Arbitration Everywhere - Stacking the Deck // NYTimes

As I prepare to teach American tort law in Beijing I look wistfully at my explanations of the roles of judge and jury as characteristic of our system of justice.  Industry has been very successful at reducing jury trials.  Fewer civil cases than ever are tried.  But now with the help of the United States Supreme Court they have taken a giant step.  Through the thin consent of the shrink-wrap, now the quick click contract of adhesion they have removed themselves from courtroom challenges by disappointed customers and employees. - gwc

Arbitration Everywhere, Stacking the Deck of Justice - The New York Times

By JESSICA SILVER-GREENBERG and ROBERT GEBELOFFOCT. 31, 2015


On Page 5 of a credit card contract used by American Express, beneath an explainer on interest rates and late fees, past the details about annual membership, is a clause that most customers probably miss. If cardholders have a problem with their account, American Express explains, the company “may elect to resolve any claim by individual arbitration.”

Those nine words are at the center of a far-reaching power play orchestrated by American corporations, an investigation by The New York Times has found.

By inserting individual arbitration clauses into a soaring number of consumer and employment contracts, companies like American Express devised a way to circumvent the courts and bar people from joining together in class-action lawsuits, realistically the only tool citizens have to fight illegal or deceitful business practices.

ConocoPhillips ordered to pay 1.7m yuan over damages in oil spill |Companies |chinadaily.com.cn

ConocoPhillips ordered to pay 1.7m yuan over damages in oil spill |<!-- ab 22327704 -->Companies<!-- ae 22327704 --> |chinadaily.com.cn

BEIJING - (Xinhua) A court in North China's Tianjin municipality ordered American oil giant ConocoPhillips (China) to pay 1.68 million yuan ($265,000) to 21 fishermen on Friday, who claimed their fishing interests and livelihood were severely damaged by the 2011 Bohai Bay oil spill.

The verdict temporarily ends nearly four years of haggling between the fishermen and ConocoPhillips, who, along with Chinese State-owned oil giant China National Offshore Oil Corp (CNOOC), were held responsible for the contamination of more than 6,200 square km of water in the Bohai Bay after a large spill in the area's oilfields.

The Tianjin Maritime Court exempted CNOOC's liability to compensate the fishermen, saying CNOOC was not the operator of the oilfield and did not control the source of the spill.

In 2012, Chinese authorities reached a settlement with the two companies granting affected fishermen 1 billion yuan in total. The State Oceanic Administration also levied a 1.68 billion yuan penalty for the damage caused to the maritime eco-system.

Most of the fishermen accepted the compensation. The 21 fishermen in the most recent case did not join the settlement process and filed their litigation on Dec 30, 2011. Last December, the court conducted a two-day hearing of the case but did not deliver a verdict. ConocoPhillips did not say whether they will appeal the most recent verdict.

This is not the only litigation the American oil giant is facing.

A landmark lawsuit was filed against the two companies in a maritime court in Qingdao in July. Details of the case have yet to be released, but it is the first case brought by a social organization over maritime pollution since China changed its law to allow registered non-profit organizations who have been dealing with environmental issues for at least five years to sue heavy polluters.

China Court Rules in favor of NGO on Environmental Claim// JURIST

JURIST - China court finds in favor of NGOs under new environmental law

by Ashley Hogan

[JURIST] The Nanping Municipal Intermediate People's Court of Fujian found in favor [Xinhua report] of two environmental groups on Thursday under a new environmental law. The court ordered defendants to restore destroyed vegetation and pay compensation for the damage that resulted from of an illegal mining expansion. This was the first environmental protection case decided since the Environmental Protection Law[text, PDF; LOC backgrounder] took effect on January 1. The law allows NGOs to directly sue polluters in the public interest, and the victory by Friends of Nature and Fujian Green Home[advocacy websites] suggests that other environmental groups will have more power to combat pollution under the new law.

According to many experts, climate change [JURIST backgrounder] as a result of global greenhouse gas emissions is one of the most pressing and controversial environmental issues [JURIST report] facing the international community today. China has long come under international criticism for lax environmental laws and enforcement, but has taken more proactive steps in recent years. In July China's Qingdao Maritime Court ruled [JURIST report] that a lawsuit against ConocoPhillips China and China National Offshore Oil relating to a 2011 oil spill could proceed under the new environmental law. Also in July China set a 60 percent per capita carbon dioxide emissions reduction goal [JURIST report] for 2030. The announcement followed a November agreement with the US to cut its greenhouse gas emissions [JURIST report].

How 4 Federal Lawyers Paved the Way to Kill Osama bin Laden - The New York Times

How 4 Federal Lawyers Paved the Way to Kill Osama bin Laden - The New York Times
by Charlie Savage

WASHINGTON — Weeks before President Obama ordered the raid on Osama bin Laden’s compound in May 2011, four administration lawyers hammered out rationales intended to overcome any legal obstacles — and made it all but inevitable that Navy SEALs would kill the fugitive Qaeda leader, not capture him.
Stretching sparse precedents, the lawyers worked in intense secrecy. Fearing leaks, the White House would not let them consult aides or even the administration’s top lawyer, Attorney General Eric H. Holder Jr. They did their own research, wrote memos on highly secure laptops and traded drafts hand-delivered by trusted couriers.
***
The legal analysis offered the administration wide flexibility to send ground forces onto Pakistani soil without the country’s consent, to explicitly authorize a lethal mission, to delay telling Congress until afterward, and to bury a wartime enemy at sea. By the end, one official said, the lawyers concluded that there was “clear and ample authority for the use of lethal force under U.S. and international law.”

A Party’s Strategy to Ignore Poverty - The New York Times

A seven year old scavenger in Arizona
A Party’s Strategy to Ignore Poverty - The New York Times
by Eduardo Porter
Arizona, where I was born, in July became the first state to cut poor families’ access to welfare assistance to a maximum of 12 months over a lifetime. That’s a fifth of the time allowed under federal law, and means that 5,000 more people will lose their benefits by next June.
This is only the latest tightening of the screws in Arizona. Last year, about 29,000 poor families received benefits under the Temporary Assistance for Needy Families program, 16,000 fewer than in 2005. In 2009, in the middle of the worst economic downturn since the Depression of the 1930s, benefits were cut by 20 percent.

And if Paul Ryan, the Republican lawmaker from Wisconsin who is expected to become speaker of the House, has his way, poor people in many other states can expect similar treatment in the years ahead.

Read more

Yitzhak Rabin - in memoriam

Twenty years ago Yitzhak Rabin was murdered - two years after signing the Oslo accords - which held out a road to  peace not taken.  Historical`what ifs' are always of uncertain reliability, especially if you shy away from great man theories of history and lean toward structural explanations.  And yet....  I wrote this editorial which was published shortly after the Prime Minister's assassination by New Jersey Lawyer - the State Bar Association weekly on who Editorial Board I served.  - gwc

Yitzhak Rabin

Yigal Amir, the assassin of Yitzhak Rabin, was a law student.  That he claimed the law of the torah and the bible as authority shows how little he understood about the law.
We in the United States have seen other assassins, acting under vague claims of right, strike down our leaders.  Most recently ordinary citizens working for the government in Oklahoma City and at work in New York City's World Trade Center have been viciously assaulted by terrorists.
The assassins see the law only as an instrument of domination.  But the sight of Yasir Arafat, making a shiva call at the home of Leah Rabin, reminds us that the law's heart is not domination but agreement.  Yitzhak Rabin wanted to reach agreement more than he wanted to denounce his enemy.  He learned to seize upon what was positive in the adversary's initiative rather than focus on its shortcomings.  
 Agreement is the heart of peace, of law, and of democracy.  It often requires compromise of what is dear.  The courage to compromise is rarer and harder to muster than is exultation at the storm that destroys our enemies' house.  The wisdom to reach agreement was bought with all that Yitzhak Rabin had - his life.  This week, at Thanksgiving, we should recall the withered fields and the seasons of war that preceded the season of peace and accord that Yitzhak Rabin's peacemaking has made possible.

Clinton: I really loved Rabin, and he would have reached a final peace deal | The Times of Israel

Clinton: I really loved Rabin, and he would have reached a final peace deal | The Times of Israel

Had he lived, Yitzhak Rabin would have been able to reach a peace deal within three years, because “the Palestinians trusted him,” former president Bill Clinton said in an interview aired Monday night. “They were absolutely convinced that he… would do what he promised to do.”

Rabin, said Clinton, had a sort of “psychological hold on the Palestinians,” and particularly on Yasser Arafat.” Rabin “was very tough,” said Clinton, and “in a funny way that’s the reason the Palestinians trusted him as well as the Israelis: Arafat was almost a little intimated by him because of his record as a military man and as a politician.”

Read more

Obamacare Silver Policies up 6.3% Center for Medicare ServicesReports

CMS Releases Snapshot Of 2016 Federally Facilitated Marketplace Premiums 
 by Prof. Tim Jost
Implementing Health Reform. On October 26, 2015, the Centers for Medicare and Medicaid Services (CMS) released its first snapshot of 2016 federally facilitated marketplace (FFM) plan premiums. CMS announced that premiums are up for benchmark second-lowest cost silver plans an average of 6.3 percent before the application of premium tax credits in thirty of the largest cities covered by the FFM, where 60 percent of marketplace enrollees live.

Overall, in 37 states covered by the FFM benchmark premiums are up 7.5 percent. (Hawaii, which switched to the FFM this year, was not included.) Average premium increases are higher than they were for 2015 (when benchmark second-lowest cost silver plans increased only 2 percent) but are much lower than individual market premium increases in the three years immediately preceding the adoption of the Affordable Care Act (ACA), which averaged over 10 percent per year.

For most consumers cost increases for 2016 will be in the single digits. But premium increases—and decreases—vary considerably from market to market. In Oklahoma City second-lowest cost silver benchmark plan premiums increased 35.1 percent, in Nashville benchmark premiums increased 22 percent, and in Charlotte, 21.7 percent. In Cleveland, Ohio, on the other hand, benchmark premiums decreased on average 6.3 percent, while in Indianapolis they dropped 11.8 percent. Statewide the greatest increases were in Montana, where benchmark premiums went up 34.5 percent and Oklahoma where they went up 34.7 percent, but in Mississippi benchmark premiums dropped 8.2 percent and in Indiana 12.6 percent.

Most markets continue to be competitive. For 2016, consumers in two thirds of counties will have three or more insurers to choose from.

Read more

Mark Zuckerberg talks about his "mission" at Tsinghua University - in Chinese

最近 在 清华 大学 Facebook  的 创办人 Mark Zuckerberg  解释 他 的 使命 。 不 只 连 朋友 但  是 改变世界。  他们的目标是帮连全 世界 的 人 讨论 重要 的 问题 。Mark Zuckerberg - the hyper successful Harvard College dropout - has been learning Chinese.  His American born wife Dr. Priscilla Chan has worked at a hospital in Beijing.   Here he speaks about his "mission" to link billions of people all over the world, including in Africa where the internet's reach is still limited.  He is a member of an advisory board on science and technology at Beijing's Tsinghua University, a leading school and research center.

Rhetoric: Aristotle, RBG, and the art of persuasion

Aristotle (384- 322 B.C.E.)

​

Rhetoric was long a required course at Fordham College as at other colleges that followed the classical education model. The class centered - back in the day - on Aristotle's classic  Rhetoric.  It is a highly accessible treatise well worth reading.  The Philosopher, as Aquinas called him, emphasizes the  discipline of facts and the need to look at both sides of a question:

[W]e must be able to employ persuasion, just as strict reasoning can be employed, on opposite sides of a question, not in order that we may in practice employ it in both ways (for we must not make people believe what is wrong), but in order that we may see clearly what the facts are, and that, if another man argues unfairly, we on our part may be able to confute him. No other of the arts draws opposite conclusions: dialectic and rhetoric alone do this. Both these arts draw opposite conclusions impartially. Nevertheless, the underlying facts do not lend themselves equally well to the contrary views. No; things that are true and things that are better are, by their nature, practically always easier to prove and easier to believe in.

Though  we don't offer a course titled Rhetoric  we do try to teach mastery of the art  by example and through the many contemporary efforts on which we draw in classes .  In my first year of law school my civil procedure teacher exemplified the virtues Aristotle extolled which she has followed throughout her long career.  In today's Times in an op-ed titled Justice Ginsburg's Cautious Radicalism Irin Carmon (co-author of Notorious RBG) presents then Professor, now Justice Ruth Bader Ginsburg's approach:

Her vision for the world is transformative, but instead of broad sweeps, she has urged slow, incremental steps to that change. Rather than capitulation, this is about playing a long game. These principles sustained her through decades of experiencing discrimination, and formed her legal strategy. “She insisted that we attempt to develop the law one step at a time,” a fellow A.C.L.U. lawyer, Kathleen Peratis, testified at Justice Ginsburg’s confirmation hearings in 1993. “ ‘Present the court with the next logical step,’ she urged us, and then the next and then the next. ‘Don’t ask them to go too far too fast, or you’ll lose what you might have won.’ She often said, ‘It’s not time for that case.’ We usually followed her advice, and when we didn’t, we invariably lost.”

Perhaps the most commented upon contemporary contrast to Ginsburg has been the rhetoric of her fellow Associate Justice Antonin Scalia.  Southwestern Law School Professor Michael Frost focused on his dissent from Ginsburg's majority opinion in the VMI case which struck the male only admissions policy of the state military college.  Frost, in his 2002 article Justice Scalia's Greco Roman Rhetoric   warned that Scalia ignored Aristotle's principles and undercut his own effectiveness.  Some have even warned that he reserves his harshest rhetoric for female adversaries.   

 The lawyer who recognizes and presents the nuance of argument is helpful to and appreciated by judges, as the late Third Circuit Judge Ruggero Aldisert wrote, accepting the Golden Pen Award of the Legal Writing Institute:

[L]egal writing is not designed to describe something like a journalist, to report what is true or false. It is not what Austin describes as “to constate” or to give information on an action that has taken place. Instead it is designed to convince, to deter, or to persuade. And all this means is to perform, and thus produce future action.When you are a judge, or are a law clerk writing for a judge,every document you write is a “performative utterance.” It is writing that concludes with a definite performance, such as “Motion denied” or “Judgment for plaintiff” or “Affirmed” or “Reversed.” Thus, when I say that as a judge I am indebted to you, it is because to the extent you produce lawyers with better writing skills, the better we judges can properly understand the nuances of arguments presented. And the higher degree of understanding we acquire, the higher a quality of fairness and justice ensues."

In sum I would say - Preach not to the choir but to those beyond the walls.  - gwc

Pope Francis addresses Synod of Bishops at conclusion Vatican Radio

Every legal system struggles with a basic problem: melding law and justice; command and inspiration.  Pope Francis recognizes such issues. - gwc
Audio commentary by Fr. Russell Pollitt, S.J.

Pope Francis addresses Synod of Bishops at conclusion Vatican Radio

***It was also about laying bare the closed hearts which frequently hide even behind the Church’s teachings or good intentions, in order to sit in the chair of Moses and judge, sometimes with superiority and superficiality, difficult cases and wounded families.

***The Synod experience also made us better realize that the true defenders of doctrine are not those who uphold its letter, but its spirit; not ideas but people; not formulae but the gratuitousness of God’s love and forgiveness. This is in no way to detract from the importance of formulae, laws and divine commandments, but rather to exalt the greatness of the true God, who does not treat us according to our merits or even according to our works but solely according to the boundless generosity of his Mercy (cf. Rom 3:21-30; Ps 129; Lk 11:37-54). It does have to do with overcoming the recurring temptations of the elder brother (cf. Lk 15:25-32) and the jealous labourers (cf. Mt 20:1-16). Indeed, it means upholding all the more the laws and commandments which were made for man and not vice versa (cf. Mk 2:27).

In this sense, the necessary human repentance, works and efforts take on a deeper meaning, not as the price of that salvation freely won for us by Christ on the cross, but as a response to the One who loved us first and saved us at the cost of his innocent blood, while we were still sinners (cf. Rom 5:6).

Low award, low fee? TortsProf Blog

TortsProf Blog

Thomas Eaton and Mike Wells have posted to SSRN Attorney's Fees, Nominal Damages, and Section 1983 Litigation.  The abstract provides:

Can plaintiffs recover attorney’s fees under 42 U.S.C. § 1988 when they establish constitutional violations but recover only nominal damages or low compensatory damages? Some federal appellate courts have concluded that no fee, or a severely reduced fee, should be awarded in such circumstances. This position, which we call the “low award, low fee” approach, rests primarily on the Supreme Court’s 1992 opinion in Farrar v. Hobby.

We argue that a “low award, low fee” approach is misguided for two main reasons. First, the majority opinion in Farrar is fragmented and the factual record is opaque regarding what and how the plaintiff’s constitutional rights were violated. These complexities render Farrar a poor case upon which to frame a rule regarding the relationship between damage awards and the proper calculation of attorney’s fees. Second, the “low award, low fee” approach is inconsistent with congressional intent. When Congress enacted § 1988 it emphasized the public benefit of vindicating constitutional rights and deterring constitutional violations. No less important, it recognized that the harms caused by constitutional wrongs often are not easily measured in terms of traditional monetary remedies – a circumstance that would discourage attorneys from taking on the representation of plaintiffs in this important set of cases. The low award/low fee approach contravenes these purposes because it effectively discourages the bringing of large numbers of highly meritorious cases involving the abridgement of constitutional rights. Indeed, the effect of this approach is perverse, because it blocks the recovery of meaningful attorney’s fees in the very set of low damages-serious constitutional wrong cases in which the need to incentivize the provision of legal services is most pressing.

Hillary Clinton Stems GOP Benghazi Attackers // Josh Marshall // Talking Points Memo

It is not easy to withstand 11 hours of hostile interrogation. I've been examined for a few hours - with far less at stake - and found myself being too combative.

It is also not easy to sustain mastery of details three, four or more years ago. Hillary Clinton did that yesterday - and no one laid a glove on her about any substantial matter. [Don't tell me the email issue is substantial.]

Marco Rubio - the likely GOP nominee - barely got through a set speech in his counter State of the Union. 
Most votes are tribal. The Democrats will never get the Second Amendmentistas, or the immigrant haters, or the racists. But for those who are reachable Hillary Clinton's steely performance yesterday shows how formidable she is. - gwc
Long Twilight Struggle
by Josh Marshall

I think it wasn't just a no news event and thus by definition good news for Hillary, as Byron put it. I think it was a good deal more.

I don't know how Clinton would be as a public President, with all the mix of engagement, charisma and circumspection that involves. But showing how she might be as a private president, a Situation Room president, I think it was perhaps a transformative performance. When I watched my thought was, Wow, she'd be rock solid. Granular and detailed is seldom spell-binding. But over the course of the endless testimony, anyone who had the slightest sense that Clinton had been some sort of figurehead Secretary of State who left the key work to subordinates would have been thoroughly disabused of that notion.

Clinton's time under questioning sent a number of messages. One was simply the scope of her knowledge and experience that made her questioners look increasingly insipid and small. But there was also a simple toughness and resilience under pressure. She knows her stuff and she's a pro. You could not watch that testimony and not come away with that conclusion. This engagement gave her a live telecast opportunity to demonstrate that fact, which is almost invaluable. It is very difficult to imagine any of the Republican presidential candidates - even the ones serving in the Senate - able to roll with that kind of questioning or show the range of knowledge and clarity that was required to do so. It is difficult to express the difficulty of being questioned for almost half a day and not slipping even once, not even the kind of negligible slip that only has any impact or resonance when repeated and distorted in endless repetition on Fox News.

Seriously, can you imagine Marco Rubio in the same chair under the same sort of questioning? Not to mention Donald Trump or - God forbid - the increasingly Chauncey Gardner-esque Ben Carson?

Forgotten Archipelagoes: Chinese Communist Party Standards on Integrity and Self-Restraint - comment.

Updates: Flora Sapio has comments and links on the newly released CCP Regulations on Disciplinary Punishment.
And further updates HERE

Debate about China's Communist Party and the rule of law is sharp.  Prof. Randall Peerenboom emphasizes in a new paper the steady progress in creating an ordinary order.  Call it rule of law light.  Prof. Eva Pils sharply criticizes him, saying he does not recognize that the deeply un-democratic Communist Part still operates outside the law. Peerenboom rebuts and Pils sur-rebuts.
Meanwhile the Committee to Support Chinese Lawyers highlights instances of Chinese lawyers facing detention and arrests.
Flora Sapio details the current state of the law governing the Chinese CP. - gwc
Forgotten Archipelagoes: Chinese Communist Party Standards on Integrity and Self-Restraint - comment.
by Flora Sapio
The Chinese Communist Party Standards on Integrity and Self Restraint (the Standards - here, in Chinese) were adopted by the CCP Central Committee on October 12, together with the CCP Regulations on Disciplinary Punishments (here, in Chinese). This post offers a short and very simple commentary on the Standards.

Together with the Regulations on Disciplinary Punishment, the Standards are one of the most important pieces of Party legislation. The Regulations on Disciplinary Punishment define certain conducts as violations of Party discipline and specify the punishment associated with each one of them. The Standards, as they were enacted in 1997 (here - Chinese) and amended in February 2010 (here - in Chinese), aimed at "regulating the honest performance of official duties" (规范廉政从政行为).


As I have explained elsewhere, the Standards did more than specify a set of principles of conducts Party cadres should have followed: they proscribed a broad range of behaviors. Most of the behaviors proscribed by the Standards however duplicated conducts defined as criminal offenses by the Criminal Law of the PRC. The overlaps between Party legislation and the Criminal Law were among the factors that allowed a considerable discretion in the punishment of erring cadres. Overlaps were not entirely inconsistent with the rules on inner-Party law making, as these rules were effective until recently. Between 1990 and 2012, intra-Party rule making was regulated by the CCP Regulations on the procedure to enact intra-Party rules (for trial implementation). This document did not pose any requirements about consistency between Party rules and regulations and the state law.

130 Top Police Chiefs and Prosecutors Urge End to Mass Incarceration | Brennan Center for Justice

130 Top Police Chiefs and Prosecutors Urge End to Mass Incarceration | Brennan Center for Justice

Today 130 police chiefs, sheriffs, prosecutors, and attorneys general from all 50 states join together as a surprising new voice calling for the end to unnecessary incarceration in the U.S. — while maintaining public safety.

The new group, Law Enforcement Leaders to Reduce Crime and Incarceration, marks an unprecedented partnership among the nation’s top law enforcement leaders to push reforms to reduce incarceration and strengthen public safety.

At a press conference today in Washington, D.C., police chiefs from six of the largest U.S. cities, including New York, Los Angeles, Chicago, Washington, D.C., Houston, and New Orleans, will announce their policy agenda, featured in a Statement of Principles.

President Barack Obama will host members of the group at the White House tomorrow, where group leaders will speak on why they believe reducing imprisonment while protecting public safety is a vital national goal.

Speakers at the press conference today include:

• Charlie Beck, Chief, Los Angeles Police Department
• William Bratton, Commissioner, New York City Police Department
• Benjamin David, District Attorney, New Hanover County & Pender County, North Carolina
• Cathy Lanier, Chief, Washington D.C. Metropolitan Police Department
• Garry McCarthy, Superintendent, Chicago Police Department; co-chair, Law Enforcement Leaders
• Charles McClelland, Chief, Houston Police Department
• Ronal Serpas, former Superintendent, New Orleans Police Department; co-chair, Law Enforcement Leaders

W.W.F.S.S.? Some thoughts on Ross Douthat and doctrine | Daily Theology

W.W.F.S.S.? Some thoughts on Ross Douthat and doctrine | Daily Theology
by Brian Flanagan

What would Frank Sullivan Say?

So the interwebs have been abuzz in the past 48 hours regarding New York Times columnist Ross Douthat’s op-ed on Sunday entitled “The Plot to Change Catholicism.”Commentators have questioned Douthat’s faith, frankly (and unfairly) blamed some of his ideas on the fact that he is a convert to the Catholic Church, and compared him to Dan Brown. That’s a lot.

And there’s a lot to say about what I might consider the errors in the column – the importation of a U.S.-style conspiracy theory into the reading of Vatican politics, an analysis of the current synod far too based on conservative hearsay than on knowledge of the actual conversations, an arrogant clarity with regard to theological truth that even the most confident apologetics teacher might shy away from.

But I want to speak in a more limited fashion about the term “doctrine” as Douthat uses it, and how Douthat’s usage reflects not just his own biases and preferences, but a longstanding and dangerous trend in popular Catholic ecclesiology fostered, knowingly in some ways, by decisions made in the previous two pontificates. In all of this, I’m not coming up with anything original, but rather channeling a theologian little-known outside of theological circles, but who is “he than whom there is no whomer” in Catholic ecclesiology and particularly the question of magisterial authority in the Catholic Church: Fr. Francis A. Sullivan, S.J., retired professor of theology at the Gregorian University in Rome and Boston College. (Full disclosure: I was also privileged to be a student of Fr. Sullivan during my doctoral work.)

I tweeted after Douthat’s column that someone ought to send him a copy of Sullivan’s classic work Magisterium: Teaching Authority in the Catholic Church. In that book, Sullivan carefully delineates the ways in which the Catholic Church has understood episcopal and papal authoritative teaching over the centuries, and a major point of the work (and a later, more practical work, Creative Fidelity: Weighing and Interpreting the Documents of the Magisterium) is to carefully outline the different ways in which authoritative teaching occurs in the Catholic Church, as determined by the office of the one teaching, the manner in which it something is taught, and the response to the doctrine expected of the Catholic faithful (e.g., “divine faith”, “religious assent,” etc.). This was all “much easier” (scare quotes intended) in the days when Catholic systematic theological texts included indications of a particular statement’s weight by means of the “theological notes,” that is, indications of the degree of assent expected of the teaching, as well as the censure attached to its denial in some cases. These ranged from “dogma” to be held “with divine faith,” the denial of which was formally heresy, all the way down through “theologically certain,” “safe,” “common,” “probable,” and, paired with such censures as “erroneous,” “temerarious,” and, my favorite, “offensive to pious ears.”

We tend to avoid such finely tuned distinctions in contemporary theology, not out of a lack of respect for truth, but out of humility in front of our task, and concern about the modernist, propositionalist attempt to systematize the world of the faith into an airtight box. But Sullivan’s work maintains the importance of distinguishing what is taught, by whom, and with what intended response, not out of a relativist desire to undermine the truth, but in order to defend the truth through clarity regarding how the magisterium of the church teaches it. Pope Francis’s homilies at the Casa Santa Marta are not infallible teaching; nor are encyclical letters to be dismissed as equivalent to off-the-cuff remarks in an airplane press conference.

It used to be the case that the collapse of these distinctions into a single category called “doctrine” or “church teaching,” or the extension of a penumbra of infallibility to every papal statement was the calumny of Protestant critics of the Catholic Church; with Douthat’s column, we see just how pervasive is a kind of magisterial fundamentalism in which the faith is always clear and in which the quality of irreformability attaches to each statement in the Catechism of the Catholic Church regardless of origin, context, or teaching authority. Douthat reflects the end product of a long process in which the careful distinctions of centuries past have run together into a single category called “doctrine” or “church teaching.” Again, it was Fr. Sullivan who first warned of this in his critiques of the Catechism’s leveling effect, and the way in which the decontextualization of Catholic teaching from its sources in the Catechism raised the danger of all magisterial teaching being equally important, equally authoritative, equally irreformable – and, dangerously, equally open to dismissal or unbelief if any one teaching no longer seemed probable, rational, or credible in the fullest sense.

Why It's Time To Reassess Walter Mondale's Place In History

Walter Mondale was a Senate leader on the 1965 Voting Rights Act, the 1968 Fair Housing Act, and the Foreign Intelligence Surveillance Act which limited such power.  As Democratic nominee in 1984 he appointed Geraldine Ferraro to chair the disputacious platform committee (on which  I served as a Mondale campaigner), and then picked the Fordham Law grad as his vice presidential candidate.  I've long been a Mondale fan. - gwc
Why It's Time To Reassess Walter Mondale's Place In History
by Ben Railton (Fitchburg State University)

Even for those with more than a passing interest in American political history, the name Walter Mondale usually symbolizes one and only one thing: one of the worst electoral defeats in the history of the presidency. Running against popular incumbent Ronald Reagan in the 1984 election, Mondale won only the District of Columbia and his home state of Minnesota (and that by fewer than 5,000 votes), garnering a meager 13 electoral votes to Reagan’s 525. It was the worst defeat for any Democratic presidential candidate in American history, a landslide loss so striking that it has understandably become synonymous with Mondale’s name in our political narratives.

Yet as the University of Minnesota’s Humphrey School of Public Affairs hosts two high-profile Washington, D.C. events Tuesday to honor Mondale’s “life and legacy”— speakers will include former President Jimmy Carter (for whom Mondale served as vice president) and current Vice President Joe Biden, among many other luminaries—it’s time we reassess Mondale’s place in our political and social histories. And in so doing, we find that he both contributed immeasurably to the late 20th century and helped pave the way for the 21st.

Remember - I am the Pope! //Vatican Radio

Pope Francis marks 50th anniversary of Synod's institution Vatican Radio

There is a rebellion underway against Pope Francis. The Jesuit is too liberal for conservatives like New York Archbishop Timothy Dolan who warned in a recent letter that "liberal Protestant" churches have suffered great losses by trying to cater to their parishioners.  Conservatives like the New York Times columnist Ross Douthat warn that the Pope is a squishy old liberal who is working to undermine the Church's conservative young guns, among whom he places himself. 
Jesus is reported to have said that Peter is the rock upon which the Church is to be built.  Francis reminded everyone this past week that he, not Timothy Dolan, is the Pope:

“[T]he bishops act as true stewards, interpreters and witnesses of the faith of the whole Church, which [they] must be able carefully to distinguish from often shifting public opinion.” In all this, the Successor to Peter is fundamental. “Finally,” explained Pope Francis, “the synodal process culminates in listening to the Bishop of Rome, called upon to speak authoritatively [It. pronunciare] as ‘Shepherd and Teacher of all Christians’: not on the basis of his personal beliefs, but as the supreme witness of the Faith of the whole Church, the guarantor of the Church’s conformity with and obedience to the will of God, to the Gospel of Christ and the Tradition of the Church.”
The Holy Father went on to explain that the Synod always always acts cum Petro et sub Petro – with Peter and under Peter – a fact that does not constitute a restriction of freedom, but a guarantee of unity. “In fact,” he said, “the Pope is, by the will of the Lord, ‘the perpetual and visible principle and foundation of unity of both the bishops and of the faithful’.”

- gwc

Catholic Lawyers Call for "Constitutional Resistance to Obergefell v. Hodges" | American Principles Project

Princeton's Robert George - the conservative Catholic tribune - has enlisted others in a call for "constitutional resistance" to Obergefell v. Hodges, which declared that same sex couples dignity rights bar states from denying them the right to marry.  He invokes in Lincoln's First Inaugural and its famous call to limit the impact of Dred Scott v.Sanford:

"the candid citizen must confess that if the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal."

George's call to `resist'  the high court's authority has been welcomed by conservatives like Kevin Walsh.   On the other side of the spectrum Lyle Denniston has warned that  this is a call to defy the law.    But it seems to me that Howard Wasserman is right that George et al. are within the bounds of lawerly advocacy.
The call for resistance is a provocative headline.  But it is revealed as hyperbole when the statement is parsed.  It seems to me to be in fact little different from the kind of rhetoric heard in calls to amend the Constitution to reverse Citizens United.  - gwc
Statement Calling for Constitutional Resistance to Obergefell v. Hodges  | American Principles Project

We are scholars and informed citizens deeply concerned by the edict of the Supreme Court of the United States in Obergefell v. Hodges wherein the Court decreed, by the narrowest of margins, that every state in the country must redefine marriage to include same-sex relationships.   

The Court’s majority opinion eschewed reliance on the text, logic, structure, or original understanding of the Constitution, as well as the Court’s own interpretative doctrines and precedents, and supplied no compelling reasoning to show why it is unjustified for the laws of the states to sustain marriage as it has been understood for millennia as the union of husband and wife.

The opinion for the Court substituted for traditional—and sound—methods of constitutional interpretation a new and ill-defined jurisprudence of identity—one that abused the moral concept of human dignity.

*****

Obergefell is wanting in all these claims to the public confidence. It cannot therefore be taken to have settled the law of the United States.   

Therefore: 

We stand with James Madison and Abraham Lincoln in recognizing that the Constitution is not whatever a majority of Supreme Court justices say it is. 

We remind all officeholders in the United States that they are pledged to uphold the Constitution of the United States, not the will of five members of the Supreme Court.  

We call on all federal and state officeholders: 

To refuse to accept Obergefell as binding precedent for all but the specific plaintiffs in that case.

To recognize the authority of states to define marriage, and the right of federal and state officeholders to act in accordance with those definitions.

To pledge full and mutual legal and political assistance to anyone who refuses to follow Obergefell for constitutionally protected reasons.

Slaves of History - Israelis and Palestinians

Like other Americans I support the right of Israel to exist.  Why? Because they are there.  And I support the right of the Palestinians to a state.  Because they are there.  Of course my view is colored by the experience of the Holocaust.  But that was a European crime which does not justify the expropriation of Arab land.  I know that Jews for two thousand years have ritually recited the prayer "next year in Jerusalem".   But that has no moral claim on the Arabs whose ancestors lived there all that time.

So what to do?  Co-exist! - gwc

Slaves of History
by Josh Marshall

As Amos Oz has explained perhaps more eloquently than anyone else, the Israeli-Palestinian conflict is not based on any misunderstanding. Lack of contact, and the corrosive force of mutual violence inflame the issue. But there's no misunderstanding at the root of it. You have two peoples, two national movements that have equally profound and entirely different claims to the same piece of land. From the vantage point of today, these histories and historical arguments are, I would argue, should be ignored as much as possible. Why Israel proper is populated mainly by Jewish Israelis is a fascinating historical point. But they're there. Same with the Palestinians in the territories. Again, this is why I support a two-state solution. But nationhood and identity is intrinsically connected to the past. And the simple reality is that these two claims, two historical narratives are totally irreconcilable.

For the Palestinians, it's their land. Period. A foreign people started settling it a century ago, with critical help from various foreign powers. But the whole thing is theft. They've been expelled from their own country. Overlay this with the history and ideology of Islam which views itself as the superseder of both Judaism and Christianity. Jerusalem is Muslim, the Temple Mount is Muslim, all of Palestine is Muslim. And the fact that it is currently controlled by Jews - members of a superseded religious group (critically, there is no recognition of Jews as a national group) which is meant to be a protected group under Muslim rule is a complete perversion of the logic of history.

Critically, for Muslims and Arab nationalists, Zionism can't be distinguished from and is actually simply a subgenre of European colonialism. And just as colonialism was reviled and ultimately turned out of the region, so will Zionism.

For Jews, Israel - ironically even more the West Bank - is the cradle of their history, where they became a people and lived for about a millennium (depends where you want to disentangle history and legend). They were partly expelled once and returned. They rebelled against the Romans twice in the late first and early second century, the result of which was the destruction of almost all of Jewish society, mass killing on a genocidal scale and much of the rest of the population sold into slavery. Jerusalem and what in Hebrew is the "Land of Israel" has been an object of aspiration and devotion ever since. After countless expulsions and oppressions over the course of roughly 2000 years a political movement formed which had at its base the idea that Jews could never be safe or complete as sojourners of whatever duration in other countries. They needed to return to their original homeland. Here the resurgence of a new and yet very old form of anti-Semitism in Europe (pre-dating but culminating in the Holocaust) played a critical assist in making this argument compelling and for many inescapable. Jews never stopped believing they would inevitably return to the land we now call Israel and Palestine. The key was moving that expectation from the eschatological future to the present day.

Wright: The New Old Efficiency Theories of Causation and Liability by Richard W. Wright :: SSRN

The New Old Efficiency Theories of Causation and Liability by Richard W. Wright :: SSRN

The New Old Efficiency Theories of Causation and Liability

Richard W. Wright 

Illinois Institute of Technology - Chicago-Kent College of Law

October 9, 2015

Journal of Tort Law, Forthcoming 
Abstract:      

For the last forty years, efficiency theorists have attempted to demonstrate that tort liability in general and negligence liability in particular can best/only be explained by the hypothesis that judges are trying to maximize aggregate social welfare. Thirty years ago I published a pair of articles criticizing these attempts, noting especially the efficiency theorists' inability to explain and justify the factual causation requirement in tort law. Nevertheless, the efficiency theorists have continued to make the same arguments. In this paper, I canvass the old arguments and their current restatements, including the attempts by some of the leading theorists to equate ex post analysis of actual causation with ex ante analysis of negligent conduct and attempts by others to explain the actual negligence liability rules. None of the rules proposed by the efficiency theorists is consistent with the practice of the courts, and none of them would promote efficient deterrence. Worse yet, the least descriptively plausible negligence liability rule proposed by the efficiency theorists is the one likely to be the least inefficient in actual practice, while the one assumed by most efficiency theorists will be the most inefficient. The fundamental problem with the efficiency theories is that they assume that the focus of law should be and is on the maximization of aggregate social welfare, rather than justice -- the promotion of everyone's equal external freedom in their interactions with others.

Triggering Surveillance: Third Circuit Reinstates Muslim Suit Against NYPD Surveillance

In the shock of the aftermath of the catastrophic attacks of September 11, 2001 the New York Police Department, like others, realized that they were ignorant of the threat until the attacks.   Like others, they resolved to say never again. A program of surveillance of Muslim communities, mosques, businesses and organizations.  The NYPD’s reach extended to New Jersey.  Their objective was to prevent another surprise attack by developing informants in every Muslim mosque, store, or organization allege the plaintiffs in  Hassan v. City of New York.

The Muslim clerics, students, employers, and others who filed suit alleged that NYPD surveillance was prompted by mere “affiliation” with a Muslim mosque, school, or business.  The plaintiffs claim the program - endorsed and defended by former Mayor Michael Bloomberg - and even to this day by the City - is stigmatizing, and deters people from associating with Muslim organizations and enterprises.  The plaintiffs allege that using faith rather than evidence as a trigger for suspicion and surveillance is an impermissible stereotype, violating the equal protection clause of the 14th Amendment.

District Judge William Martini struck the complaint, finding that the plaintiffs lacked standing to sue.  They had alleged no injury sufficient to give them the stake in the controversy mandated by the case and controversy clause of the federal constitution, as construed.  But the Third Circuit, crediting as true the allegations of the Muslim plaintiffs, disagreed.  Subjecting people on the basis of their faith, not their conduct, to police surveillance is akin to a “dignitary tort”.  It is the discrimination on the basis of faith affiliation alone that is the “affront”, the “claimed discrimination itself [is] the primary injury”.

The City responds that the police mean no harm, that they are motivated by the desire to protect the citizenry from threats like that inflicted that terrible September day in 2001.  But, as the unanimous panel finds, discrimination on the basis of religion is “inherently invidious”, regardless of the sincerity or purpose of the actors.  The courts, the panel notes are not “instruments of police plicy”, but rather guardians of the Constitution which forbids the inference that “examples of individual disloyalty prove group disloyalty”.  We have been down that sad road before the court observes: “Jewish American during the Red Scare, African Americans during the Civil Rights Movement, and Japanese Americans during World War II”.


The court does not doubt the NYPD’s protective intentions.  But if the allegations are proven, they will be an illustration that once again we have faced a not uncommon mistake: that group identity is a “permissible proxy for criminality”, and that pervasive surveillance of such groups is can be carried out.  The Third Circuit properly vacated the dismissal and allowed the action to proceed. - gwc

The Deadly Fraud of "American Exceptionalism" | BillMoyers.com

The Deadly Fraud of "American Exceptionalism" | BillMoyers.com

When Conservatives Cite Lincoln: From Dred Scott to Obergefell — Crooked Timber

Hyperbole is the death knell of rational argument, if not of practical effect.  By overstating an argument one attempts  to prove more than available evidence supports.  Thus it is with Robert George whose near insurrectionary call to defy the Supreme Court's 5-4 marriage quality ruling.  To George the modern secular conception of marriage as merely personal commitment is an anathema.  Only procreative purpose, capacity, or openness is morally acceptable.  And in his view the state must enforce that principle.  The Obergefell majority rule is therefore illegitimate, in his view.

OK.  But he then attempts to show that his view has moral sanction by citing Abraham Lincoln's supposed defiance of Dred Scott v. Sanford.  Unfortunately for George the evidence is plain that Lincoln engaged in no such defiance.

- GWC
When Conservatives Cite Lincoln: From Dred Scott to Obergefell — Crooked Timber
by Corey Robin  (CUNY Graduate Center)

Conservative scholar Robert George has issued a “call to action” to constitutional scholars and presidential candidates who are opposed to the Supreme Court’s gay marriage decision in Obergefell v. Hodges. George believes the decision was wrongly decided, that it is a gross usurpation of judicial power and misinterpretation of the Constitution.

But things take an interesting turn in the statement, when George invokes Lincoln on Dred Scott to argue that, despite the Court’s ruling, we—and more important, government officials, including future presidents—should not accept Obergefell as the law of the land. That is, we, and they, should not accept Obergefell as binding on our/their conduct.

Obergefell is not “the law of the land.” It has no more claim to that status than Dred Scott v. Sandford had when President Abraham Lincoln condemned that pro-slavery decision as an offense against the very Constitution that the Supreme Court justices responsible for that atrocious ruling purported to be upholding.

Lincoln warned that for the people and their elected leaders to treat unconstitutional decisions of the Supreme Court as creating a binding rule on anyone other than the parties to the particular case would be for “the people to cease to be their own rulers, having effectively abandoned their government into the hands of that eminent tribunal.”

Because we stand with President Lincoln against judicial despotism, we also stand with these distinguished legal scholars who are calling on officeholders to reject Obergefell as an unconstitutional effort to usurp the authority vested by the Constitution in the people and their representatives….

Swiss gun control

Who shouldn't prosecute police?

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2654463

Slow and steady wins the family synod on sexuality issues | National Catholic Reporter

Slow and steady wins the family synod on sexuality issues | National Catholic Reporter
by Kris Berggren

The Synod of Bishops on the Family is expected to result in some changes in church teaching on the touchy topic of sexuality, says Massimo Faggioli, associate professor of theology and director of the Institute for Catholicism and Citizenship at the University of St. Thomas, St. Paul, Minn.

Faggioli predicts the synod may move the dial on allowing divorced and remarried Catholics to participate in Communion and on welcoming gay people and their families into the church more fully without going so far as to bless same-sex marriage. While he says not to expect any changes to the official teaching on contraception soon,* Faggioli says that Francis has already reinterpreted Humanae Vitae, so that the teaching is not a big problem for the pontificate.

That may in part be the result of unprecedented lay input into the synod process.

"Until Francis, the synod was basically a boring show. With Francis it’s not a show, he is really listening. He has a real agenda," said Faggioli, an Italian who spends part of each summer at the Vatican doing research.

The Cult of the Second Amendment

GOP hostility to government (it's the problem, not the solution - Reagan) has facilitated the development of 2d Amendmentistas and virtually insurrectionary rhetoric.  My gun protects me from government tyranny people casually assert, but some really take it seriously.  It's a religious belief masquerading as political principle....- gwc

The Cult of the Second Amendment
by Ed Kilgore

[L]iberals generally are not amused by the suggestion that “patriotic” Americans should be stockpiling guns in case “they”—it’s not clear who, of course—decide it’s time to start shooting police officers and members of the armed forces in defense of their liberties, which in some cases are perceived to be extremely broad. Indeed, a lot of Second Amendment ultras appear to think the right to revolution is entirely up to the individual revolutionary. Here’s Sen. Joni Ernst of Iowa, the darling of the GOP Class of 2014, talking aboutthis contingency in 2012:

I have a beautiful little Smith & Wesson, 9 millimeter, and it goes with me virtually everywhere...But I do believe in the right to carry, and I believe in the right to defend myself and my family — whether it’s from an intruder, or whether it’s from the government, should they decide that my rights are no longer important.

You can wonder, as I often do, how people like Ernst would react to such rhetoric if it were coming from a member of a black nationalist or Islamist group. But clearly, there’s no point in progressives seeking any “compromise” with them on gun issues. They can only be defeated by a true mass social movement supporting reasonable gun regulation. But it’s important to understand that according to the Cult of the Second Amendment, opponents of gun measures have every right to fire back, literally.

Ed Kilgore is the principal blogger for Washington Monthly's Political Animal blog and Managing Editor of The Democratic Strategist. Earlier he worked for three governors and a U.S. Senator. He can be followed on Twitter at @ed_kilgore.

Palestinians are fighting for Their Lives, Israelis for the Occupation

This by the Haaretz Occupied Territories reporter is the sort of rant that is unpublishable in major media here.  But it is literally true.  The occupation of the West Bank and the encirclement of Gaza can be and are maintained only by force.  Palestinians attack Israelis not because they are Jews but because they are occupiers and oppressors.  Of course anger spurs all sorts of vile expression - but the underlying cause remains the occupation. -gwc

Palestinians are fighting for Their Lives, Israelis for the Occupation  Haaretz
by Amira Haas
Yes, this is a war, and Prime Minister Benjamin Netanyahu, with his mandate from the people, has ordered its intensification. He does not listen to Palestinian President Mahmoud Abbas’ messages of conciliation and acceptance in calmer times, why should he listen to them now?
read more

A gun-free society - The Washington Post

A gun-free society - The Washington Post

By Fred Hiatt Editorial page editor October 4 

Maybe it’s time to start using the words that the NRA has turned into unmentionables.

Fred Hiatt is the editorial page editor of The Post. He writes editorials for the newspaper and a biweekly column that appears on Mondays. He also contributes to the PostPartisan blog. View Archive

•   Prohibition.

Mass buyback.

A gun-free society.

Let’s say that one again: A gun-free society.

Doesn’t it sound logical? Doesn’t it sound safe? Wouldn’t it make sense to learn from other developed nations, which believe that only the military and law enforcers, when necessary, should be armed — and which as a result lose far, far fewer innocent people than die every year in the United States?

Yes, even saying these words makes the NRA happy. It fuels the slippery-slope argument the gun lobby uses to oppose even the most modest, common-sense reforms. You see? Background checks today, confiscation tomorrow.

And yes, I understand how difficult it would be. This is a matter of changing the culture and norms of an entire society. It would take time.

But the incremental approach is not succeeding. It sets increasingly modest goals, increasingly polite goals: close a loophole here, restrict a particularly lethal weapon there. Talk about gun safety and public health. Say “reform,” not “control.”

Forget about changing the Second Amendment. And stop focusing on mass killings. - The Washington Post

 

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Forget about changing the Second Amendment. And stop focusing on mass killings.

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By Greg Sargent October 5 at 2:23 PM  

(Karen Bleier/AFP/Getty Images)

The recent spate of high profile shootings — in Charleston, Oregon, and elsewhere — has again propelled forward the question of how to combat gun violence, suggesting it might even become a meaningful issue in 2016. So there are two things liberals and Democrats might want to start clarifying right now about how they’re going to approach this debate:

1) It’s probably a good idea for liberals to fully acknowledge the individual gun right, and focus on making the case that sensible regulation of firearms is not incompatible with that right.

2) Instead of getting drawn into debates over mass shootings, it’s probably better to focus on the broader problem of gun violence, which is actually the more pressing policy challenge in many respects, even though (paradoxically) the political world engages on it only when there are mass shootings.

I chatted about these ideas today with Adam Winkler, a professor of Constitutional law at the University of California who is the author of “Gunfight: The battle over the right to bear arms in America,” an even-handed history of guns in America and the political, legal, and policy battles over them. A transcript of our conversation, lightly edited for length and clarity, follows:

THE PLUM LINE: Former Supreme Court justice John Paul Stevens has been advocating for a change in the Second Amendment to clarify that the Constitutional gun right only exists in the context of militia membership. But this seems misguided. Isn’t the better argument to concede the individual gun right, while making the case that this right isn’t incompatible with sensible regulation of firearms?

PROFESSOR ADAM WINKLER: That’s right. The Second Amendment is not the biggest hurdle to effective gun control laws. Courts have rarely invalidated gun control laws for violating the Constitution. With over 300 million guns in circulation, and gun owners completely unwilling to give them up, even if we were to repeal the Second Amendment, we’d still be awash in guns.

Gun control and gun rights are not incompatible. Over the course of American history, we’ve always had both.

There are many gun owners out there who support more effective gun control law...
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