The Cohen of Silence Breaks: What to Make of Wednesday’s Testimony - Lawfare

The Lawfare summary of Michael Cohen's day of Testimony before the House Oversight Committee.
The Cohen of Silence Breaks: What to Make of Wednesday’s Testimony - Lawfare: Despite the spectacle, Cohen’s testimony revealed a lot.

A liar, a cheat, a racist,and a conman - Michael Cohen Opening Statement_Oversight Committee_02.27.19.docx

Microsoft Word - Michael Cohen Opening Statement_Oversight Committee_02.27.19.docx

A Harvard Law Professor Is Representing Harvey Weinstein. Students Say This Makes Them Unsafe, Demand His Resignation. - Hit & Run : Reason.com

Harvey Weinstein, the former Hollywood producer and
co-owner of Miramax films has been accused of sexual misconduct by dozens of women.
He is awaiting trial for sexual assault in New York.
RPC 1.2 (b) A lawyer's representation of a client, including representation by appointment, does not constitute an endorsement of the client's political, economic, social or moral views or activities.(b) A lawyer's representation of a client, including representation by appointment, does not constitute an endorsement of the client's political, economic, social or moral views or activities.
A Harvard Law Professor Is Representing Harvey Weinstein. Students Say This Makes Them Unsafe, Demand His Resignation. - Hit & Run : Reason.com

Ronald S. Sullivan Jr. is a law professor at Harvard University and faculty dean of Winthrop House, one of the college's 12 residential houses. He was the first black man to serve in such a position, and also directs Harvard's Criminal Justice Institute and Trial Advocacy Workshop. In 2008, he advised the campaign of then-Sen. Barack Obama on criminal justice issues. He represented Michael Brown's family in their suit against the city of Ferguson, Missouri, and his work has led to the release of over 6,000 wrongfully incarcerated people.

You might expect Sullivan to be in good standing with the progressive activist community at Harvard. You would be wrong.

Earlier this month, more than 50 students attended a protest demanding that Sullivan resign his position as dean over alleged #MeToo failings. The Association of Black Harvard Women also wants him gone. "What has been made especially clear is that you have failed us," they wrote in a letter. "You have failed the Black women in this community, not only as one of the few Black Faculty Deans on campus but also as a community leader—someone who we respected and looked to for guidance."

Why Trump's Emergency Declaration is Illegal - Volokh Conspiracy : Reason.com

 Why Trump's Emergency Declaration is Illegal - Volokh Conspiracy : Reason.com: 

by Ilya Somin

The strongest legal argument raised in the various lawsuits against President Trump's attempt to use emergency powers to build his border wall is that declaring an emergency does not authorize him to spend money and condemn private property to build the wall. That's the conventional wisdom among most legal scholars and commentators. But it is also important to recognize that it is illegal to for Trump to declare a "national emergency" over this issue in the first place. That point is important for reasons that go far beyond the the specific case of the border wall. If the president can declare an emergency and tap a vast range of special emergency powers anytime he wants for any reason he wants, that makes a hash of the whole concept of an emergency, raises serious constitutional problems, and creates a dangerous concentration of power in the hands of a single person.

It makes much more sense to interpret the National Emergencies Act as only allowing an emergency declaration in a situation where an emergency actually exists - defined as some sudden crisis that cannot be addressed swiftly enough through ordinary political processes. By that interpretation, the situation at the border doesn't even come close to qualifying.

KEEP READING

Seven MPs leave the U.K.’s Labour party, citing anti-Semitism – ThinkProgress

As the once United Kingdom country walks the plank the British Labor Party has been hobbled by incompetence, narrow-mindedness, and now antisemitism.  Like much of the American white working class, the English working class has been hobbled by the racism ingrained by their years of serving the empire from which they gained table scraps. - gwc
Seven MPs leave the U.K.’s Labour party, citing anti-Semitism – ThinkProgress

Seven members of the United Kingdom’s left-wing Labour party have announced that they are leaving the party, owing, they said, to widespread anti-Semitic sentiment within the party.

One of the departing MPs, Luciana Berger, told reporters that she could not “remain in the party that I have today come to the sickening conclusion is institutionally anti-Semitic.”

The septet of MPs — which in addition to Berger include Chuka Umunna, Chris Leslie, Angela Smith, Mike Gapes, Gavin Shuker and Ann Coffey — have stated their intention to form an independent party, and have called upon other members of the Labour Party to join them.

In recent years, the Labour Party has had to to undergo something of a gut check as the party had continued to be dogged by claims of anti-Semitism within its ranks. Party leader Jeremy Corbyn has himself been called to task on this repeatedly. It’s unclear what, if anything, has been done to root out these elements from the party.

2 Liberal Democrats Are Promoting A Twist On 'Medicare For All' | HuffPost

2 Liberal Democrats Are Promoting A Twist On 'Medicare For All' | HuffPost: It would create a big government plan but keep a role for private insurance.

The legislation, which DeLauro and Schakowsky are calling “Medicare for America,” would create a comprehensive, government-run insurance program that would replace the big existing federal programs as well as the private insurance policies that people today buy on their own. But large employers would get to keep offering private coverage, leaving employees with the choice of sticking with their company plans or moving to the new public option, where they could potentially get much lower premiums and out-of-pocket expenses. 

Like any health care initiative, the DeLauro-Schakowsky bill would entail real and complicated trade-offs.

Ken Starr ~ the witch hunt NYRB

https://www.nybooks.com/articles/2019/03/07/kenneth-starr-hillary-clinton-presumed-guilty/
Sean Wilentz

Tribe: Pelosi has standing to sue Trump

https://www.rawstory.com/2019/02/nancy-pelosi-standing-sue-trump-federal-court-compelling-case-harvard-law-professor/

Pushing women’s issues at the Supreme People’s Court | Supreme People's Court Monitor

Pushing women’s issues at the Supreme People’s Court | Supreme People's Court Monitor: Outside observers reading Chinese official media, including reports on the Supreme People’s Court’s website, need special skills to identify significant developments. 

China: Courts recognize new causes of action for sexual harassment and employment discrimination // Supreme People's Court

China's civil justice system has inched ahead on recognition of women's rights.  The Supreme People's Court 关于增加民事案件案由的通知 (December 12, 2018 No. 344) gave notice to all courts - even the military courts - to recognize two causes of action for 1) disputes regarding right of equal employment opportunity   [平等就业权纠纷] in actions based on personal dignity and 2) for harm due to sexual harassment [性骚扰损害责任] in tort actions involving educational institutions. 

China's legal system is derived from the continental Codes, largely the German Civil Code which was, a century or more ago, imported via Japan.  China lacks a broad, express recognition of personal civil rights as found in the U.S. Civil Rights Act of 1964 specifying freedom from discrimination by race, color, sex, or national origin.   But China  has adopted laws that declare broad personal rights.  The SPC's notice shows it is satisfied that there is an adequate basis in law for the newly recognized employment discrimination and sexual harassment actions.

The SPC presumably grounds its action in the General Principles of Civil Law (2017).  That measure states at Article 109 "[t]he personal liberty and human dignity of a natural person is protected by law. [第一百零九条　自然人的人身自由、人格尊严受法律保护.]  These rights are, in Article 110, specified in language drawn from the 2009 Tort Law to include "life, bodily integrity, health name, reputation, honor, and the freedom to marry. [第一百一十条　自然人享有生命权、身体权、健康权、姓名权、肖像权、名誉权、荣誉权、隐私权、婚姻自主权等权利.]  

The General Principles establish a right of action at Article 120  that if one's "civil law rights and interests are infringed"  there is a "right to demand the tortfeasor bear tort liability".  [第一百二十条　民事权益受到侵害的，被侵权人有权请求侵权人承担侵权责任。]

Similarly the Labor Contract Law (2007) in Article 77 provides that if a worker's legal rights and interests are harmed there is a right to demand the relevant department to handle it according to law or demand arbitration or bring a lawsuit.  [第七十七条　劳动者合法权益受到侵害的，有权要求有关部门依法处理，或者依法申请仲裁、提起诉讼。]

This action assures that Courts will accept filings in such cases.  [China's courts had long stymied change by not accepting for filing cases that did not fit into recognized categories or that pose special management problems.  In 2014 the Communist Party's Central Committee directed that failures to accept cases for filing must change.  A new filing and registration system was adopted by the legislature and a plan went into effect in May 2015.  By December 2016 the Supreme People's court announced great progress had been made in that regard.]

Goldsmith on the emergency

https://www.lawfareblog.com/what-and-isnt-big-deal-trumps-executive-actions-related-border
These are not “whataboutism” points. I am not saying Trump’s emergency proclamation is just like past ones—it is not. I have not yet done a serious enough legal analysis to determine whether what Trump has done is lawful or unlawful. Nor have I done adequate analysis to determine whether Trump’s emergency proclamation combines precedents in ways that are more threatening to the constitutional order than the precedents themselves, though I tentatively do not believe it does. Nor am I saying Trump’s action will or should be upheld by courts

I simply wish to put Trump’s actions in context by emphasizing these points: (1) Congress has delegated enormous power to the president and given him enormous effective discretion about how to spend funds; (2) presidents have for many, many decades viewed these delegations expansively, especially in contexts touching on foreign relations, and in those contexts courts almost always agree; (3) the president’s statutory emergency powers are not materially different from other delegated powers that presidents have construed broadly and that courts have almost always upheld; (4) finding imaginative ways to act to achieve important public policies on which a president was elected, in the face of a recalcitrant Congress, is what modern presidents do, often to celebratory applause. 

William Barr’s Remarkable Non-Commitments About the Mueller Report - Lawfare

Robert Mueller had better continue his patter of reporting via detailed indictments and sentencing memoranda. - gwc
William Barr’s Remarkable Non-Commitments About the Mueller Report - Lawfare
by Jack Goldsmith and Maddie McMahon

Louisiana Supreme Court Disbars Attorney For Anonymous Online Posts – Legal Ethics in Motion

Louisiana Supreme Court Disbars Attorney For Anonymous Online Posts – Legal Ethics in Motion:  
by Michael Zilber, Editor - Legal Ethics in Motion

The Louisiana Supreme Court has disbarred a former Assistant United States Attorney for posting anonymous, online comments about cases being handled by his office.

From November 2007 through March 2012, Sal Perricone, an Assistant United States Attorney for the Eastern District of Louisiana, used five anonymous pseudonyms to post over 2,600 comments on the New Orleans Times-Piscayne website. On 100 to 200 of those posts, Perricone offered his strong opinion on cases with which either he or his office were affiliated. 

In one case that involved the prosecution of police officers over the shooting of unarmed civilians in the aftermath of Hurricane Katrina, Perricone wrote: “NONE of these guys should have ever been given a badge.” The officers were convicted but, the district court judge reversed the police  convictions, in a 129 page opinion that cited “grotesque prosecutorial misconduct,” referring in part to Perricone’s comments. 

In turn, the Office of Disciplinary Counsel filed a formal complaint against Perricone to the Louisiana Bar Disciplinary Board. The Disciplinary Board found that Perricone violated Louisiana Rules of Professional Conduct 1.7(a)(2), 3.6, 3.8(f), 8,4(a), and 8.4(d). Specifically, the Board found that Perriconeacted knowingly and intentionally, and that he had violated duties owed to his clients, his office, the public, and the legal system. The Board also found that Perricone’s misconduct caused actual harm to the perception of the legal profession and the reputation of the United States Attorney Office. On these grounds, the Board recommended Perricone’s disbarment. 

***

Read the full opinion here.

Is Threatening To Publish Bezos' Nude/Lewd Pics Criminal Blackmail? - Volokh Conspiracy : Reason.com

Is Threatening To Publish Bezos' Nude/Lewd Pics Criminal Blackmail? - Volokh Conspiracy : Reason.com: When is a threat to reveal something embarrassing blackmail, and when is it permissible? Plus a special Bill Cosby (but non-sexual-assault) connection.

Yale Law Journal - An American Approach to Social Democracy: The Forgotten Promise of the Fair Labor Standards Act

Torts Today: Yale Law Journal - An American Approach to Social Democracy: The Forgotten Promise of the Fair Labor Standards Act: Yale Law Journal - An American Approach to Social Democracy: The Forgotten Promise of the Fair Labor Standards Act by Kate Andrias

ABSTRACT. There is a growing consensus among scholars and public policy experts that fundamental labor law reform is necessary in order to reduce the nation’s growing wealth gap. According to conventional wisdom, however, a social democratic approach to labor relations is uniquely un-American—in deep conflict with our traditions and our governing legal regime. This Article calls into question that conventional account. It details a largely forgotten moment in American history: when the early Fair Labor Standards Act (FLSA) established industry committees of unions, business associations, and the public to set wages on an industry-by-industry basis. Alongside the National Labor Relations Act, the system successfully raised wages for hundreds of thousands of Americans, while helping facilitate unionization and a more egalitarian form of administration. And it succeeded within the basic framework of contemporary constitutional doctrine and statutory law.

By telling the story of FLSA’s industry committees, this Article shows that collective labor law and individual employment law were not, and need not be, understood as discrete regimes—one a labor-driven vision of collective rights and the other built around individual rights subject to litigation and waiver. It also demonstrates that, for longer than is typically recognized, the nation experimented with a form of administration that linked the substantive ends of empowering particular social and economic groups to procedural means that solicited and enabled those same groups’ participation in governance (to the exclusion of other groups). Ultimately, recovering this history provides inspiration for imagining alternatives to the current approach to worker participation in the American political economy and to administrative governance more broadly.

AUTHOR. Professor of Law, The University of Michigan Law School. 

John Dingell: My last words for America - The Washington Post

As John Dingell (D-MI), the longest serving member of Congress lay on his death bed - knowing the moment to be just that - he dictated a farewell message to his wife Rep. Deborah Dingell.  Read it.

John Dingell: My last words for America - The Washington Post: February 7, 2019 
Much as I have found Twitter to be a useful means of expression, some occasions merit more than 280 characters.
****

In my life and career, I have often heard it said that so-and-so has real power — as in, “the powerful Wile E. Coyote, chairman of the Capture the Road Runner Committee.”

It’s an expression that has always grated on me. In democratic government, elected officials do not have power. They holdpower — in trust for the people who elected them. If they misuse or abuse that public trust, it is quite properly revoked (the quicker the better).

I never forgot the people who gave me the privilege of representing them. It was a lesson learned at home from my father and mother, and one I have tried to impart to the people I’ve served with and employed over the years.

As I prepare to leave this all behind, I now leave you in control of the greatest nation of mankind and pray God gives you the wisdom to understand the responsibility you hold in your hands.

Torts Today: Louisiana can deny death row man his Imam - SCOTUS

Torts Today: Louisiana can deny death row man his Imam - SCOTUS:  
18A815 Dunn v. Ray (02/07/2019)

Hakim Ray, facing death wanted his imam with him a the moment of death.  Alabama offered him a Christian minister.  The 11th Circuit granted a stay to hear the religious freedom argument.  The Supreme Court 5-4 vacated the stay of execution.   “A court may consider the last-minute nature of an application to stay execution in deciding whether to grant equitable relief.”  Really.

Elena Kagan dissents, saying

Why couldn’t Ray’s imam receive whatever training in execution protocol the Christian chaplain received? The State has no answer. Why wouldn’t it be sufficient for the imam to pledge, under penalty of contempt, that he will not interfere with the State’s ability to perform the execution? The State doesn’t say. The only evidence the State has offered is a conclusory affidavit stating that its policy “is the least restrictive means of furthering” its interest in safety and security. That is not enough to support a  denominational preference. 

Supreme Court's Domineque Ray Ruling -- SCOTUS Upholds a Grave Violation of the First Amendment | National Review

Torts Today: Supreme Court's Domineque Ray Ruling -- SCOTUS Upholds a Grave Violation of the First Amendment | National Review:
by David French
Ray’s execution was just. The circumstances were not. The state’s obligation is to protect and facilitate the free exercise of a person’s faith, not to seek reasons to deny him consolation at the moment of his death.

Closing the Gap in Judicial Ethics

Closing the Gap in Judicial Ethics: Sarah Turberville, Director of The Constitution Project at POGO, testifies that Congress should pass a long-overdue measure to create a code of conduct for Supreme Court justices.

Trumpist judges prep ‘get out of racism free’ card – ThinkProgress

Trumpist judges prep ‘get out of racism free’ card – ThinkProgress

It's about time someone stood up for the most oppressed people in the country -- white Republican elected officials.

IAN MILLHISERFEB 4, 2019, 8:00 AM

Ny rpcs

http://www.nysba.org/CustomTemplates/SecondaryStandard.aspx?id=26633

Balkinization: Hardball, Again

Balkinization: Hardball, Again

Joseph Fishkin and David Pozen

Last spring, an eon ago in political time, we published an essay in the Columbia Law Review titled “Asymmetric Constitutional Hardball.”  The central claim of the essay is that over the past twenty-five years or so, an asymmetry has arisen between the two major parties in their propensity to push the constitutional envelope, straining unwritten norms of governance or disrupting established constitutional understandings.  Democrats and Republicans both do this.  But, the essay argues, Republicans lately do it more.  The essay is a deep dive into the potential causes and consequences of this asymmetry.

The Columbia Law Review is now publishing two responses to our essay, by David Bernstein and Jed Shugerman.  They come at us from opposite directions.  In “Constitutional Hardball Yes, Asymmetric Not So Much,” Bernstein argues (among other things) that there is no asymmetry.  Once one appreciates that Democrats bear as much responsibility as Republicans do for recent government shutdowns, and once one considers the unique lawlessness of the Obama Administration, the perception of partisan imbalance disappears.  In “Constitutional Hardball vs. Beanball,” Shugerman argues (among other things) that the asymmetry is even starker than our essay suggests.  Once one appreciates the fundamentally antidemocratic character of certain hardball tactics—the “beanball” kinds—used mainly by Republicans, the partisan imbalance turns out to be nothing short of terrifying.

We have just posted a draft of our reply to both Bernstein and Shugerman: “Evaluating Constitutional Hardball: Two Fallacies and a Research Agenda.”  In a nutshell, we try to show why Bernstein’s whole approach represents a step backward for the study of constitutional hardball whereas Shugerman’s represents a step forward.  Our reply also briefly discusses some political events from the past several months, at both the federal and state levels, that tend to reinforce and illustrate the asymmetry thesis.

Israel: A Regime of Discrimination

https://972mag.com/discrimination-regime-west-bank/139921/

A comparative study I conducted for Rabbis for Human Rights, which sought to rank discriminatory regimes globally, concluded that Israel’s rule over the West Bank is the third-most discriminatory regime in the world today.

The study (Hebrew) analyzes cases of institutional discrimination and aims at opening up a relatively new and potentially more effective understanding of the issue at hand. By comparing the situations in various regimes around the world, the study analyzes and compares the treatment of minorities in terms of: legal status, political opportunities, and suffrage (i.e. the right to vote and be elected or, in non-democratic regimes, the option of gaining senior positions in the political establishment), the right to freedom of movement and the freedom to live anywhere in the country, and the allocation of resources.