Rudy Giuliani's racist rants

https://www.cato.org/publications/commentary/rudys-racist-rants-nypd-history-lesson

57 notable quotables fro the Mueller report

https://twitter.com/tburages/status/1127559825276186625?s=09

How to winthe impeachment fight ~ Dan Pfeiffer

https://crooked.com/articles/a-plan-to-win-the-impeachment-fight/

Full transcript: Robert Mueller’s statement on the Russia investigation - POLITICO

Full transcript: Robert Mueller’s statement on the Russia investigation - POLITICO: Read Robert Mueller's full remarks.

Mueller’s Message: The Obstruction That Nearly Halted Criminal Case Against Russians - Just Security

by Ryan Goodman (NYU, former Special Counsel to the General Counsel, Dept. of Defense)
Mueller’s Message: The Obstruction That Nearly Halted Criminal Case Against Russians - Just Security: "Special Counsel Robert Mueller’s statement on Wednesday may reset the conversation about his investigation’s findings, and how Congress and the American public move forward from here. In deciding what points of the over 400-page document to highlight in under 10 minutes, Mueller gave Congress and the American public advice: Focus on the significance of two interlocking pieces...."

Special Counsel Robert Mueller’s statement on Wednesday may reset the conversation about his investigation’s findings, and how Congress and the American public move forward from here. In deciding what points in the over 400-page document to highlight in under 10 minutes, Mueller gave Congress and the American public advice: Focus on two interlocking pieces.

1. The gravity of Russia’s actions

The Russian government, including through its military, engaged in a “concerted” and “systematic” attack on our political system.

2. The gravity of the obstruction

The President of the United States engaged in obstruction that “strikes at the core of the government’s effort to find the truth and hold wrongdoers accountable.”

HowCongress crippled Andrew Johnson ~ David Priess

For the first time in the history of our country,” wrote the New York Independent, “the people have been witness to the mortifying spectacle of the president going from town to town, accompanied by the prominent members of the Cabinet, on an electioneering raid, denouncing his opponents, bandying epithets with men in the crowd, and praising himself and his policies. Such a humiliating exhibition has never before been seen, nor anything even approaching to it."
https://www.politico.com/magazine/story/2018/11/13/andrew-johnson-undermined-congress-cabinet-david-priess-book-222413

How Impeachment Proceedings Would Strengthen Congress’s Investigatory Powers - Just Security

Michael Stern -  a former counsel
to the U.S. House of Representatives
Nancy Pelosi and the House Democratic leadership should heed this well stated - and quite conventional - analysis by a former Senior Counsel to the House! Stern lays out a basic proposition: there is no font of power deeper than the House's exclusive power to define and charge an officer of the United States with a "high crime and misdemeanor".  The United States Supreme Court, like the Senate as both are currently constituted, is presumptively strongly inclined to protect the President.  The oversight and law-making power cannot, in this array, be counted on as sufficient to support the subpoenae and other investigatory steps the House has begun. - gwc
How Impeachment Proceedings Would Strengthen Congress’s Investigatory Powers - Just Security: By Michael Stern [former Senior Counsel to the U.S. House of Representatives (1996-2004)]

***Finally, initiating an impeachment inquiry provides the House with several “self-help” options to better secure the production of information. First, to the extent the House wishes to employ the remedy of inherent contempt (in which the House through its own agents would detain or fine a contumacious witness), this strategy would be most defensible in an impeachment proceeding where the House is exercising a judicial function. 

Second, if President Trump continues to defy or direct others to defy congressional subpoenas especially for appearance before an impeachment hearing, this in itself could support an article of impeachment. Third, the House could draw an adverse inference from the unjustifiable failure to produce evidence, finding that the president’s refusal to provide information reflects the fact that it would not be helpful to his case.

In short, initiating a formal impeachment proceeding, though not a silver bullet, would significantly enhance the House’s ability to gather relevant information in a timely fashion. Claims that oversight hearings are equally powerful are just wishful thinking.

Tomgram: James Carroll, The 12 Days of Christmas Bombing That Never End (for Me) | TomDispatch

Tomgram: James Carroll, The 12 Days of Bombing That Never End (for Me) | TomDispatch: null

Where does Trump get his odd ideas? Jonanthan Bernstein ~ Bloomberg

https://www.bloomberg.com/opinion/articles/2019-05-28/where-does-donald-trump-get-his-odd-ideas

‘Ship of Horror’: Discovery of the Last Slave Ship to America Brings New Hope to an Old Community - The New York Times

‘Ship of Horror’: Discovery of the Last Slave Ship to America Brings New Hope to an Old Community - The New York Times: Enslaved Africans smuggled into Alabama in the schooner Clotilda founded Africatown after the Civil War. Now residents want to raise the wreck from under the Mobile River as a symbol of pride.

End forced arbitration ~ Economic Policy Institute report

https://www.epi.org/publication/unchecked-corporate-power/

The forced arbitration epidemic ~EPI report

https://www.epi.org/publication/unchecked-corporate-power/

Yale Law Dean defends theory/activist law school education

"At its best, a J.D. is a thinking degree, a problem-solving degree, a leadership degree. Lawyering is a job that requires an enormous number of skills and literacies. You must possess a supple mind and sound judgment. You need to have institutional sense and sharp analytics. You must be literate and numerate. You must be able to distill an unruly, messy set of materials into a coherent form. You must question everything, especially your own priors. You must possess enough critical distance to evaluate a situation but enough human empathy to understand it. Your education must be rigorous enough to breed humility rather than hubris."Heather Gerken, Dean - Yale Law School

Resisting the Theory/Practice Divide, Harvard Law Review Forum, June 2019

I thoroughly agree.  In the fall of 1970 - my first semester of law school at Rutgers-Newark - I was part of a group of students reviewing the transcript of the Chicago 7 trial.  I wrote a point in the brief on appeal, which was the work of Arthur Kinoy who soon blocked unlawful FBI surveillance, leading to the FISA court.  In my second semester Ruth Ginsburg laid out her vision for the years ahead.  Paul Trachtenberg set in motion the landmark educational equity jurisprudence of the New Jersey Supreme Court.  I could go on ...and I have in the pages of the Fordham Urban Law Journal which published my essay People's Electric -Engaged Legal Education at Rutgers-Newark in the 1960's and 1970's. - gwc

'Democracy has been hijacked by white men': how minority rule now grips America

'Democracy has been hijacked by white men': how minority rule now grips America https://www.theguardian.com/us-news/2019/may/24/democracy-has-been-hijacked-by-white-men-how-minority-rule-now-grips-america?CMP=Share_AndroidApp_Blogger

Trump's treason rant

https://twitter.com/atrupar/status/1131672516622209024?s=09

Trump’s Palestine Investment Conference Is a Cynical Farce - Bloomberg

It's a trap - when the Palestinians refuse to surrender Trump and Netanyahu will claim that the Palestinians walked away from a great deal.  Next will come more land seizures and more settlements. - gwc
Trump’s Palestine Investment Conference Is a Cynical Farce - Bloomberg:
by Hussein Ibish
 It's hard to imagine a more pointless exercise than a Palestinian investment conference without Palestinians. Talk about staging Hamlet without the prince! But that's exactly what the Trump administration is cooking up, to be held June 25-26 in Bahrain. And it's emblematic of the predetermined, intentional failure of its approach to brokering Israeli-Palestinian peace. The "Peace to Prosperity" workshop on investing mainly in Palestinian areas under Israeli occupation is meant to unveil the economic component of the U.S. peace plan, leaving political issues for later. U.S. officials say they hope for up to $68 billion in pledges***

James Carroll`s call to abolish the priesthood is misguided ~

Michael Sean Winters lambasts James Carroll's call to abolish the priesthood.   Carroll has long idealized the early Church and disparaged the Church triumphant.  I'm a bit of both.
But to me the Catholic Church remains the most valuable organization in the world.
https://www.ncronline.org/news/opinion/distinctly-catholic/james-carrolls-call-abolish-priesthood-misguided-and-tiresome

A.G. William Barr's defiant address at ALI Annual Meeting

When a trial judge issues a decision it binds the parties alone.  But if an administrative rule or action is enjoined it is often held to be nationwide by District Judges. That forces the government to appeal or acquiesce.  In the 1980's the Reagan administration adopted a policy of non-acquiescence in rulings by federal courts striking aspects of DHHS policies intended to reduce the number of people receiving Social Security disability benefits.  That forced individuals adversely affected by the policy to appeal, or resort to class actions which federally funded Legal Services agencies were barred from undertaking.

Attorney General Barr sees a converse problem: single judges blocking a President's signature policies. - gwc

At American Law Institute Annual Meeting William Barr, A.G. denounces issuance of nationwide injunctions by District Judges
***This saga highlights a number of troubling consequences of the rise of nationwide injunctions:

First, these nationwide injunctions have frustrated presidential policy for most of the President’s term with no clear end in sight.  We are more than halfway through the President’s term, and the Administration has not been able to rescind the signature immigration initiative of the last Administration, even though it rests entirely on executive discretion.  The Justice Department has tried for more than a year to get the Supreme Court to review the lower-court decisions ordering us to keep DACA in place.  But the Court has not granted any of those requests, and they languish on its Conference docket.  Unless the Court acts quickly and decisively, we are unlikely to see a decision before mid-2020 at the earliest­—that is, right before the next presidential election.  It is hard to imagine a clearer example of the stakes of nationwide injunctions. 

Second, these injunctions have injected the courts into the political process.  The first injunction from the Northern District of California came down on January 9, 2018, in the middle of high-profile legislative discussions.  Hours earlier that same day, President Trump allowed cameras into the Cabinet Room to broadcast his negotiations with bipartisan leaders from both Houses of Congress over the DREAM Act, border security, and broader immigration reform.  Of course, once a district judge forced the Executive Branch to maintain DACA nationwide for the indefinite future, the President lost much of his leverage in negotiating with congressional leaders who wanted him to maintain DACA nationwide for the indefinite future.  Unsurprisingly, those negotiations did not lead to a deal.

So what have these nationwide injunction wrought?  Dreamers remain in limbo, the political process has been pre-empted, and we have had over a year of bitter political division that included a government shutdown of unprecedented length.  Meanwhile, the humanitarian crisis at our southern border persists, while legislative efforts remain frozen as both sides await the courts’ word on DACA and other immigration issues.

Third and finally, these nationwide injunctions inspire unhealthy litigation tactics.  Last May, Texas and others sued for a nationwide injunction against the DACA policy—in essence, to enjoin the government from complying with the other nationwide injunctions.  These States were fighting fire with fire.  For their Attorneys General as advocates, that is understandable.  But if we consider how things ought to work, it is perverse.  Rather than an orderly pattern of litigation in which the Government loses some cases and wins others, with issues percolating their way through the appellate courts, we have an inter-district battle fought with all-or-nothing injunctions.

Fortunately, Judge Hanen spared us the pain of dueling injunctions.  Unfortunately, however, the new status quo of a DACA policy supported only by injunction has persisted.  

Josh Marshall's epic list of books

https://talkingpointsmemo.com/edblog/joshs-epic-list-of-books

How China's Supreme Court Governs: Chinese judicial documents (1) | Supreme People's Court Monitor

Judicial documents published by the
Supreme Peoples Court

Press commentary on China's legal system in the U.S. focuses on a handful of contentious or problematic issues: such as the growing power of the President Xi Jinping, the Sinicization campaign in Xinjiang, or disputes regarding intellectual property and industrial espionage.  But there is an important but much less attention getting development of the Chinese legal system which can be understood only by a more granular look.  Fortunately we have Susan Finder's Supreme Peoples Court Monitor, and the NPC Observer which follows legislative activity.

In the U.S. we focus on the courts as expositors of statutory developments, and broad principles.  But China's Supreme Court does much of its work via administrative directives and policy statements to effectuate national policy.  There is a wide variety of such documents - interpretations, rules, notices, guiding cases, etc.  These are part of an increasingly transparent system in which thousands of decisions by lower courts can be found online.  None of this should be understood as exercises of the judicial independence to which we aspire (and sometimes get).  Rather they are expressly forms of policy implementation designed to increase the effectiveness of government in an authoritarian rule of law regime. 

Susan Finder discusses some of the mechanisms in this new post. - gwc

Chinese judicial documents (1) | Supreme People's Court Monitor: 
by Susan Finder
I recently participated in an academic conference in which one speaker discussed Chinese judicial documents (other than judicial interpretations).  The speaker’s view was very critical of them…

***

It is a fact that the Supreme People’s Court (SPC) issues a broad range of documents that guide the lower courts in addition to its judicial interpretations. The SPC creates and transmits to the lower courts new judicial policy in the form of an “opinion” (意见), which is also a type of Party/government document.  This same term is used for documents jointly issued by the SPC and institutions not authorized to issue judicial interpretations. This blogpost focuses solely on SPC policy documents.

The SPC classifies opinions as “judicial normative documents”  (司法文件 or 司法规范性文件(the title of this Wechat public account) and sometimes judicial policy documents” (司法政策性文件).  As I’ve written before, this fuzzy use of terminology is not unusual. These documents are issued with the identifier “法发” (fafa), indicating that they have been approved by the judicial committee of the SPC or one or more senior SPC leaders.  Transparency is better than before (and the SPC has issued documents encouraging greater transparency) but there is no strict publication requirement, unlike judicial interpretations.

 The FTZ Opinion is an example of how the SPC supports the Party and government by issuing documents to support important initiatives. This is a subject that I have written about on this blog before. These SPC policy documents signal an evolution of judicial policy, establish new legal rules and direct the lower courts. Lower courts implement these measures in various ways, including in their court judgments or rulings and to further implement SPC judicial policy documents.  Local courts may issue implementing guidance, as SPC policy is intended to be a framework under which local courts issue more specific measures to deal with specific local issues.

The FTZ Opinion signals evolving judicial policy to FTZ courts in a number of areas, including on civil and commercial law issues. For example, it states that courts should
support FTZ finance leasing companies and should respect the agreement of cross-border parties regarding jurisdiction and governing law. It states that a finance lease contract shall not be determined to be null and void because relevant procedures had not been performed.

The drafting of these judicial policy documents, such as the FTZ Opinion, follow a drafting process similar to judicial interpretations. The usual practice in drafting judicial interpretations is for the SPC to engage in extensive research and fieldwork, consult with related institutions within the SPC and external institutions when relevant (another academic article stuck in the production pipeline will describe the process in more detail).

KEEP READING

The Vicious Entrenchment Cycle: Thoughts on a Lifetime with a Republican-Controlled Court - LEDERMAN - Balkinization

I had the privilege of working with Arthur Kinoy and Morton Stavis while at Rutgers Law School.  In the '60's and '70's they were the architects of a remarkable string of victories in the U.S. Supreme Court.  They worked on the assumption that every member of the Court could be reached, so confident were they of their arguments' foundations and the good faith of the members of the court.  Today I try to take the same stance as a teacher.  But it's getting harder to sustain. - gwc 
Balkinization: The Vicious Entrenchment Cycle: Thoughts on a Lifetime with a Republican-Controlled Court

By Marty Lederman (Georgetown Law) (first published October 16, 2018)

On May 15, 1969, Justice Fortas resigned from the Supreme Court, thereby ending a seven-year period in which a 5-4 majority of the sitting Justices had been appointed by Democratic Presidents.  I had just turned eight years old.  I’m now almost 58.  And yet that day in May 1969 remains the last moment in time that a majority of the Court was appointed by Democrats.  That’s right:  By the time the Court’s current Term ends in June, it will have been more than 50 years of GOP-appointed control.  

The appointment of Merrick Garland should have brought an end to that extraordinary streak.  Retaining control of the Court, however, has become an article of Republican faith--hardly surprising when it's become a bulwark of theirs, a virtual background assumption, for fully half a century.  And now, thanks to Mitch McConnell's deviousness, tactical brilliance and tenacity, it appears entirely possible that it might be another 50 years (or perhaps even longer) until we see another Democratic majority.  A full century of Republican control is not hard to imagine.  (And how’s this for a (related) factoid?:  In only seven of the past 108 years (1946-1953) has the Chief Justice of the United States been a Democrat who did not fight on behalf of the Confederacy.) 

It would be one thing, of course, if the Presidency and the Senate had been Republican-dominated for all of my adult life:  In that case, such GOP dominance of the Court over many generations might be alarming (and frustrating), but would hardly be surprising.  But Democratic Presidents have served five terms since 1969, and have won a majority or plurality of the popular vote in seven of the twelve elections in that period--including in six of the past seven elections.  Democrats have also secured a majority of the Senate in more than half of the 25 Congresses since Fortas's resignation—including at least a couple of huge majorities.  Yet nevertheless, the Court has remained, and will continue to remain, in GOP control for decades on end.

This stark contrast between electoral and judicial ratios is especially pronounced today.  When Justice Kavanaugh takes the bench he will solidify a very strong, and unusually cohesive, five-Justice Republican majority, only one member of which (Justice Thomas) was appointed by a Republican President who entered office with a majority or plurality of the popular vote.  Indeed, in that 27-year span, which covers the entire tenure of all of the current Justices, a Republican President has won the popular vote in just one election (2004, of course, which resulted in the Roberts and Alito appointments). 

KEEP READING

Pardoning war crimes dishonors the troops Andrew Exum

Thousands of soldiers have successfully led combat units without committing atrocities. Pardoning war crimes dishonors them. MAY 13, 2019 Andrew Exum U.S. deputy assistant secretary of defense for Middle East policy from 2015-2016

Outgoing Harvard faculty dean to leave Harvey Weinstein defense team // Boston Globe

Ronald Sullivan reports that the trial judge could not accommodate his request to move the trial date to avoid conflict with his fall teaching duties.  Whatever the reason the taste left is that Sullivan was pushed out of his job as Dean of a residential college and the Weinstein defense by student protesters who did not accept the principle that affording a defense to someone charged even with a heinous crime serves the interests of justice. -gwc

Outgoing Harvard faculty dean to leave Harvey Weinstein defense team 

The 600 Billion Dollar China IP Echo Chamber | China IPR - Intellectual Property Developments in China

The 600 Billion Dollar China IP Echo Chamber | China IPR - Intellectual Property Developments in China: “Most people use statistics the way a drunkard uses a lamp post, more for support than illumination.”  Mark Twain
by Mark Cohen
What are the losses due to “IP Theft” from China? On a recent trip to Washington, DC, I heard the range of $300 billion to $600 billion repeated from various sources without any critical gloss. These numbers have taken on a greater legitimacy than they likely deserve, in terms of capturing the scope of US concerns, the magnitude of the loss and shaping the Trump administration’s unilateral retaliation.

Despite its refusal to place foster children with same-sex couples is Philadelphia Catholic Social Services entitled to a City contract ?

Is Catholic Social Services entitled to a City contract despite its refusal to place foster children with same-sex couples?

Philadelphia Catholic Social Services has argued that the City’s failure to award it a new contract for adoption and foster care services targets CSS for its religious beliefs.  The agency refuses to place children in need with same-sex couples.  The Third Circuit Court of Appeals has upheld the denial of a preliminary injunction. It embraces the perspective as phrased by the ACLU lawyers for intervenor Philadelphia Family Pride that “the  fact that CSS’s non-compliance with the City’s non-discrimination requirements is based on its religious beliefs does not mean that the City’s enforcement of its requirements constitutes anti-religious hostility.”

An outbreak of yellow fever in 1797 spurred the formation of what is now Catholic Social Services of the Roman Catholic Archdiocese of Philadelphia.  Rooted in the corporal works of mercy a principal mission of CSS is the care of vulnerable children.  But what began as a voluntary mission of mercy has been transformed.  Today the care of foster children is a highly regulated public service much of which is carried out by private agencies which contract with cities, towns and states.   Catholic Social Services was one of thirty agencies that contracted with the City of Philadelphia for foster care services.  Unable to reach an agreement with the City, the CSS contract expired.  It has not been renewed.

CSS objects to the terms set by City non-discrimination law.  It accepts that it is subject to governmental oversight but an element of the Roman Catholic Catechism leads it to refuse to place children in need with same sex couples.  CSS will only certify foster parents who are either married or single; it will not certify cohabiting unmarried couples, and it considers all same-sex couples to be unmarried, according to the opinion of a Third Circuit panel of Judges Ambro, Scirica, and Rendell.  The court affirmed the District Judge’s denial of a preliminary injunction in Fulton and Catholic Social Services v. City of Philadelphia.

There is no record of any same sex couple challenging the agency but pursuant to a 2018 City Council resolution demanding contractors comply with the Fair Practices Ordinance the City did not renew the CSS contract.  The Archdiocesan agency sought “an order requiring the City to renew their contractual relationship while permitting it to turn away same-sex couples who wish to be foster parents.”

The Circuit Court asked did Philadelphia “have the authority to insist, consistent with the First Amendment and Pennsylvania law, that CSS not discriminate against same-sex couples as a condition of working with it to provide foster care services? Or, inversely, has CSS demonstrated that the City transgressed fundamental guarantees of religious liberty? At this stage and on this record, we conclude that CSS is not entitled to a preliminary injunction.”

The issue attracted a battalion of amici the list of which consumes the first several pages of the opinion.  Southern and border states are countered by California, Illinois, New York, New Jersey and every New England state except New Hampshire.  Affiliates of many religious organizations and non-profits divide along generally familiar lines. The cultural divide in the country is amply evidenced.

Though CSS will work with homosexuals as foster parents it will only certify foster parents who are either married or single; it will not certify cohabiting unmarried couples, and it considers all same-sex couples to be unmarried.  

The Catholic Church, despite a recent softening of papal tone, still holds in its catechism that homosexuality is “inherently disordered”.  No one challenges its right to adhere to that doctrine.  Nor does anyone assert that the Archdiocese is acting unreasonably in applying its doctrine.  What is at issue is whether the City’s nondiscrimination policy is a “neutral, generally applicable law” for which CSS is not entitled to an exception.   The Circuit relies on the opinion articulated by Justice Antonin Sclaia in  Employment Division  v. Smith, 494 U.S. 872, 877-78 (1990). The court there held that a general law forbidding the use of the hallucinogen mescaline could lawfully be applied to bar its use in a Native American spiritual ritual.

In the years since Employment Division v. Smith the nation’s cultural divides have deepened rather than abated in many respects.  In this regard the Catholic Church’s traditional view has become a distinctly minority view.  But that is irrelevant to the CSS claim that the City should be compelled to issue a new contract similar to the one which has expired.  As in other claims under 42 USC 1983 CSS must show a causal link between its religious character and the adverse action taken.   The opinion by Judge Adamo explains that “a challenger under the Free Exercise Clause must show that it was treated differently because of its religion. Put another way, it must show that it was treated more harshly than the government would have treated someone who engaged in the same conduct but held different religious views.”

In this regard the City declared its “respect [for CSS’s] sincere religious beliefs, but your freedom to express them is not at issue here where you have chosen voluntarily to partner with us in providing government-funded, secular social services.”  Having lost the first round The Becket Fund which brought the litigation will certainly press the litigation.  But because the City imposes the same restrictions on all its contractors CSS has failed to prove the hostility to religious expression that is required.  Underlying the challenge is the view that the refusal to provide services based on a vision of sin is entitled to accommodation.  But the case does not present the narrower question of whether a government agency can allow an accommodation which permits a contractor to offer services on a discriminatory basis. We have firmly decided that question in the negative regarding race, and gender. But with Anthony Kennedy in retirement it cannot be stated with confidence how the enhanced high court conservative majority will respond.  Their vision of sin may lead them to the view that Free Exercise requires the City to bend.  
- George Conk
May 11,2019

Gifted and Talented: The Other Segregation

https://www.theatlantic.com/education/archive/2019/04/gifted-and-talented-programs-separate-students-race/587614/

Harvard Drops Harvey Weinstein Lawyer as a Faculty Dean - The New York Times

Harvard Drops Harvey Weinstein Lawyer as a Faculty Dean - The New York Times: Students in Winthrop House had called for the resignation of Robert S. Sullivan Jr., a law professor. He and his wife were the first African-American faculty deans in Harvard’s history.

This decision is troubling.  Robert Sullivan is a hero lawyer, in my opinion.  Closest to home for me was his role in designing and overseeing the late Brooklyn D.A. Kenneth Thompson's Conviction Review program which scrutinized convictions to find those unjustly jailed.

The decision he made to become part of the now notorious Hollywod producer's defense team provoked bitter criticism  among many students.  In my opinion Harvard College should have stood by Sullivan and his wife - as the law school did. - gwc

Black and Latino players skip white house

White House ceremony honoring Red Sox awkward from the start https://www.bostonglobe.com/sports/redsox/2019/05/09/white-house-ceremony-honoring-red-sox-awkward-from-start/QQfpM7oADJxP1ex5NsoqHJ/story.html

Why Judges Need Good law Clerks - Legal Skills Prof Blog

Legal Skills Prof Blog
by E. Scott Fruehwald

Here is a question I've never thought about before: Are lawyers citing the best cases to courts?  In other words, do the courts use the cases cited in the briefs, and how often do the courts use cases not mentioned in any brief?  The answer may surprise you!

Kevin Bennardo & Alexa Chew (UNC), Citation Stickiness.

"This Article is an empirical study of what we call citation stickiness. A citation is sticky if it appears in one of the parties’ briefs and then again in the court’s opinion. Imagine that the parties use their briefs to toss citations in the court’s direction. Some of those citations stick and appear in the opinion — these are the sticky citations. Some of those citations don’t stick and are unmentioned by the court — these are the unsticky ones. Finally, some sources were never mentioned by the parties yet appear in the court’s opinion. These authorities are endogenous — they spring from the internal workings of the court itself.

In a perfect adversarial world, the percentage of sticky citations in courts’ opinions would be something approaching 100%. The parties would discuss the relevant authorities in their briefs, and the court would rely on the same authorities in its decision-making. Spoiler alert: our adversarial world is imperfect. Endogenous citations abound in judicial opinions and parties’ briefs are brimming with unsticky citations.

So we crunched the numbers. We analyzed 325 cases in the federal courts of appeals. Of the 7552 cases cited in those opinions, more than half were never mentioned in the parties’ briefs. But there’s more — in the Article, you’ll learn how many of the 23,479 cases cited in the parties’ briefs were sticky and how many were unsticky. You’ll see the stickiness data sliced and diced in numerous ways: by circuit, by case topic, by an assortment of characteristics of the authoring judge. Read on!"

Let me repeat the key point in the abstract: "We analyzed 325 cases in the federal courts of appeals. Of the 7552 cases cited in those opinions, more than half were never mentioned in the parties’ briefs."  This is astounding.  It raises the question of why lawyers aren't doing a better job of citing the essential cases to the court.  And there's more: "In our 325-case data set, the parties cited 23,479 cases. Of those, only 16% were later cited by the courts in their opinions—or to use our nomenclature, only 16% of the cases cited in the briefs were sticky."

Over 400 former federal prosecutors say Trump committed indictable offenses

400 former federal prosecutors say Trump committed indictable offenses
“STATEMENT BY FORMER FEDERAL PROSECUTORS” by DOJ Alumni

We are former federal prosecutors. We served under both Republican and Democratic administrations at different levels of the federal system: as line attorneys, supervisors, special prosecutors, United States Attorneys, and senior officials at the Department of Justice. The offices in which we served were small, medium, and large; urban, suburban, and rural; and located in all parts of our country.

Each of us believes that the conduct of President Trump described in Special Counsel Robert Mueller’s report would, in the case of any other person not covered by the Office of Legal Counsel policy against indicting a sitting President, result in multiple felony charges for obstruction of justice.

The Mueller report describes several acts that satisfy all of the elements for an obstruction charge: conduct that obstructed or attempted to obstruct the truth-finding process, as to which the evidence of corrupt intent and connection to pending proceedings is overwhelming. These include:

· The President’s efforts to fire Mueller and to falsify evidence about that effort;

· The President’s efforts to limit the scope of Mueller’s investigation to exclude his conduct; and

· The President’s efforts to prevent witnesses from cooperating with investigators probing him and his campaign

KEEP READING

Zogby : KushnerlTrump plan is no way out. - Lobelog

Even if there is a “deal of the century” (and I’m still an agnostic on that question), we can be certain that it won’t: end the occupation of the lands seized in the 1967 War; create true Palestinian sovereignty and control over their land and resources; give Palestinians the opportunity to freely and independently conduct commerce with the outside world; recognize the rights of Palestinian refugees; or do anything to reunite the areas now called “East Jerusalem” to Palestinian control.?Finally, the “hint” that the deal will throw money at the Palestinians to “make their lives better” is as insulting as it is pointless. But then, I’m not even sure that’s real.
https://lobelog.com/playing-20-questions-to-figure-out-the-deal-of-the-century/

Protests of Harvard professor's defense in rape trial of Hollywod producer persist - Boston Globe

Harvey Weinstein trial is causing a legal drama at Harvard - Boston Globe

by Stephanie Gilbert // Boston 

In the tumultuous few months since students began objecting to Harvard Law professor Ronald S. Sullivan Jr.’s decision to defend Hollywood producer Harvey Weinstein at his rape trial, the college has been reviewing the living climate at Winthrop House, the residential community he leads as faculty dean.

But, suffice it to say, the climate is anything but copacetic.

On Friday, students dressed in red occupied the Winthrop House dining hall to “reclaim it as a safe space” for survivors of sexual assault. In recent weeks, the house was spray-painted with #MeToo graffiti and papered with illustrated fliers that Sullivan called “racially offensive.” It was also the site of a tense dining hall interaction between a student who started the protests against Sullivan and an adult tutor perceived to be loyal to him. (Each called police, alleging harassment by the other.)And now — as may have been inevitable all along — a dispute rooted in the campus controversy over Weinstein’s high-powered legal representation is headed to court. Two tutors who live in Winthrop House are suing another faculty member for defamation connected to the Sullivan controversy, and their lawyer — Sullivan’s sometime legal partner — has subpoenaed the student newspaper for all communications concerning Sullivan.

“I’ve never seen anything like this,” said Amelia Y. Goldberg, a Harvard senior and an activist with a group called Our Harvard Can Do Better, which has pushed for Sullivan’s removal as faculty dean. She called the steps taken against student activists and their supporters “intimidation and retaliation tactics.”  KEEP READING

The forgotten history of how Abraham Lincoln helped rig the Senate for Republicans – ThinkProgress

The forgotten history of how Abraham Lincoln helped rig the Senate for Republicans – ThinkProgress
by Ian Millhiser

Ian Millhiser: DeVos ignorance reveals our basic divide about role of government

Ian Mllhiser explains that the central divide in our history is between the "govern least" approach and the government most effectively approach. Millhiser takes aim at a typical bit of DeVos nonsense to introduce a clarifying view of American legal history" https://thinkprogress.org/betsy-devos-has-no-idea-who-alexander-hamilton-was-9fdb117d2a7e/

I’m honored to receive the Alexander Hamilton Award from @ManhattanInst tonight. And, as I said in my speech tonight, I will continue to honor this award’s namesake by fighting for freedom. Freedom from government. Freedom for teachers. Freedom for each one of America’s students. pic.twitter.com/mxQxZsMmf5

— Betsy DeVos (@BetsyDeVosED) May 2, 2019

Kamala Harris presses Attorney General Barr on conflicts of interest

Senator Kamala Harris (D-California) was the last - and perhaps most effective - questioner of Attorney General William Barr.
Of particular note to me was her pressing the A.G. on the fact that Deputy A.G. Rod Rosenstein participated in the decision not to charge Trump with obstruction of justice. This despite the fact that Rosenstein at Trump's request drafted a memo stating grounds to fire the FBI Director.  Rosenstein was thus a principal  witness in the decision to fire James Comey which Trump later said was in order to terminate the investigation of his campaign's connection to Russian hacking into the Democratic Party's computers during the 2016 presidential campaign. The lawyer-witness rule RPC 3.7 bars such participation- gwc

Complete exchange between @senkamalaharris and Attorney General William Barr. pic.twitter.com/EzydIr8twh

— CSPAN (@cspan) May 1, 2019

WeChat spreads misinformation re SHSAT

https://www.cjr.org/tow_center/shsat-chinese-language-misinformation-new-york-schools.php

How Palestinians Should React To Trump’s Peace Plan – The Forward

How Palestinians Should React To Trump’s Peace Plan – The Forward: Palestinians should say yes to the opportunity of making peace with Israel, but must fight for the principals of the 1993 DOP agreement.
by Hussein Ibish

***They need to be very clear that what they are saying “yes” to is any opportunity to talk with Israel and the US, but not to the substance of any such proposal. When the plan is presented, it will surely be floated with the outline of the series of talks designed to implement it. Palestinians should show up at every opportunity but make it crystal-clear that they are participating specifically to remind Israel, the United States and the whole world that both countries are already signatories to the 1993 DOP. Its framework logically leads only to a Palestinian state, and doesn’t permit several of the most pernicious recent actions, specifically the American recognition of all of Jerusalem as Israel’s capital.

Read more: https://forward.com/opinion/423659/how-palestinians-should-react-when-trump-unveils-his-peace-plan/