truth of an unconditional openness to life” and for “an appropriate teaching regarding the natural methods of human reproduction, which allow a couple to live in a harmonious and conscious manner the communication between husband and wife, in all its aspects, along with their responsibility at procreating life. In this regard, we should return to the message of the encyclical Humanae vitae of Pope Paul VI, which highlights the need to respect the dignity of the person in the moral evaluation of the methods of regulating births.”

What Pakistan Knew About the Bin Laden Raid | Foreign Policy

What Pakistan Knew About the Bin Laden Raid
What Pakistan Knew About the Bin Laden Raid | Foreign Policy
by Husain Haqqani (former Pakistani Ambassador to the U.S.)
With a litany of unproved claims, veteran investigative journalist Seymour Hersh has revived discussion about the circumstances in which al Qaeda leader Osama bin Laden was discovered and killed in May 2011 in the Pakistani garrison city of Abbottabad.
Some of Hersh’s assertions in a 10,000-word London Review of Books article border on fantasy. He claims that bin Laden lived under the protection of Pakistan’s Inter-Services Intelligence (ISI), was given up for reward money by one of the agency’s officers, and was eventually eliminated in a U.S. raid covertly backed by Pakistan’s army commander and ISI chief.
According to Hersh, the Americans “blackmailed” Pakistan’s generals into helping them kill bin Laden but then stabbed them in the back for political reasons by denying them any credit for assisting in the raid by Navy SEALs. Instead of blaming ISI for sheltering bin Laden in Pakistan (which Hersh claims it did), he points the finger at the Obama administration for not acknowledging ISI’s role in the U.S. operation that killed the terrorist mastermind.
With the exception of the possibility of a Pakistani “walk in” selling information about bin Laden’s location, the other details of Hersh’s story simply do not add up
Hersh may have his unnamed sources, but he clearly does not know how Pakistan works.
Hersh may have his unnamed sources, but he clearly does not know how Pakistan works. If the ISI had hidden bin Laden for five years, it would not have cooperated in the U.S. operation to kill him without demanding a serious quid pro quo.

Hersh explains the Obama administration’s eagerness to claim sole credit for finding and killing bin Laden in terms of domestic U.S. politics. But he offers no explanation as to why, after covertly helping the Americans, Pakistan’s generals would keep quiet about their role. The veteran reporter alludes to the idea that this might have been because of bin Laden’s popularity among the Pakistani public. But by 2011, bin Laden was no longer that popular — and in any case Pakistan’s military leaders have consistently ignored public opinion to ensure the flow of American aid. Hersh’s suggestion that Pakistan’s generals covertly helped Americans eliminate bin Laden simply to maintain the flow of U.S. dollars to the country — but kept it secret so as not to incur the wrath of the Pakistani street — does not hold water......

Gavel Grab » Louisiana Chief Justice Focuses Attention on Mass Incarceration

Chief Justice Johnson
Gavel Grab » Louisiana Chief Justice Focuses Attention on Mass Incarceration
Louisiana Supreme Court Chief Justice Bernette Johnson is speaking out, and organizing other voices to speak out, about possible reforms to lessen mass incarceration in the state, according to New Orleans Times-Picayune columnist Jarvis DeBerry: “At a summit she convened Monday to discuss Louisiana’s scandalous distinction as the world’s foremost incarcerator of its people, Bernette Johnson, chief justice of the Louisiana Supreme Court, said that she had deliberately chosen the attendees. She wasn’t there to host a debate or to hear from folks who don’t want to move the state in a new direction. ‘We’re not here to convince anybody of the problem,’ she said. She wanted a discussion driven by people who are already convinced.” - 

Thursday, May 14, 2015

Batlan's History of Legal Aid, 1863-1945//Legal History Blog: New Release:

Legal History Blog: New Release: Batlan's History of Legal Aid, 1863-1945
I've been really looking forward to this new release, from Cambridge University Press: Women and Justice for the Poor: A History of Legal Aid, 1863–1945, by former guest blogger Felice Batlan (Illinois Institute of Technology/Chicago-Kent College of Law). Here's the abstract:
This book re-examines fundamental assumptions about the American legal profession and the boundaries between “professional” lawyers, “lay” lawyers, and social workers. Putting legal history and women's history in dialogue, it demonstrates that nineteenth-century women's organizations first offered legal aid to the poor and that middle-class women functioning as lay lawyers, provided such assistance. Felice Batlan illustrates that by the early twentieth century, male lawyers founded their own legal aid societies. These new legal aid lawyers created an imagined history of legal aid and a blueprint for its future in which women played no role and their accomplishments were intentionally omitted. In response, women social workers offered harsh criticisms of legal aid leaders and developed a more robust social work model of legal aid. These different models produced conflicting understandings of expertise, professionalism, the rule of law, and ultimately, the meaning of justice for the poor.

Monday, May 11, 2015

Seymour M. Hersh · The Killing of Osama bin Laden · LRB 21 May 2015

Seymour M. Hersh · The Killing of Osama bin Laden · LRB 21 May 2015

It’s been four years since a group of US Navy Seals assassinated Osama bin Laden in a night raid on a high-walled compound in Abbottabad, Pakistan. The killing was the high point of Obama’s first term, and a major factor in his re-election. The White House still maintains that the mission was an all-American affair, and that the senior generals of Pakistan’s army and Inter-Services Intelligence agency (ISI) were not told of the raid in advance. This is false, as are many other elements of the Obama administration’s account. The White House’s story might have been written by Lewis Carroll: would bin Laden, target of a massive international manhunt, really decide that a resort town forty miles from Islamabad would be the safest place to live and command al-Qaida’s operations? He was hiding in the open. So America said.
The most blatant lie was that Pakistan’s two most senior military leaders – General Ashfaq Parvez Kayani, chief of the army staff, and General Ahmed Shuja Pasha, director general of the ISI – were never informed of the US mission. This remains the White House position despite an array of reports that have raised questions, including one by Carlotta Gall in the New York Times Magazine of 19 March 2014. Gall, who spent 12 years as the Times correspondent in Afghanistan, wrote that she’d been told by a ‘Pakistani official’ that Pasha had known before the raid that bin Laden was in Abbottabad. The story was denied by US and Pakistani officials, and went no further. In his book Pakistan: Before and after Osama (2012), Imtiaz Gul, executive director of the Centre for Research and Security Studies, a think tank in Islamabad, wrote that he’d spoken to four undercover intelligence officers who – reflecting a widely held local view – asserted that the Pakistani military must have had knowledge of the operation. The issue was raised again in February, when a retired general, Asad Durrani, who was head of the ISI in the early 1990s, told an al-Jazeera interviewer that it was ‘quite possible’ that the senior officers of the ISI did not know where bin Laden had been hiding, ‘but it was more probable that they did [know]. And the idea was that, at the right time, his location would be revealed. And the right time would have been when you can get the necessary quid pro quo – if you have someone like Osama bin Laden, you are not going to simply hand him over to the United States.’

David Simon | Zero tolerance is exactly what it sounds like:

David Simon | Zero tolerance is exactly what it sounds like
And a broken-windows policy of policing is exactly what it means:
The property matters. The people can stay broken until hell freezes over.
And the ejection of these ill-bought philosophies of class and racial control from our political mainstream — this is now the real prize, not only in Baltimore, but nationally. Overpolicing and a malignant drug prohibition have systemically repressed and isolated the poor, created an American gulag, and transformed law enforcement into a militarized and brutalizing force utterly disconnected from communities in which thousands are arrested but crime itself — real crime — is scarcely addressed. To be sure, there are a great many savage inequalities in our society — no doubt we could widen this discussion at a dozen points — but now, right now, overpolicing of the poor by a militarized police-state is actually on the table for the first time in decades.
And don’t for a second think that stabbing a fork through the heart of zero tolerance isn’t job one. Nothing else changes, nothing else grows in the no-man’s lands of a war zone, and our inner cities have been transformed into free-fire battlegrounds by this drug war and all of the brutalities and dishonesties done in its name.
Yes, the charges came for the Baltimore officers and the city is now relatively quiet.  But step back for a moment from the immediacy of each individual outrage — from Ferguson, from Staten Island, from North Charleston, from West Baltimore — and realize that while this systemic overlay of oppression will offer a moral exemption or two when the facts or the digital video demands it, charging an officer here or implementing a new training course for police there, the game itself grinds on.  Even as they acknowledge an atrocity or two, the same voices of seeming reason continue to suggest that we needn’t abandon all the good that zero-tolerance enforcement has done for us.
Why look at New York, can’t you?  Safest big city in America.  Zero-tolerance works, goddammit.  It makes us all safer, and our cities governable.  Fix the broken windows, write up all the small infractions, punish every minor offender and soon, you’ll see, the city becomes liveable again.  If you have money, quite liveable indeed.
Meanwhile, in Baltimore — as in every other city that doesn’t happen to be the recapitalized, respeculated, rebuilt center of world finance — zero tolerance has been a disaster.  And the levels of police violence and incarceration that spring from this policing philosophy are proving more lethal to the American spirit and experiment than even race fear and race hatred, as ugly and enduring as that pathology is.  No, this is now about class. This is those who have more using the levers of governance to terrorize those who have less, and doing so by using damn near nothing to keep the poor at the margins of American life.
Four men in four separate cities are dead over a shoplifted cigar, a single sold cigarette, a legal pocket knife and a domestic order for child support.  Do any of us feel appreciably safer for the cost?  Do any of us still want to talk about breaking a few eggs to make that omelet?  Do any of us still want to defend the absurd and brutalizing notion that by using our police officers to stalk our ghettoes heaving criminal charge upon criminal charge at every standing human being, we are fixing, or helping, or even intelligently challenging  the other America to find a different future for itself?
Why yes, yes we do.  Incredibly, we do.

Thursday, May 7, 2015

Clare Conk: 1922-2015 // The Independent - Santa Barbara

Clare Conk
Clare Conk: 1922-2015  The Independent - Santa Barbara
self-taught attorney, social justice advocate
Clare Conk was gifted with a brilliant mind, which she applied in her professional and personal life to seek justice for the benefit of the communities in which she lived and particularly for those who were disadvantaged. Education and learning were lifelong pursuits.
Upon graduating magna cum laude with a BA degree from St. Joseph’s College in Brooklyn, New York, Clare enlisted in the navy in 1943 in the midst of World War II. She graduated first in her class from Midshipmen’s School at Smith College and Communications School at Mt. Holyoke. She was assigned as a Communications Officer at Norfolk Naval Base until her honorable discharge in April 1945, three months after marrying George Conk, who would be her husband for 70 years.
As a young mother, she took a great interest in the schools her children would be attending. She took particular pride in the successful campaign for a new school board slate: Auerbach, Kababian, and Thibodeau. It was 1954, the early years of Middle East conflict after the creation of the Israeli state. Clare was proud that they had found a solution in Levittown by electing an Arab, a Christian, and a Jew to the school board.
In 1955, shortly after the birth of her fifth child, Clare received her master’s degree in education. Once all of her children were in school, she began a 15-year career as a high school English teacher. For decades afterward, her former students would tell her she was the best teacher they ever had.
In 1973, Clare and George moved the family from Connecticut to Santa Barbara, where she began volunteering at Santa Barbara’s Legal Defense Center, which provided legal counsel for low-income clients. Clare took to the law — researching legal issues and advocating for people who were being treated unjustly. In 1977, Clare was a law clerk, assisting the center’s director, Willard Hastings. Without benefit of a law degree, she prepared the brief and made the oral argument for a case argued before a state Court of Appeal.
Clare represented Cathy Gunn, who challenged the California unemployment insurance regulation that she disclose her pregnancy and submit medical proof of how long she would remain available to work as a condition of eligibility for unemployment benefits. Gunn refused, citing her privacy rights. Men had to make no such showing. While still an aspiring lawyer, Clare briefed the case all the way up to the 2nd District Court of Appeal. The court unanimously upheld Gunn’s challenge, saying, “Constitutionally the department could require from or through her initially no more than her doctor’s certificate of good health” without compelling her to disclose her pregnancy. The court thus established California women’s rights to unemployment insurance during pregnancy. The court awarded counsel fees to the Legal Defense Center, describing it as a “private attorney general.” Because she was not yet a lawyer, Clare was not named as legal counsel in the court documents, although Supreme Court Chief Justice Rose Bird would later advocate she be recognized as “in counsel.”
Motivated by her legal success and disappointed at not being recognized as legal counsel for her role in the Gunn decision, Clare decided to become an attorney. She went to Ventura Law School for one semester, dropped out, and studied on her own. She maintained contact with the members of her study group but read and studied on her own. In 1981, at the age of 59, she took and passed the California bar exam, on her first attempt, becoming the first person in 15 years to pass the bar without going to law school. It would be almost 20 years before it was accomplished again.
Clare and her law partner Richard Frishman were part of the legal defense team for the Abalone Alliance when protestors blockaded Diablo Canyon nuclear power plant for nearly two weeks in 1981. More than 1,900 were arrested, and 500 pleaded not guilty. Clare made a defense argument on their behalf on grounds of “justification by necessity.”
Once she had her license to practice law, Clare was asked to serve on two boards of directors: Santa Barbara Community Housing Corporation (SBCHC), which develops and owns affordable housing for low-income residents, and California Rural Legal Assistance (CRLA), which represents farmworkers in employment disputes and advocates for fair housing for low-income individuals in California’s rural communities.
In 2010, SBCHC honored Clare’s 25 years of service to the organization by rededicating its senior housing community on Castillo Street as Clare Conk Castillo Homes. Following her death,CRLA’s executive director, José Padilla, recognizing her 25 years of service to that organization, said, “She embodied the heart ofCRLA with her unwavering spirit of social justice service, in her case, as a representative of the Legal Defense Center and the Santa Barbara Community Housing Corporation. Clare had the heart of a teacher and activist and on the Board always acted as a clear voice for ‘the most exploited communities of our society,’ as the CRLA Mission demands.”