Wednesday, December 30, 2020

EU-China Leaders' "standing firm - delivering results"



EU-China Leaders' meeting Statement of European Union December 30, 2020

This Agreement is of major economic significance and also binds the parties into a values-based investment relationship grounded in sustainable development principles. Once in effect, the CAI will help rebalance the trade and investment relationship between the EU and China. China has committed to an unprecedented level of market access for EU investors, giving European businesses certainty and predictability for their operations. The Agreement will also significantly improve the level playing field for EU investors by laying down clear obligations on Chinese state-owned enterprises, prohibiting forced technology transfers and other distortive practices, and enhancing transparency of subsidies. EU companies will henceforth benefit from fairer treatment when competing in the Chinese market.

The Agreement also includes important commitments on environment and climate, including to effectively implement the Paris Agreement, and on labour standards. China has committed to effectively implement ILO Conventions it has ratified, and to work towards the ratification of the ILO fundamental Conventions, including on forced labour.

On the EU side, further work will now be undertaken in accordance with its legal rules and procedure to sign, ratify and conclude the Agreement. The two sides will aim to conclude negotiations on investment protection within two years of the signature of CAI.

Ensuring successful implementation of this Agreement once concluded will require high level and sustained political engagement with China. The Agreement also provides for a robust enforcement and monitoring mechanism .The European Commission will monitor the implementation of the commitments in the Agreement on the EU's side.

Christmas Message - Michael Higgins - Ireland's President

In a reminder of what it's like to have a President who represents the better angels of a country, here is Ireland's Michael Higgins paying tribute to Samaritans Ireland.


Why immigration doesn't reduce wages - Noahpinion

In this post, I’m going to explain why immigration doesn’t lower wages for native-born people (except possibly a little bit, in a few special circumstances). But before I do that, there’s one thing you really have to understand: No one is going to be persuaded by this post. There are two reasons for this. First, people don’t really believe social science evidence. It took years and years of empirical research — solid results, almost all pointing in the same direction — just to shift academic economists’ opinions on the effects of minimum wage. The average person, not being an academic economist, has even less of an idea of how reliable social science research is. Second, in my experience, anti-immigration people are completely set in their belief that immigration should be restricted. It’s their fixed north star. The justifications change — Lower wages! Environmental destruction! Brain drain! Rule of law! Cultural change! — but the policy conclusion never wavers. They know what they want to do. So this post isn’t going to persuade anti-immigration people to change their stance, and it’s probably not going to persuade many normies to be up in arms about the need to let in more immigrants, either. But it’s still important to write, and not just because I’m a stubborn S.O.B. who will die face-down in the muck fighting for The Empirical Evidence. It’s because in another 20 years or so, when America’s current freakout over identity and nationhood has passed, we’re hopefully going to be ready to let in a bunch of immigrants again. And when that time finally comes, these arguments will matter.

Burglary - lock'em up?

 The power of the home/castle image is great.  Antonin Scalia used it in defending his view of the Second Amendment as a personal right.  Recent surveys have show that most people say Yes to the idea of shooting someone who breaks into their house.  And locking 'em up...No Problem.But here's a public defender on how burglary is sometimes charged,



National Catholic Reporter's top 10 most read opinion and commentary articles of 2020 | NCR Reporter



NCR's top 10 most read opinion and commentary articles of 2020 | National Catholic Reporter
# 1 Fordham's Fr. Bryan Massingale
"This is where things may get uncomfortable for most of you, who I assume (and hope) will be white," Massingale writes. "At some early age, you realized that no matter how bad things got for you, at least you would never be black. And it dawned on you, though you rarely consciously say it, that you would never want to be black. Because you realized, even without being explicitly told, that being white makes life easier. Even if you have to do some hard work along the way, at least you don't have to carry the burden of blackness as a hindrance."

5. AOC is the future of the Catholic Church

In July, U.S. Rep. Alexandria Ocasio-Cortez made a speech on the House floor responding to an incident on the steps of the U.S. Capitol in which Rep. Ted Yoho of Florida verbally assaulted her.

As NCR executive editor Heidi Schlumpf listened to her 10-minute address, she was struck by how often it referenced Catholic values, as Ocasio-Cortez universalized the need to treat all people with dignity and respect, noting that Yoho's behavior gave "permission to other men to do that to his daughters."

"Perhaps such Catholic references are not surprising, since the rock-star millennial leader of the left grew up Catholic and even wrote about how her faith influences her views on public policies such as mass incarceration, for a Catholic magazine," Schlumpf writes. "As a young Latina, Ocasio-Cortez represents the demographic future of the Catholic Church."

6. On a call with President Trump, Cardinal Dolan reveals his true colors

President Donald Trump held a phone call in April with an estimated 600 Catholics, among whom were bishops and Catholic school superintendents. One participant was New York Cardinal Timothy Dolan, "who seems to like to boast about his relationship with Trump almost as much as Trump likes to boast about himself," writes former longtime NCR columnist Jamie Manson.

In the call, Trump emphasized his support for the pro-life movement and hailed his support for school choice, specifically for Catholic schools. He also reiterated all his accomplishments meant to appease Catholic bishops.

Dolan, according to reports, responded saying the president was a "great gentleman" and a "great friend of mine."

"Yes, Dolan and other bishops are probably desperate for funding for Catholic schools, but prostituting the church to Trump is the worst possible solution to save an institution that is supposed to teach morality and hope to our children," Manson writes.


Thomas Merton's writings on race resonate, gain renewed attention in 2020 | National Catholic Reporter



Thomas Merton's writings on race resonate, gain renewed attention in 2020 | National Catholic Reporter
By Peter Feuerherd
***In "Letters to a White Liberal," Merton wrote that unless the nation came to grips with racism, "the survival of America itself is in question." In a reference to the Rev. Martin Luther King Jr., Merton wrote using early 1960s language that the civil rights leader "clearly spelled out the struggle for freedom not as a struggle for the Negro alone, but also for the white man."

Merton added, "the sin of white America has reached such a proportion that it may call down a dreadful judgment, perhaps total destruction, unless atonement is made." He added, citing the long history of slavery and discrimination, that "white society has sinned in many ways. It has betrayed Christ."

And, in an appeal to white Christians, he wrote: "Most of us are congenitally unable to think black, and yet that is precisely what we must do." He called upon Catholic leaders, including bishops, to go beyond the usual responses of the era and embrace the call for change no matter the pushback: "We still want to please everyone with soft words and pleasant generalizations, which we convince ourselves are necessary for charity," Merton wrote.

Anne Pearson, a student in Hillis' class on Merton, told NCR that the monk's words spoke to her as a supporter of the demonstrations in Louisville surrounding the police killing of Breonna Taylor this past March.




The controversy over “ethnonationalism” and Trump nominee Steven Menashi - Vox

Steven Menashi - now ensconced for life at the 2d Circuit Court of Appeals - was on the panel that just decided on remand to hold onto Agudath Israel and Brooklyn Diocese v. Cuomo, the case enjoining Andrew Cuomo's Executive Order restraining church and synagogue attendance. - GWC
The controversy over “ethnonationalism” and Trump nominee Steven Menashi - Vox
By Ian Millhiser (October 2019)

Steven Menashi, President Donald Trump’s judicial nominee for the United States Court of Appeals for the Second Circuit, began his writing career at the Dartmouth Review, the campus conservative publication that incubated professional trolls such as Laura Ingraham and Dinesh D’Souza. Menashi used this platform to denounce LGBTQ rights groups, mock “Take Back The Night” marches protesting campus rape, and defend a fraternity that threw a “ghetto party.”

He later became a law professor who may want to dismantle much of the government, a top aide to Education Secretary Betsy DeVos, and a lawyer in the Trump White House. And he’s about to add a new line to his resume. On Thursday, the Senate Judiciary Committee voted along party lines to advance Menashi’s nomination to a powerful federal court to the Senate floor. He’s now just one vote away from a seat on the United States Court of Appeals for the Second Circuit.

Menashi is, to put it bluntly, the kind of person a president nominates if their goal is to “own the libs.” Though he possesses many of the conventional qualifications typically seen in judicial nominees, including a clerkship to Justice Samuel Alito, his history as a conservative provocateur drew swift denunciations from liberal groups that focus on judicial nominations.

The Committee vote to advance Menashi’s nomination, moreover, came just one day after the New York Times reported that Menashi was a central figure in an effort by the Education Department that sought to reduce the amount of loan forgiveness given to victims of a chain of predatory for-profit colleges. A federal court halted the Education Department’s scheme last year, holding that the department violated a federal law governing the way federal agencies handle private records.

And yet despite — or perhaps, because of — Menashi’s controversial record, confirming him appears to be a very high priority for Senate Republicans. The Judiciary Committee raced to give him a confirmation hearing just two days after Trump formally nominated him for the judgeship. Nominees typically wait weeks or even months for a hearing, in no small part because senators need time to review the nominee’s record.

Menashi almost certainly received special treatment to, in HuffPost’s Jennifer Bendery’s words, help “stave off prolonged protests by progressive groups that have already signaled strong opposition to Menashi.” Indeed, protesters briefly disrupted Menashi’s hearing during his opening statement.

There is both a scholarly case against Menashi and a more widely accessible case against his nomination. The latter focuses on opinion pieces he wrote as a college student and then later as a graduate. In them, he denounced college anti-rape activists as “campus gynocentrists,” accused an LGBTQ civil rights group of “incessantly exploit[ing] the slaying of Mathew Shepard for both financial and political benefit,” and likened the practice of gathering racial data on university students to the Nazi “Nuremberg laws.

In a 1998 New York Times op-ed, which reads like a liberal college student’s bad parody of something a conservative might write, Menashi attacked need-based financial aid at colleges and universities — claiming that it “punishes families with the foresight and prudence to save for their children’s education.”

The scholarly case against Menashi is more nuanced. It rests on a pair a law review articles that can fairly be read to indicate that Menashi has deeply radical views, but that also do not provide conclusive evidence of those views. In one article, he appears to defend “ethnonationalism.” In the other, he touts court decisions that could form the tip of a spear into the heart of progressive economic regulation.

Menashi on ethnonationalism

The most debated aspect of Menashi’s record, just in terms of the amount of heat its generated among opinion journalists and pundits, is a 2010 academic article he wrote titled “Ethnonationalism and Liberal Democracy.”

That article was flagged by MSNBC’s Rachel Maddow last month, when she broadcast a lengthy segment claiming that Menashi argued that “democracy can’t work unless the country is defined by a unifying race.”

That characterization inflamed Menashi’s defenders. The Volokh Conspiracy’s David Bernstein argued that, by attacking Menashi, Maddow revealed herself as the real racist. Meanwhile, the Wall Street Journal’s editorial board offered a more substantive reply to Maddow, claiming that the article is a relatively benign defense of “Israel as a liberal democracy and Jewish state” — and claiming that any senator who accepts her argument drifts too far towards the “anti-Israel fringe.”

The Wall Street Journal is correct that the lion’s share of Menashi’s article is an academic defense of Israel against scholars who “argue that liberal democracy precludes the state from adopting a particularistic ethnonational identity.” Arraying himself against scholars who argue, in the words of one of Menashi’s antagonists, that Israel “remains distinctive among democratic states in its resort to ethnoreligious criteria with which to denominate and rank its citizens,” Menashi spends most of his article listing examples of other nations that also give favorable treatment to persons with a particular ethnonational identity.

To the extent that Menashi seeks to prove that many nations have a thread of ethnonationalism woven into their legal tapestry, his article is persuasive. He lists a wide array of laws — a Greek law that “grants automatic citizenship to ‘persons of Greek origin’ who volunteer for military service,” an Irish law creating a special process allowing persons “of Irish descent or Irish associations” to gain citizenship, and so forth — that give some degree of favorable treatment to people who can trace their family’s origins back to that nation.

Near the end of his article, however, Menashi diverges from his largely descriptive effort to normalize Israel, and suggests that ethnic diversity is itself harmful. “Social scientists have found that greater ethnic heterogeneity is associated with lower social trust,” he writes. “Ethnically heterogeneous societies exhibit less political and civic engagement, less effective governing institutions, and fewer public goods.”

“Surely,” he concludes with a flourish, “it does not serve the cause of liberal democracy to ignore this reality.”

Menashi’s article does not lay out a policy agenda to deal with this “reality.” Should the government teach citizens about diverse cultures so that they are more accepting? Does Menashi agree with University of Pennsylvania law professor Amy Wax that “our country will be better off with more whites and fewer nonwhites?

The full answers to these questions cannot be found in Menashi’s ethnonationalism article. Certainly the article, at the very least, suggests that Menashi is much more likely than the typical judge to be sympathetic to policies that seek to make the United States more homogeneous. That saidat his confirmation hearing, he did deny that the views expressed in the article shape his understanding of American law. The United States, he claimed at the hearing, is “not one of those countries” that is based on ethnic or linguistic “tradition.

Menashi vs. the 20th century

Like Menashi’s ethnonationalism piece, a 2014 article he cowrote with his former boss, Judge Douglas Ginsburg, also walks right up to the edge of embracing a deeply radical ideology without quite taking the final step into the abyss. So far, this second article has received less attention than the first — although it is discussed in an opposition research memo released by the liberal Alliance for Justice.

The article is styled as a review of a book by law professor Richard Epstein, a staunch libertarian known for his burn-it-down approach to government. The meat of the article trumpets a handful of lower court decisions that question the longstanding consensus that courts should not interfere with economic regulation absent an explicit constitutional command to do so. That consensus emerged in response to an era of conservative dominance that legal scholars refer to as the Lochner Era.

Until very recently, the Supreme Court’s 1905 opinion in Lochner v. New York was almost universally denounced as anti-canon — that is, it is was taught in law schools as an example of how judges should never, ever behave. Most scholars and judges still believe that Lochner is a cursed decision, although a libertarian insurgency now seeks to normalize it.

Lochner struck down a New York law providing that bakery workers could only be required to work 60 hours per week (at the time, bakery workers were typically paid by the day or by the week). To reach this result, the Court fabricated a “right to contract,” and claimed that the workers’ rights were violated by the New York law because it took away their “right” to enter into labor contracts that paid them very low wages to work very long hours. Later Supreme Court decisions used similar reasoning to invalidate minimum wage laws, laws protecting the right to unionize, and other workplace protections.

But the Lochner era wouldn’t last — the Supreme Court abandoned Lochner in 1937.

One consequence of Lochner’s fall is that the Supreme Court recognized that it should not be in the business of invalidating economic regulations where there isn’t a clear textual hook in the Constitution that justifies such a decision. Lochner claimed that the “right to contract” was implicit in the 14th Amendment’s vague command that no one may be denied “liberty” without “due process of law.”

But the justices concluded in a seminal 1955 opinion that “the day is gone when this Court uses the due process clause of the 14th Amendment to strike down state laws, regulatory of business and industrial conditions because they may be unwise, improvident, or out of harmony with a particular school of thought.”

Nevertheless, in an article titled “Rational Basis With Economic Bite,” Menashi and Ginsburg suggest that the courts should use the due process clause to strike down economic regulations because judges deem them to out of harmony with a particular libertarian school of thought.

The bulk of this article speaks favorably about a handful of lower court decisions invalidating laws that were allegedly intended to protect “one economic interest group from competition by another.” One such law prohibited anyone who isn’t a state-licensed funeral director from selling caskets. Another required pest control workers who captured and removed live mice, rats, or pigeons to obtain a certain license.

To be clear, many of these licensure laws are very bad policy and deserve to be repealed. As the Obama White House concluded in a 2015 report, “the current licensing regime in the United States ... creates substantial costs, and often the requirements for obtaining a license are not in sync with the skills needed for the job.”

But, as the Supreme Court has said, it’s not the job of judges to repeal laws simply because they are unwise. There is no provision of the Constitution that explicitly bans legislation that restricts competition, and the lower-court licensure decisions Ginsburg and Menashi highlighted are a break with the post-Lochner consensus that courts cannot be trusted to police economic regulations and determine which ones cause more harm than good.

Menashi and Ginsburg deny in their article that these early judicial incursions into economic policymaking will lead back to Lochner — although many leading libertarian advocates, scholars, and judges hope that they will. But Menashi and Ginsburg do suggest that judges should “determine the actual purpose” of economic regulations and strike them down if the judges deem the real purpose of a law to be “protectionist.”

That may sound anodyne, but Lochner’s modern-day defenders have proved masterful at spinning ordinary legislation as protectionist. A common myth touted by economically libertarian-leaning writers such as the Washington Post’s George Will, for example, is that the maximum hours law at issue in Lochner was itself an example of “rent-seeking by large, unionized bakeries and their unions” who wanted to “crush their small, family-owned, nonunionized competitors that depended on flexible work schedules.”

This myth persists among Lochner’s supporters despite the fact that it has little — if any — basis in evidence. As the political scientist Paul Kens, a leading scholar of the Lochner opinion, writes, the revisionist view of Lochner is “not based on primary sources” and “neither the newspapers of the time, nor personal accounts, nor legislative journals indicate that any large or powerful business was involved in passing this legislation.”

The point of this discussion about Lochner and the effort to revive it is not that Menashi endorses that effort. Rather, the point is that the article he wrote with Ginsburg embraces nearly all the premises of the Lochnerians without explicitly reaching their conclusion. It is evidence that he supports a deeply radical agenda — one that could dismantle much of the New Deal and the Great Society — but not conclusive proof that he does so.

If senators had more time to prepare for Menashi’s hearing, perhaps they could have probed deeper into the nominee’s views and answered the many questions raised by Menashi’s writings. As it is, however, we are left with a record that hints at great radicalism but that still offers Menashi plausible deniability.

The answers to most of the questions raised by Menashi’s record, in other words, are likely to come once he has a lifetime appointment to the federal bench.

Monday, December 28, 2020

The power of Trump's rhetoric - a video

 

The medal of the Alfred Nobel Prize!

This video is an example of the power of Trump's pose.  The images we see as hypocritical posturing are taken by many at face value.  As Josh Marshall observed today the battle for winning slogans is key.  And simple messages.

No President has ever had the chutzpah to claim credit for everything he nears or touches.  But Trump has done that and 74 million were not revulsed by it.  The messaging is always simple.  Always.  No modesty, no nuance, no sharing of credit.   If there is bad news it is the Radical Democrats, the Fake News, the Hoaxers, the Deep State, etc.  Whether one turns to Orwell's 1984 or Hannah Arendt on totalitarianism or Hitler's theatrics there are echoes and premonitions of Trump.  This video captures the power of the hero's messaging.

- GWC



Should Congressman Gohmert be disciplined by the court for his wacko lawsuit to set aside the election?

Gohmert-v-Pence.pdf
1) Our zeal as lawyers extends to arguments in good faith for extension and change of the law.
2) We are also obligated not to bring the legal system into disrepute..by  [see #1, above]

But there's another problem with disciplining Congressman Gohmert from his latest effort to discredit the electoral system and block the confirmation by the Congress of the election results.
 

State Court Staffing Cuts Are Difficult, Necessary Choices | New York Law Journal

State Court Staffing Cuts Are Difficult, Necessary Choices | New York Law Journal
by Jonathan Lippman

New York State is grappling with a massive $300 million budget cut to its court system caused by the sudden and unexpected arrival of COVID-19 in March. As a result, Chief Judge Janet DiFiore and state court leaders have been forced to make hard choices in order to absorb this enormous and unprecedented cut, including adopting a strict hiring freeze, deferring raises and suspending countless programs. And as a last resort, they also declined to extend the judicial service of 46 retired trial and appellate judges who applied for approval to stay on the bench beyond their expired terms of service (this form of additional service is made permissible under New York’s constitution). The Chief Judge indicated that this decision was made with the greatest reluctance in order to save tens of millions of dollars and position the court system to avoid laying off over 300 employees.

As someone who was integrally involved in preparing the court system’s annual budget requests for two decades, I can confirm that it’s simply impossible for the courts to absorb such deep funding cuts without shrinking its workforce. Unlike Executive Branch agencies, courts have few discretionary programs and very little spending flexibility. Over 90% of the courts’ budget goes to paying the judges, court attorneys, court clerks, court officers and others who deliver justice services to millions of New Yorkers in hundreds of civil, criminal, family, housing and surrogate’s courts each year.

Limit on Religious Gatherings During COVID-19 Is Well Founded | Editorial - New Jersey Law Journal

Limit on Religious Gatherings During COVID-19 Is Well Founded | New Jersey Law Journal
By the Editorial Board

Rev. Kevin Robinson, pastor of St. Anthony of Padua R.C. Church in North Caldwell, and Rabbi Knopfler of a small, 30-member Jewish congregation in Lakewood, sought a temporary restraining order or preliminary injunction against Gov. Philip Murphy’s executive orders limiting religious congregations. The governor seeks to stem the spread of the novel coronavirus sweeping the state, country, and world. Rejected at the district court and the Third Circuit the two clergymen petitioned the United States Supreme Court in an “emergency application for an injunction pending appellate review”.

The pastor and the rabbi complain that “[u]nder the New Jersey governor’s web of COVID-19 pandemic regulations, imposed solely by his will, houses of worship are strictly limited to the lesser of 25% of capacity or 150 people, but, strangely enough, never fewer than 10 people even if greater than 25% of capacity.” The minimum allowance of ten is an accommodation to Jewish tradition that requires ten men to form a minyan.

The clergymen complain that the state has imposed “less restrictive limits on secular activities that evidently pose the same or greater risk of viral transmission, [thus] violat[ing their congregants] rights to the Free Exercise of Religion and Free Speech and Assembly.”

The Constitution, they argue “does not allow a State to pursue such measures against religious practices more aggressively than it does against comparable secular activities.” The issue closely resembles that in Brooklyn Catholic Diocese v. Andrew Cuomo, Governor of New York. A fractured court, in six opinions voted 6-3 to enjoin Cuomo’s order that in “red zones” no more than 10 may congregate in a church or other indoor place of worship. In a “yellow” zone no more than twenty five may gather in worship.

The Supreme Court in a per curiam opinion in the Brooklyn Catholic Diocese case said the New York measures denied churches and synagogues “the minimum requirement of neutrality”. The opinion disparaged Cuomo’s order because enterprises deemed “essential” include “acupuncture facilities, camp grounds, garages, as well as many whose services are not limited to those that can be regarded as essential, such as all plants manufacturing chemicals and microelectronics and all transportation facilities.” Three dissenters on the merits (Justices Breyer, Kagan, and Sotomayor) faulted the five-member majority for interfering with the governor’s informed choices as uninformed intrusions by judges trained as lawyers but unskilled in the arts of epidemiology and public health.

The Supreme Court has vacated the order of the district court denying relief and remanded for reconsideration in light of the Brooklyn Catholic Diocese case. But it appears to us that the New Jersey case can be readily distinguished from the New York order enjoined by the high court. In his brief for Gov. Murphy, Attorney General Gurbir Grewal reports that the New Jersey orders do not single out religious gatherings but rather “prevent crowding at any venue where the public congregates for extended periods”. Grewal goes on to explain that New Jersey “reserves its strictest numerical limits for indoor gatherings, limiting them to just ten people, because they combine the various risk factors that lead to spread of COVID-19—such as group interactions, in indoor spaces, for extended periods of time, and even including loud talking or singing.  And the state maintains robust 25% capacity limits for venues where the public remains for extended periods, reasoning that “the more closely [persons] interact with others and the longer that interaction, the higher the risk of COVID-19 spread.”

Courts exercising their equity powers properly tailor their injunctions to the circumstances presented to afford full relief. But there must be a wrong to warrant a remedy. That a general order on congregant activity may impact different groups differently is not tyranny but good government when it is grounded in scientific opinion formed with the degree of rigor typically employed in a field.

Gov. Murphy’s order is informed by the opinions of epidemiologists and public health experts who explain that: the “dose” of COVID-19 to which someone is exposed makes a difference in how likely that individual is to contract the virus, and how severe their illness will be. And the dose to which someone was exposed depends on the closeness and length of their contacts with an infected person. As the CDC puts it, “the more closely you interact with others and the longer that interaction, the higher the risk of COVID-19 spread.”

In the Brooklyn Catholic Diocese case, Associate Justice Brett Kavanaugh explained his vote saying that “New York has not sufficiently justified treating houses of worship more severely than secular businesses.” But in New Jersey the disparity to which Kavanaugh objected is absent. And perhaps more importantly, Murphy’s order is tailored to the viral dose to which certain categories of conduct may subject others, creating heightened risk to the uninfected.

The epidemic is raging and we hope that the newly approved vaccines will bring COVID-19′s spread to a halt. As new infections exceed 200,000 per day nationally and daily deaths exceed 2,000, now is no time for courts to fine tune the scientifically-grounded measures rationally adopted by our state, which is conventionally understood to have the “police power” to protect the public health and welfare.

Reginald Foster, Vatican Latinist Who Tweeted in the Language, Dies at 81 - The New York Times



A masterful obit.
Reginald Foster, Vatican Latinist Who Tweeted in the Language, Dies at 81 - The New York Times
by Margalit Fox
"Father Foster immersed his pupils in the living, breathing organism, rife with splendid oratory, gripping prose and more than a few period dirty jokes, that was Latin."

Sunday, December 27, 2020

The Largest Mass Execution in American History : Heather Cox Richardson - We're History



The Largest Mass Execution in American History : We're History
By Heather Cox Richardson

December 26 is the anniversary of the largest mass execution in American history. On that date in 1862, the U.S. government hanged 38 Santee Sioux for their participation in Minnesota’s Dakota War.

The war began in August 1862, when Santee Sioux warriors rose up against settlers in Minnesota. The Santee were driven to war after the U.S. government, financially strapped by the Civil War, stopped providing the food promised to the Indians by treaty. Starving and unable to provide for themselves on the small reservation on which they had been corralled in 1851, young men attacked the settlers who had built homes on the land the Santee had ceded. By September, both Minnesota militia and U.S. Army regiments were engaged in a war with the Santee that would leave 600 settlers, between 100 and 300 Indians, and more than a hundred soldiers dead before the last of the Santee warriors surrendered to the military at the end of the month.

Over the course of five weeks in the fall of 1862, a military commission tried 393 Indians for their part in the conflict. Because these were military trials, the Indians did not have lawyers. Many of the prisoners did not speak English. Those who did understand the questions put to them did not understand the legal process that permitted them to avoid self-incrimination; they told the truth about their part in the fighting and thus cemented their convictions. Many of the trials took fewer than ten minutes before the judges reached a guilty verdict: in two days of trials, 82 men were tried. In early November, the commission convicted 303 Indians of murder or rape and sentenced them to death. Minnesota Governor Alexander Ramsey wrote to President Lincoln expressing his hope that “the execution of every Sioux Indian condemned by the military court will be at once ordered.”

But while harsh sentences pleased the furious Minnesota settlers, they presented a delicate problem for President Lincoln. Personally, he was reluctant to use the government to execute men, and frequently commuted death sentences for soldiers convicted of anything other than rape or murder. He recoiled from the idea of executing several hundred men at once.

KEEP READING

Friday, December 25, 2020

Personal Rights in China's new civil code - Wang Liming




Updated 1/8/21
Personal rights in China's new civil code - Wang Liming, et al - MODERN CHINA

Wang Liming, perhaps China's most prominent torts scholar and a major figure in academic circles, has with his Renmin University colleague Xiong Bingwan published in Sage's MODERN CHINA journal a lengthy discussion of the novel "personal rights" 人格权 section of the landmark Civil Code which takes effect January 1.

The section - of which we will soon publish a translation - is a real contribution to China's developing civil law.  It embeds in basic law personal rights to life, bodily integrity, personal security from unlawful searches, personal and organizational names, health, reputation, and privacy.  It bars commercialization of organ donation while preserving the voluntary right.  Remarkably it establishes a right to be free from sexual harassment - a right the Supreme People's Court last year recognized.  But its location in the nation's first comprehensive civil code highlights and secures the principle. 

The new section makes significant changes in the Law on the Protection of Women's Rights and Interests.  (2005)  That law (presumably superseded) provided "Article 40 Sexual harassment of women is prohibited.  The woman victim has the right to complain to the relevant unit or government agency."

第四十条 禁止对妇女实施性骚扰。受害妇女有权向单位和有关机关投诉。


Unlike the earlier law Article 1010 of the new civil code (below) is not gender specific. And rather than the right to complain, it establishes the right to demand civil responsibility. The new Code provision makes clear that the objectionable harassment may be by words, images, physical conduct, et cetera. It further compels entities and agencies to take precautions, to not only accept but hear complaints, investigate, and use their powers to both guard against and stop such harassment.


The Code language is broad enough to support harassment claims by men, and to be interpreted liberally to protect homosexuals, lesbians, etc.  But Susan Finder has pointed me to comments by Darius Longarino at China Law Translate arguing that narrow interpretation of the sexual harassment Article and problems of proof may make it of limited impact.  Yale Paul Tsai China Center's Longarino has elaborated this view in a new post.  We, of course, have seen that judges have shown varying receptivity to the principle in the U.S.  For example Amy Coney Barrett, newly placed on the Supreme Court, expressed a narrow view close to that of Wang Liming regarding what constitutes workplace harassment.

Finder explains that the Supreme People's Court plans in 2021 to present guidance documents on the causes of action recognized in the new Civil Code which replaces many laws such as the 2009 Tort Law 侵权责任法.
   

第一千零一十条 违背他人意愿,以言语、文字、图像、肢体行为等方式对他人实施性骚扰的,受害人有权依法请求行为人承担民事责任。

 Article 1010 Where sexual harassment is committed against the will of another person by words, images or physical acts, et cetera the victim shall have the right to demand the actor bear civil responsibility according to law. 

 机关、企业、学校等单位应当采取合理的预防、受理投诉、调查处置等措施,防止和制止利用职权、从属关系等实施性骚扰。

  A government office, business, school, and other such unit must take reasonable precautions, accept and hear complaints, investigate, process and use the powers of the office to  to guard against and stop acts of sexual harassment of subordinates.

第一千零一十一条 以非法拘禁等方式剥夺、限制他人的行动自由,或者非法搜查他人身体的,受害人有权依法请求行为人承担民事责任。

 Article 1011 If one unlawfully detains or otherwise limits another's free movement or unlawfully searches another's body[person], the victim has the right according to law to demand the actor bear civil responsibility. 

- George Conk

updated January 8, 2021

Thursday, December 24, 2020

The night before Christmas ....at Mar A Lago...and all through the house

 And Ma in her kerchief

And I in my cap,
Had just settled down
To a long winter's nap -
When out on the lawn
There rose such a clatter,
I sprang from my bed to see what was the matter. - lyrics by Clement Moore.
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