Sunday, April 30, 2017

Is President Trump Above the Law of Incitement? - Lawfare

This is NOT what democracy looks like.
THIS is what democracy looks like.

President Trump is Above the Law (of Incitement) - Lawfare
by Quinta Jurecic

Last night, at a rally in Harrisburg, Pennsylvania convened to celebrate the hundredth day of his presidency, Trump was interrupted by protesters. In response, he declared, “Get him out of here”—and the protester in question was ejected.
This incident is notable for exactly one reason: President Donald Trump is currently being sued in federal court for incitement over events at a campaign rally in March 2016 in which he did literally the same thing—that is, spoke almost verbatim the same words.
Trump is being sued for incitement in a case before the U.S. District Court for the Western District of Kentucky. Three plaintiffs have filed suit against Trump for his conduct during campaign event in Louisville, Kentucky. The plaintiffs, who were protesting the event, allege that they were shoved and hit by rally attendees after Trump encouraged his supporters to “Get ‘em out of here.” The district court court recently denied a motion by Trump to dismiss the case, allowing the case to proceed, at least for now. The court has not decided that Trump’s conduct constituted incitement, but it has refused to dismiss the matter on grounds that it couldn’t be incitement.

Priebus: First Amendment on the block!

Jonathan Karl (ABC News) interviewed Reince Priebus (White House Chief of Staff) this morning:

KARL: I want to ask you about two things the President has said on related issues. First of all, there was what he said about opening up the libel laws. Tweeting “the failing New York Times has disgraced the media world. Gotten me wrong for two solid years. Change the libel laws?” That would require, as I understand it, a constitutional amendment. Is he really going to pursue that? Is that something he wants to pursue?
The First Amendment is engraved in stone at the
Newseum  on Pennsylvania Avenue, Washington, D.C.
PRIEBUS: I think it’s something that we’ve looked at. How that gets executed or whether that goes anywhere is a different story. But when you have articles out there that have no basis or fact and we’re sitting here on 24/7 cable companies writing stories about constant contacts with Russia and all these other matters—
KARL: So you think the President should be able to sue the New York Times for stories he doesn’t like?
PRIEBUS: Here’s what I think. I think that newspapers and news agencies need to be more responsible with how they report the news. I am so tired.
KARL: I don’t think anybody would disagree with that. It’s about whether or not the President should have a right to sue them.
PRIEBUS: And I already answered the question. I said this is something that is being looked at. But it’s something that as far as how it gets executed, where we go with it, that’s another issue.

Wednesday, April 26, 2017

Sotomayor dissent

Monday, April 24, 2017

SCOTUS Should Adopt a Code of Judicial Conduct// Lubet// Legal Ethics forum

Legal Ethics Forum: SCOTUS and the Code of Judicial Conduct
by Steve Lubet (Northwestern Law School)
I have an oped on explaining why SCOTUS should adopt a Code of Judicial Conduct.  Here is the gist:
While Supreme Court justices obviously face the same quandaries and dilemmas as all other judges, they alone have no set rules for resolving, or even addressing, ethics issues.
Members of Congress have repeatedly called on the justices to adopt an ethics code. Most recently, Sen. Chris Murphy, D-Connecticut, and Rep. Louise Slaughter, D-New York, introduced the Supreme Court Ethics Act of 2017, which would give the court six months to "promulgate a code of ethics" based on the Code of Conduct for US Judges already in effect for the lower federal courts, along with any modifications that "the Supreme Court deems appropriate."
[T]he objective of a code would be to set discernible standards for the justices' conduct so that the public could know the norms to which the justices are holding themselves.
You can read the whole thing here.


Held: When a federal court exercises its inherent authority to sanction bad-faith conduct by ordering a litigant to pay the other side’s legal fees, the award is limited to the fees the innocent party incurred solely because of the misconduct—or put another way, to the fees that party would not have incurred but for the bad faith.

Florida Proposes Adding Rule Regarding Short-Term Limited Legal Service Programs | Legal Ethics in Motion

Florida Proposes Adding Rule Regarding Short-Term Limited Legal Service Programs | Legal Ethics in Motion

Sunday, April 23, 2017

He robbed banks and went to prison. His time there put him on track for a new job: Georgetown law professor. - The Washington Post

Amazing story of redemption.  
On of his article appeared in the Fordham Law Review

Slicing Through the Great Legal Gordian Knot: Ways to Assist Pro Se Litigants in Their Quest for Justice

- gwc
He robbed banks and went to prison. His time there put him on track for a new job: Georgetown law professor. - The Washington Post
By Susan Svrluga

During a break in a basketball game to raise money for charity, Shon Hopwood told some of his Georgetown law students it felt different than the last time he was on a court: When he played basketball in federal prison, he had to carry a shank in case his team started to lose.
His students laughed. He ran back onto the law-school court — and sank the winning shot.
Hopwood’s new job as a tenure-track faculty member at the Georgetown University Law Center is only the latest improbable twist in a remarkable life: In the last 20 years, he has robbed banks in small towns in Nebraska, spent 11 years in federal prison, written a legal petition for a fellow inmate so incisive that the U.S. Supreme Court agreed to hear the case, done that again, earned undergraduate and law degrees and extremely competitive clerkships, written a book, married his hometown crush and started a family.
But this could be his most compelling role yet. His time in prison gave him an unusual perspective on the law that allows him to see things other lawyers overlook, and a searing understanding of the impact of sentencing and the dramatic growth in incarceration in the United States.
“It’s one of the big social-justice issues of our time,” he said. The United States has 5 percent of the world’s population but 25 percent of its prisoners. 

As LePen goes to Runoff - What happens next in France will determine the level of bigotry Europe is willing to tolerate

Image result for french national front
France - which led the way to republican government under the slogan "liberte, fraternite, egalite" heads into a crucial election in which voters could embrace bigotre and racisme.  If you may have forgotten that Europe in the 1930's descended into barbarism - this is a good reminder of the path. - gwc
What happens next in France will determine the level of bigotry Europe is willing to tolerate
by Adrienne Mahsa Virkiani // Think Progress

French voters headed to the polls on Sunday to cast their vote for the country’s next president. The results: Far-right Marine Le Pen and centrist Emmanuel Macron will head to the runoffs on May 7.
According to the Guardian’s live blog of the elections, Macron has a slightly larger share of the votes (23.7 percent) than Le Pen (21.7 percent) thus far. Center-right candidate François Fillon and far-left candidate Jean-Luc Mélenchon are at about 19.5 percent, and socialist candidate, Benoît Hamon, is at about 6.5 percent.
Following a year of rising nationalism in Europe and the United States, intertwined with fear-mongering about immigration, the results of the runoff could be an indicator of how much xenophobia Europe is willing to tolerate.
Le Pen, head of the National Front (FN) party, has run on a vocally anti-Islam, anti-immigrant platform — and as a result, has often been compared to U.S. President Donald Trump. In November of last year, Le Pen called Trump’s victory “a sign of hope for those who cannot bear wild globalization,” and two weeks before his inauguration, she was seen at Trump Tower in New York. On Friday, she was tacitly endorsed by Trump.

A Hundred Days of Trump - The New Yorker

A stunning rant about the Trump presidency by the editor of The New Yorker.  It ends with this peroration. - gwc
A Hundred Days of Trump - The New Yorker
by David Remnick

***The clownish veneer of Trumpism conceals its true danger. Trump’s way of lying is not a joke; it is a strategy, a way of clouding our capacity to think, to live in a realm of truth. It is said that each epoch dreams the one to follow. The task now is not merely to recognize this Presidency for the emergency it is, and to resist its assault on the principles of reality and the values of liberal democracy, but to devise a future, to debate, to hear one another, to organize, to preserve and revive precious things. 

Let's Talk About Bubbles and James Comey | Mother Jones

Today's big story about James Comey puts hi backin the news.  Essentially his argument, filtered through Columbia Law prof Daniel Richman is "Jim was playing it straight",

Rather than close the criminal investigation with a simple statement of no charges * Comey went on TV because the American people had a right to know - and to know that he did not cave to Democratic partisan pressure,
* Comey sent the October 28 letter because he was afraid that post-election if the Weiner laptop contained damaging information he would be seen as having covered up for Hillary Clinton.
- he did not divulge the investigation into Trump's Russian ties because...that is an open investigation.

At each of these points Comey's acts benefited Trump.  At every point he acted to benefit Trump.

This was a "one off" unique situation Comey's supporters say.  If it was one off then he should have said lessrather than more. - gwc
Let's Talk About Bubbles and James Comey | Mother Jones
by Kevin Drum
I have frequently made the case that Donald Trump is president because of FBI director James Comey. On October 28, Comey wrote a letter to Congress telling them that the FBI was investigating a new cache of Clinton emails that it found on the laptop of Huma Abedin's estranged husband, Anthony Weiner. That was the turning point. Clinton's electoral fortunes went downhill from there and never recovered.
As shocking as this may sound, not everyone agrees with me. A new book, Shattered, makes the case that Clinton was an epically bad candidate and her campaign was epically badly run. That's why she lost. Yesterday, Shadi Hamid took aim at me for my continued Comey obsession in the face of the story told in Shattered:
Sad to watch smart, liberal writers, like @kdrum, refuse to engage in introspection, instead blaming HRC's loss on Comey, Russia, squirrels
I'm citing @kdrum b/c I loved his blog. But then he descended into self-parody. His position—no hyperbole—is that it's all b/c of Comey

Let's talk. There's a reason I blame Comey, and it's not because I live in a bubble. It's because a massive amount of evidence points that way.

Friday, April 21, 2017

DOJ on Sanctuary Cities -Feel The Propaganda, Feel the Hate

A.G. Jeff Sessions of Alabama
Feel The Propaganda, Feel the Hate
by Josh Marshall
from the Department of Justice letter to "Sanctuary Cities".
Additionally, many of these jurisdictions are also crumbling under the weight of illegal immigration and violent crime. The number of murders in Chicago has skyrocketed, rising more than 50 percent from the 2015 levels. New York City continues to see gang murder after gang murder, the predictable consequence of the city’s “soft on crime” stance. And just several weeks ago in California’s Bay Area, after a raid captured 11 MS-13 members on charges including murder, extortion and drug trafficking, city officials seemed more concerned with reassuring illegal immigrants that the raid was unrelated to immigration than with warning other MS-13 members that they were next.
The second highlighted sentence doesn’t explicitly say the murder rate continues to rise in New York City. But that is certainly the intended impression, along with the dig at ‘soft on crime’ policies.
But as Professor John Pfaff of Fordham Law School noted on Twitter, precisely the opposite is the case.

China's top court: Judges should look to precedent | Supreme People's Court Monitor

This is a placemarker for a future discussion of a remarkable development in the Chinese courts.  Chinese scholars have been fascinated by the common law tradition of judge made law.  But in a system which generally seeks to track the European codes, in a political system designed to be unitary, in which the highest court is - effectively - the cumbersome national People's Congress - how was such a thing to happen in China?
The Supreme People's Court has slowly moved to solve the problem.  First it designated a growing list of Guiding Cases by which courts should be, well, guided.  Then it mandated that all judgments be posted online - creating an enormous database for lawyers - and judges - to mine.  And now the Court has broken the firewall.   Susan Finder reports.
Supreme People’s Court to require prior case search | Supreme People's Court Monitor
by Susan Finder

The SPC’s Opinions on Putting a Judicial Responsibility System in Place and Improving Mechanisms for Trial Oversight and Management (Provisional) contains the following phrase:

6. All levels of people’s courts shall give full play to the professional judges’ conferences and adjudication committee’s roles in summarizing trial experience unifying judgment standards; and on the foundation of improving working mechanisms such as consulting similar cases and judgment guidance; a mechanism is to be established requiring the search of similar cases and relevant cases, to ensure a uniform judgment standard for similar cases, and the uniform application of law.

This requires judges to do what many of them have been already doing –searching the case databases for prior cases that raise the same or similar issues and other issues related to the principal one(s).

Tuesday, April 18, 2017

When Veterans Protested the Vietnam War - The New York Times

Image result for vvaw
When Veterans Protested the Vietnam War - The New York Times
by Jan Barry
An ad in the April 9, 1967, edition of The New York Times caught my attention and changed my life. “We appeal to North Vietnam, if they really want peace, to stop bombing the United States — or else get the hell out of Vietnam!” stated a group named Veterans for Peace in Vietnam. A Vietnam veteran myself, I recognized it as a tonic outburst of G.I. black humor, a cheeky comment on the reality of who was bombing whose homeland. It also convinced me that there was a role for me to play, as a veteran, in exposing what the American government was doing in Indochina.
Posted to Vietnam as an Army radio specialist, I celebrated my 20th birthday in Saigon in January 1963, a very drunk soldier in the United States Military Assistance Command Vietnam. Two and a half years before the Gulf of Tonkin “incident,” we were already waging war — when we weren’t doing happy hours in bars from the Delta to Da Nang — under slick counterinsurgency slogans like “winning hearts and minds” and cynical unit slogans like “only you can prevent a forest” (motto of the Air Force missions spraying the countryside with chemical warfare herbicides). I’ll admit — some of it was thrilling. I caught flights on Air Force C-123s skimming treetops and bush-pilot planes flown by my Army unit transporting Special Operations teams in and out of hush-hush places, with B-26 and T-28 bombers and assorted other airplanes and helicopters flitting around, all part of a strategy to “pacify” rice-farming regions and jungle forests potentially harboring elusive Vietcong guerrillas, under the guise of being “military advisers” to a government we had installed.
Our mission was to hold Communist China in check. We occupied old French Foreign Legion posts, contemptuous of the French for being defeated by Vietnamese. Yet we seldom controlled much beyond our bases. Things in Southeast Asia, I learned, were not as upstanding as portrayed in official pronouncements. Declining a military career, I resigned from the United States Military Academy, where I went after serving in Vietnam, intending to write an exposé of our secretive, bizarre little war in Southeast Asia. That project got snagged in a tangle of new revelations as the war mushroomed in 1965-66 into an assault on the scale of World War II campaigns.

May's Gambit. // LRB

Sunday, April 16, 2017

China’s 19th Party Congress & Judicial Reform | Supreme People's Court Monitor

March 29, 2017 meeting of CCP leading group on reform of the justice system
As the 19th Party Congress approaches there is a strong push to implement the reforms decreed by the 4th Plenum of the Central Committee in 2014.   The central leadership calls on party members to "work hard to ensure that the objectives of  reform of the justice system  will be mainly achieved before the 19th Party Congress".
China's contradictory legal system development continues.  Despite the fact that Chinese intensely debate current issues on social media there is no doubt that dissent is treated with increasing vigor.  One irony of the shift of public discourse to the web is that offending terms can be readily searched and posts removed, blocked, etc.  And lawyers for dissidents are detained, harassed and sometimes convicted.
At the same time the transparency of courts and legislation has proceeded at rapid pace.  The notice and comment system plus the publication of all judgments online permits greater scrutiny - by public and by Party disciplinarians.
Perhaps most important is the priority placed by the Party leadership on increasing the competence of the judiciary and the effectiveness of the legal system's regularized and reliable dispute resolution processes.
Susan Finder walks us through the process. - gwc
China’s 19th Party Congress & Judicial Reform | Supreme People's Court Monitor
by Susan Finder

Meng Jianzhu, Politburo member and head of the Communist Party Central Political Legal Committee, held a meeting in late March (photo above), to convey Xi Jinping’s message–those in leadership positions must do all possible to ensure that judicial system reform responsibility targets are basically achieved before the 19th Party congress (努力实现党的十九大召开前基本完成司法体制改革努力实现党的十九大召开前基本完成司法体制改革任务的目标). For those not familiar with Chinese political-legal jargon, “judicial system” (司法体制) means here the political-legal institutions–the courts, procuratorate, public/state security, and justice administration. “Responsibility and targets” are also Chinese political jargon. Xi Jinping’s message dates from early January, when he highlighted this goal in instructions transmitted to the Communist Party Central Committee’s national political legal work conference. He emphasized that the cornerstone of the judicial system reform is the judicial accountability system. Part of the message is that 2017 is a critical time, during which there is a “decisive battle” for deepening judicial reform, the battle intended to achieve those targets. “Decisive battle” is also a core part of Chinese political jargon.

Since late March, Supreme People’s Court (SPC) President Zhou Qiang and other senior SPC leaders have been publicizing the target of completing judicial system reform, particularly the judicial accountability system, before the 19th Party Congress. The SPC leadership has been doing that through meetings, both of the SPC itself (and the circuit courts) and the provincial-level courts and through SPC media outlets. President Zhou Qiang did so during a recent visit to Anhui, while on April 7, executive vice president Shen Deyong, vice-president Li Shaoping, and Political Department head Xu Jiaxin transmitted that message on a nationwide court video conference. This message is likely to be repeated in the months leading up to the 19th Party Congress.

In recent days, the SPC’s judicial reform office has been explaining these reforms to the public that reads SPC professional publications, such as the People’s Court Daily and China Trial, with some of the core content in the form of FAQs. The reforms outline the way a post-reform court should operate. Some of the points were previously set out in the SPC’s February, 2017 judicial reform white paper.

A brief summary of the responses follows below:

Required to Report a Client’s Drug Addiction? Illinois Says Not Necessarily… | Legal Ethics in Motion

Image result for Illinois State Bar Association Professional Conduct Advisory Opinion
This fascinating Illinois State Bar Ethics Opinion 17-01 presents this question under the state's RPC 1.6(c)which mandates disclosure "to the extent the lawyer reasonably believes necessary to prevent death or substantial bodily harm". :
The inquiring attorney has a client who is addicted to heroin and opioids, and also takes cocaine, marijuana and methadone. The client is arrested for possession of a controlled substance, and appears severely impaired during court hearings, but remains silent before the Judge, allowing the attorney to do the speaking. The client is unable to stop consuming heroin and continues to be in violation of bond conditions.
In essence the bar committee finds insufficient immediacy of harm but suggests that in appropriate circumstances  RPC 1.14  Diminished Capacity may allow the lawyer the ability to take protective steps.


Required to Report a Client’s Drug Addiction? Illinois Says Not Necessarily… | Legal Ethics in Motion
by Nicole Comparato

A recent Illinois ethics opinion advised that although a lawyer is obligated to reveal confidential information about a client if is deemed reasonably necessary to prevent certain death or substantial bodily harm, a client’s addiction to heroin or opioid drugs will not trigger that obligation, absent more specific factual details that indicate the risk is not simply remote and uncertain.

This opinion responded to an attorney’s inquiry about a client, who appeared severely impaired during court hearings and had been unable to stop consuming heroin in violation of bond conditions. Illinois Rule 1.6 departs from ABA Model Rule 1.6 and requires mandatory reporting of life-threatening, dangerous information (rather than discretionary reporting).

The opinion acknowledged that this kind of drug addiction is serious and poses a danger to the client’s safety and wellbeing, but could not conclude that the mere knowledge of such an addiction triggers the mandatory obligation. Though the risk need not be immediate, Comment [6] to Illinois Rule 1.6 states that there must at least be a present and substantial threat that the person will suffer such harm at a later date if the lawyer takes no action to eliminate the threat.

Here, the opinion states that even though this client’s drug addiction presents a future risk, “such danger is sufficiently remote in time and uncertain of occurrence as to render us unable to say that it presents the present and foreseeable threat … as would be required to call the Rule into play.” Therefore, under the circumstances, disclosure was not required.

The opinion made clear that this analysis is “intensely fact-sensitive” and that there could be a factual scenario where a drug addiction requires mandatory reporting—such as a client with a history of attempted suicide or self-inflicted bodily harm. Furthermore, the opinion offered an alternative to Rule 1.6, suggesting that Rule 1.14, which discusses clients with diminished capacity, allows for an attorney to take protective actions such as consulting with necessary entities or appointing a guardian, if necessary, without violating confidentiality. These are all avenues that an attorney should consider if confronted with a similar situation.

Saturday, April 15, 2017

How To Declare War (Anno Domini 1429; 2017 Repost) - Lawfare

Hint: It's not by tweet.
How To Declare War (Anno Domini 1429; 2017 Repost) - Lawfare
by Kenneth Anderson (American University Law School, Brookings  Institution)
Jhesus-Maria, King of England, and you, Duke of Bedford, who call yourself regent of the Kingdom of France, you, Guillaume de la Poule, count of Suffort, Jean, sire of Talbot, and you, Thomas, sire of Scales, who call yourselves lieutenants of the Duke of Bedford, acknowledge the summons of the King of Heaven.  Render to the Maid here sent by God the King of Heaven, the keys of all the good towns which you have taken and violated in France.  She is here come by God’s will to reclaim the blood royal.  She is very ready to make peace, if you will acknowledge her to be right, provided that France you render, and pay for having held it.  And you, archers, companions of war, men-at-arms and others who are before the town of Orleans, go away into your own country, by God.  And if so be not done, expect news of the Maid who will come to see you shortly, to your very great injury.  King of England, if you do not so, I am chief-in-war and in whatever place I attain your people in France, I will make them quit it willy-nilly.  And if they will not obey, I will have them all slain; I am here sent by God, the King of Heaven, body for body, to drive you out of all France.  (Written this Tuesday of Holy Week, March 22, 1429.)
Joan of Arc, the Maid of Orleans, sends a formal letter of summons to the English upon the siege of Orleans.  (  Source and translation: Regine Pernoud, Joan of Arc, translated by Edward Hyams (1964). Title changed from 2017 Update to 2017 Repost -Ed.) 

Friday, April 14, 2017

Reaching Out to the Voters the Left Left Behind - The New York Times

Thomas Edsall -whose trenchant analyses appear only in the Times online - employs his usual relentless presentation of facts to explain things like:  why our little fishing town in Maine cast more 25% more votes for Trump than it did for Mitt Romney four years ago.  As the graph above shows cities have surged while small town america has declined economically.  Of course it's not all economics - fuel is low and the price of lobster is high.  But Mainers (the whitest state in the country) were likely not repelled by Trump's racialist rhetoric or his depiction of Black urban neighborhoods as war zones.  And his simple barroom talk didn't jar them the way it did many of us. - GWC

Reaching Out to the Voters the Left Left Behind - The New York Times
by Thomas Edsall
The devastating recession that began at the end of 2007 and officially ended in June 2009 was the most severe downturn since World War II.
The political, social and even medical consequences of this recession have been duly noted, but even so the depths of its effects are only now becoming clear. One we’re still learning more about is how the rural, less populated regions of the country (known among demographers as nonmetropolitan counties), which already suffered from higher than average poverty rates, recovered from the recession at a far slower pace than more populous metropolitan counties.
The fact that people living outside big cities were battered so acutely by the recession goes a long way toward explaining President Trump’s victory in the last election.

Thursday, April 13, 2017

Victims ASk Reinstatement of $650M Terror Verdict vs PLO // Journal

Workers clean the inside of a cafeteria hours after a bomb exploded at Hebrew University in Jerusalem, killing nine, four of them Americans, and wounding more than 70, on July 31, 2002.

Big Law Bench Runs Deep in $655M Terror Case at High Court | National Law Journal
by Marcia Coyle

Thirteen years after suing the Palestine Liberation Organization and the Palestinian Authority—and winning a $655 million jury award in 2015—the American victims and estates of victims of a series of bombings and shootings in Israel are asking the justices to overturn a federal appeals court decision that jettisoned them out of court.

In Sokolow v. Palestine Liberation Organization & Palestinian Authority, the victims—members of 11 American families—bring to the high court a bevy of big-name lawyers and substantial friend-of-the-court support. The case could present a delicate foreign policy question for the Trump administration.***

The Second Circuit said there was no general personal jurisdiction over the PLO and Palestinian Authority because, despite having an office in Washington, they were not "at home" in the United States—the Supreme Court's test for personal jurisdiction.
The appellate court also held there was no specific personal jurisdiction because the attacks were not “specifically targeted [at] United States citizens” and the attackers did not have the "specific aim" of "targeting the United States.” That some U.S. citizens were being attacked and killed was an insufficient basis for specific jurisdiction.
Following the 2015 jury award in Sokolow, the Obama Justice Department filed a statement of interest with the district court on the amount of bond that might be required of the PLO and Palestinian Authority pending the appeal to the U.S. Court of Appeals for the Second Circuit. The department said it "strongly supports" civil remedies for American victims of terrorism but also raised "significant concerns about the harms that could arise if the court were to impose a bond that severely compromised the Palestinian Authority’s ability to operate as a governmental authority."
Gibson Dunn's Olson had little sympathy for any financial repercussions the case may have on the PLO and Palestinian Authority.

Wednesday, April 12, 2017

Physicians, Firearms, and Free Speech — Overturning Florida’s Firearm-Safety Gag Rule — NEJM

Image result for physician patient guns
 The First Amendment has, recently, been a tool of reaction.  Citizens United, banningthe FDA mandated graphic cigarette warnings have been defeats for citizens and consumer protection based upon the First Amendment right of free speech.  But finally the tables have turned.  Florida's ban on physiicams warning their patients about the dangers of gunn possession has been overturned. - gwc

Physicians, Firearms and Free Speech — Overturning Florida’s Firearm-Safety Gag Rule  New England Journal of Medicine

Wendy E. Parmet, J.D., Jason A. Smith, J.D., and Matthew Miller, M.D., Sc.D.
April 12, 2017DOI: 10.1056/NEJMp1702516 
In February, the full U.S. Court of Appeals for the Eleventh Circuit issued its long-awaited ruling in Wollschlaeger v. Governor, State of Florida, invalidating parts of Florida’s Firearm Owners’ Privacy Act (FOPA) and affirming that the First Amendment applies to the speech between physicians and patients. The decision ensures that physicians may continue to make efforts to protect their patients from gun-related injuries, many of which are fatal and which in aggregate account for approximately as many deaths annually as do motor vehicle accidents.
Passed in 2011, the FOPA is similar to legislation that has been introduced, but not enacted, in at least 10 other states.1 The law prohibits physicians from routinely asking patients about firearm ownership, routinely entering any information on firearm ownership into patient records, discriminating against patients on the basis of firearm ownership, and “unnecessarily harassing a patient about firearm ownership.”2 After its enactment, local physicians and medical associations challenged the FOPA in federal court, arguing that by placing these content-based restrictions on physicians’ speech, the Act violated the First Amendment. The District Court agreed and stopped enforcement of the law. The State of Florida appealed to the Eleventh Circuit. In an unusual course of events, three opinions of a three-judge panel of the Court of Appeals were issued and then vacated before the full, or en banc, court decided to rehear the case.
The full court disagreed with the panel, striking down most of the FOPA’s provisions by a resounding vote of 10 to 1. Continuing the pattern of procedural curiosities, the court issued two majority opinions. The lead opinion, which focused on the First Amendment claim, was authored by Judge Adalberto Jordan, an Obama appointee, and joined by eight other judges. The second opinion, written by Clinton appointee Judge Stanley Marcus and joined by six other judges, concluded that the FOPA’s antiharassment provision was unconstitutionally vague. Judge Gerald Tjoflat, a Ford appointee, who had authored the three previous panel decisions, wrote the lone dissent.

Tuesday, April 11, 2017

The Baby Boomer War - The New York Times

Image result for vietnam veterans memorial wall

This is a very good account of the military and the spirit of service of the post-war baby boomers by the former President of Dartmouth College who is a bit older than me and served in the Marine Corps.  Born in 1945 my peers were the most likely to serve in Vietnam.  Those who didn't, like me, performed overseas service pale by comparison in the Peace Corps.

At a wake (appropriately) last week I met Sean - a man ten years younger than me - who had served during the Carter years.  "Morale was low - we had just lost a war, and a Democrat was President" he told me.  He was surprised when I mentioned that Carter had served seven years in the Navy and was qualified for command of a submarine.

The reception of returning soldiers was not good, he said.  Victories lead to victory parades, I replied.  But beyond that those of us who were opposed to the war did not lionize those who had fought it.  We were more likely to point to the draftees whose lives were lost, and the reluctant service of those who enlisted to avoid being "grunts" on the front lines of a jungle war of dubious purpose.

Of course many of us volunteered, as I might have done if I had not been denied the Navy ROTC appointment for which I was qualified but then rejected because my nearsightedness disqualified me for pilot's duty.  I explained to no avail that I wanted to be aboard a ship.

The deepest emotional meaning of the war for me is the names of two friends on the Wall:  quarterback Mike Cunnion and sprinter Bob Donovan who flunked out after freshman year in 1964 and soon died in combat.  When I am in Washington I visit the Vietnam Veterans Memorial to again find their names.  Wasted lives in an ill-conceived war is the message for me.  - gwc
The Baby Boomer War - The New York Times
by James Wright

Of all the tropes about the Vietnam War, one stands out far above the rest in American memory: It was the baby boomers’ war. By the spring of 1967, most American soldiers being killed in combat had been born in 1946 or after.
To understand the war, we have to understand what motivated that generation of Americans not only to protest but also to fight, and later to seek some sort of closure. Wars are far easier to initiate than to conclude. And for those who serve, the memories endure long after the fighting stops.
At his inauguration in January 1961, President John Kennedy said, “Let every nation know, whether it wishes us well or ill, that we will pay any price, bear any burden, meet any hardship, support any friend, oppose any foe to assure the survival and the success of liberty.”
Those born after the boomers may find it quaint to read about a president asking citizens to sacrifice, to “pay any price.” Nonetheless, their parents or grandparents, the baby boomers, will most likely remember a brief shining moment of energized promise and of unfulfilled dreams. It was the echo of that call, just a few years later, that motivated hundreds of thousands of young men to enlist for Vietnam, for the chance to ensure “the success of liberty” — and many others back home, at least at the outset, to support the fighting.