Thursday, January 30, 2020

Trump's Peace Plan Leaves Palestinians Few Nonviolent Options - Bloomberg

Which way now?
image: Kobi - Bloomberg
Trump's Peace Plan Leaves Palestinians Few Nonviolent Options - Bloomberg
by Hussein Ibish
When the Camp David summit in July 2000 failed, my father asked me what I thought. I said Israelis would eventually enforce the highly circumscribed “statehood” Palestinians had just rejected. They would try to use their overwhelming power to gobble up large parts of the occupied territories, without absorbing the Palestinian population or allowing genuine Palestinian independence.
Until this week, they were blocked from doing this because the U.S. was a third signatory to the 1993 Declaration of Principles that prohibits unilateral annexation. Now David Friedman, the American ambassador to Israel is openly encouraging Israel to annex big chunks of Palestinian territory.
The Palestine Liberation Organization for decades sought to negotiate a two-state agreement with Israel. If the Israelis go ahead with this annexation and Washington perseveres with the new Trump policies, they will look like the biggest dupes imaginable. Hamas, which insists on armed struggle, will appear vindicated despite the continuous disasters their violence have wrought on Palestinian lives and fortunes.
How should Palestinians respond?
The clever move would be to thank Trump for his ideas, and welcome the opportunity to sit down with the other parties to discuss how, if at all, these new proposals fit with the formal and binding framework signed and agreed to in 1993. (Spoiler: they don’t.)
If life were a debating society or courtroom, all Palestinians need do is hold up the signature page of the Declaration of Principles and win the argument every time.
But life isn’t like that. For years Palestinians were harangued and punished by Israelis and Americans for supposedly violating the spirit of the Oslo agreements by “unilaterally” seeking greater international recognition. Now Israel and the U.S. have blithely wrecked those agreements, which evidently aren’t sacred after all.
Besides, Palestinian politics won’t allow the PLO to play that game. Their constituents are too outraged to be satisfied with debate-hall arguments, and Hamas will capitalize on any perceived PLO weakness.
Palestinians might be able to recuperate their diplomatic position if Israel doesn't go ahead with annexations in the coming weeks and Trump is defeated in November. Then it would be up to the Democrats to urgently restore sanity to U.S. policy. That is not impossible, but it requires Palestinians to simply wait and see what happens.
Beyond that, Palestinian options are highly limited. Unless the international community ***

Wednesday, January 29, 2020

Supreme Court decision on immigration: Democrats should listen to Neil Gorsuch - Vox

Supreme Court decision on immigration: Democrats should listen to Neil Gorsuch - Vox
by Ian Millhiser
On Monday, the Supreme Court did something that’s become quite familiar in the Trump age: It reinstated a harsh new immigration policy that had been blocked by lower courts. This particular policy, known as the “public charge” rule, makes it easier for the United States to exclude lower-income immigrants.
The court did not explain its Department of Homeland Security v. New York decision, which is temporary — it lasts until the case makes its way through the appeals process and, most likely, to the justices’ decision on its merits. Monday’s order was split 5-4 along partisan lines.
Though the majority did not explain its decision, Justice Neil Gorsuch did pen a concurring opinion to which it is worth paying attention. It would limit the power of lower court judges to issue broad, nationwide orders suspending a federal policy. That’s what initially happened in the New York case, when a federal judge held that the public charge rule could not be enforced anywhere in the country.
In the short term, Gorsuch’s approach would obviously be an enormous boon to President Trump, as the Trump administration is behind many of the policies that are currently being blocked by lower courts.
But Democrats would actually do well to listen to Gorsuch. In the long run, they have far more to gain than the GOP from Gorsuch’s approach, which would strip liberals of a tool they’ve used to challenge Trump’s policies — but Democratic presidents have much more to fear from a too-aggressive judiciary than Republicans.

Nationwide injunctions, explained

Gorsuch’s opinion concerns what are sometimes referred to as “nationwide” or “universal” injunctions. An “injunction” is a court order compelling a party to behave — or, more often, to not behave — in a particular way. The plaintiffs in New York sought an injunction prohibiting the federal government from enforcing the new public charge rule.
One issue that often arises when a court issues an injunction is just how broadly that injunction should sweep. In New York, a lower court issued a nationwide injunction against the public charge rule, meaning the government may not enforce the rule against anyone anywhere, rather than issuing a more limited injunction that benefits only certain parties. Gorsuch argues that sweeping national injunctions are inappropriate.
Injunctions, Gorsuch writes, are “meant to redress the injuries sustained by a particular plaintiff in a particular lawsuit.” Thus, the appropriate remedy when a court issues an injunction against a particular policy is to prevent that policy from being enforced against the plaintiffs — and that’s it.
Gorsuch’s case against nationwide injunction echoes remarks by Attorney General William Barr, who claimed in a speech last May that federal courts issued more nationwide injunctions against the Trump administration than they issued in the entire 20th century.
It is difficult to confirm whether Barr’s claim is accurate, in part because scholars disagree around the margins about which orders qualify as “nationwide injunctions.” Nevertheless, there is at least some scholarly support for Barr’s claim that the rate of such injunctions has increased. A particularly influential paper by Notre Dame Law School professor Samuel Bray argues that “through the middle of the 20th century, there do not appear to have been any national injunctions.”

Supreme Court decision on immigration: Democrats should listen to Neil Gorsuch - Vox

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Supreme Court decision on immigration: Democrats should listen to Neil Gorsuch - Vox
by Ian Millhiser
On Monday, the Supreme Court did something that’s become quite familiar in the Trump age: It reinstated a harsh new immigration policy that had been blocked by lower courts. This particular policy, known as the “public charge” rule, makes it easier for the United States to exclude lower-income immigrants.
The court did not explain its Department of Homeland Security v. New York decision, which is temporary — it lasts until the case makes its way through the appeals process and, most likely, to the justices’ decision on its merits. Monday’s order was split 5-4 along partisan lines.
Though the majority did not explain its decision, Justice Neil Gorsuch did pen a concurring opinion to which it is worth paying attention. It would limit the power of lower court judges to issue broad, nationwide orders suspending a federal policy. That’s what initially happened in the New York case, when a federal judge held that the public charge rule could not be enforced anywhere in the country.
In the short term, Gorsuch’s approach would obviously be an enormous boon to President Trump, as the Trump administration is behind many of the policies that are currently being blocked by lower courts.
But Democrats would actually do well to listen to Gorsuch. In the long run, they have far more to gain than the GOP from Gorsuch’s approach, which would strip liberals of a tool they’ve used to challenge Trump’s policies — but Democratic presidents have much more to fear from a too-aggressive judiciary than Republicans.

Nationwide injunctions, explained KEEP READING

Can a President’s Absolute Immunity be Trumped? - Lawfare

Can a President’s Absolute Immunity be Trumped? - Lawfare
by Steve Vladeck and Benjamin Wittes
May 9, 2017

It’s time to think hard about Nixon v. Fitzgerald.
Fitzgerald isn’t really part of the national security law canon; it’s a 1982 Supreme Court decision that is often cited for the proposition that the President has “absolute immunity” (meaning he cannot be sued in his personal capacity) for any acts he undertakes while he is President.
We’re about to experience a flood of litigation testing what the case really means.
For most of American history, a sitting President’s immunity from civil litigation has been a subject of academic curiosity, but little real-world interest. Presidents get sued daily, of course, but usually in their capacity as head of the federal government, where—for the most part—Congress has waived any immunity. They generally don’t get sued in a manner that seeks to hold them personally liable.
Fitzgerald is one of the reasons. Although the Court held 15 years after deciding Fitzgerald, in Clinton v. Jones, that the same principle didn’t immunize a sitting President from civil litigation (in federal court, anyway) arising out of acts he took before assuming office, the working assumption for the past 35 years has been that inauguration is a bright constitutional line, and that the President is categorically free from civil liability for misdeeds that take place on the far side of his oath.
The problem is that Fitzgerald does not quite say what it’s cited to mean—and neither does Jones. And Donald Trump’s peculiar personality and bizarre mixing of his personal and official personas seems sure to test the parameters of the extant doctrine.
Consider: He is already being sued for incitement to violence at a campaign rally. He has, according to more than a dozen women, sexually harassed or assaulted them—and one of his accusers is now suing him for defamation after he claimed that she fabricated the charges. He says things about people using his Twitter account, like that they illegally “wire tapped” him, that might normally give rise to a defamation suit. And he is, well, careless about certain ethics rules and business practices in a fashion that might normally create exposure—even while maintaining giant business holdings as President.
Recently, Quinta Jurecic wrote a lengthy post on Trump’s two Twitter personas as a modern presentation of the medieval notion of the “King’s Two Bodies.” Fitzgerald and Jones are legal manifestations of the same idea: That the executive has a human form no different from any other person’s and an institutional form that is untouchable.
But on a closer reading of both cases, we think that the doctrine of absolute presidential immunity has some important caveats—some of which may bear prominently upon some of the current suits against President Trump and some of which may give rise to others. When you’re in Jones land and when you’re in Fitzgerald land turns out not be clear. And we think it likely that just how much immunity the president will receive under existing doctrine will depend more upon the nature of the specific claims than most commentators appear to have realized.
The Fitzgerald Ruling KEEP READING

Monday, January 27, 2020

Impeachment Trial and Legal Ethics: Cipollone Should Be a Witness, Not a Trump Lawyer

Impeachment Trial and Legal Ethics: Cipollone Should Be a Witness, Not a Trump Lawyer
by Stephen Gillers [NY Law School]

Pat A. Cipollone, White House Counsel, participated in the events leading up to the impeachment of Donald J. Trump. That makes him a witness, whom the House managers might want to call to testify. But Cipollone is also heading the Trump defense. A legal ethics rule – the “advocate-witness rule” — says that when a lawyer should be a witness at trial, she cannot also be an advocate in the courtroom. The Senate chamber is not, of course, an ordinary courtroom, but that should make no difference. The goal is the same – to get the facts and find the truth.

Citing the advocate-witness rule and abundant legal authority, the House managers wrote to Cipollone on January 21 demanding that “at a minimum, you must disclose all facts and information as to which you have first-hand knowledge that will be at issue in connection with evidence you present or arguments you make in your role as the President’s legal advocate so that the Senate and Chief Justice can be apprised of any potential ethical issues, conflicts, or biases.” The House managers are right.

The advocate-witness rule tells us that it is more important for a lawyer with first-hand information about the events on trial to testify than to work as an advocate. That will mean that a client will not be able to get the lawyer he wants to represent him in court. But when the client’s interests and the court’s interest clash in this way, the rule says quite clearly that the court wins.

It doesn’t matter whether the lawyer’s testimony would help the client or the client’s opponent. In either event, the court’s interest in the testimony will prevail over the client’s wish to hire the lawyer. And especially if the testimony could help the opponent, the rule prevents the client from blocking it through the expedient of hiring the lawyer. The rule has exceptions but none applies here.

Government gets green light to implement “public charge” rule pending appeals

Torts Today: Government gets green light to implement “public charge” rule pending appeals

Saturday, January 25, 2020

The full tape - Trump and buddies at Trump Tower

90 minutes of Trump unfiltered at his D.C. hotel.  this has the get rid of Yovanavitch bit, and lots more.

Friday, January 24, 2020

Hakim Jeffries on why Trump has got to go



Adam Schiff - Why Trump should be removed - closing argument 1/23/20



Monday, January 20, 2020

How are Supreme People’s Court Opinions structured? | Supreme People's Court Monitor

Screen Shot 2019-12-29 at 9.15.50 PM
An SPC press conference - December 2019
There is delegation but not separation of powers in the government of China.  The   centralized, single political party leads by placing its separate! units and Secretaries in each state institution.  It is the polar opposite of non-partisan government, attempting to achieve non-factional government by implementing national policy from top to bottom.
Professionalization of the Chinese judiciary is a means of implementing national - Communist Party declared or ratified - policy.  There is no case or controversy requirement.  The Supreme People's Court governs by may methods.  Opinions is one.  Susan Finder explains.
How are Supreme People’s Court Opinions structured? | Supreme People's Court Monitor
by Susan Finder

When the Supreme People’s Court (SPC) issues an “opinion” (意见), it is not issuing a judgment or ruling. It is issuing a policy document, without the force of law. In the New Era, the SPC has issued over dozen policy documents that provide “judicial services and guarantees” for major government strategies or initiatives, many more than before. They are examples of how the SPC supports the Party and government by issuing policy documents to support important strategies or initiatives (serving the greater situation (服务大局). What few, if any have written about is the structure of these opinions that support important strategies or initiatives as they relate to civil and commercial law issues. Understanding the structure is key to understanding the documents. Understanding opinions is important for understanding current issues in the courts and the future direction of judicial policy.

This blogpost uses the two opinions announced at the 27 December 2019 press conference pictured above, at which Justice Luo Dongchuan and Judges Wang Shumei and Gao Xiaoli (head and deputy head of the #4 Civil Division) introduced the two opinions (and a judicial interpretation). A subsequent blogpost will highlight what is new in these three documents. All three are connected directly or indirectly to the Belt & Road Initiative (BRI) and improving China’s foreign investment environment. The two opinions are:
Opinion on providing services and guarantees for the Belt & Road (2) (BRI Opinion #2) (关于人民法院进一步为“一带一路”建设提供司法服务和保障的意见); and
Opinion on Providing Services and Guarantees for Construction of the Lingang area of the Shanghai Pilot Free Trade Zone (Lingang FTZ Opinion) (关于人民法院为中国(上海)自由贸易试验区临港新片区建设提供司法服务和保障的意见).

The Opinions update two of the SPC’s two major recent policy documents on cross-border issues: the 2015 Opinion on Providing Services and Guarantees for the Belt & Road (BRI Opinion, and Opinion on Providing Guarantees for the Building of Pilot Free Trade Zones (FTZ Opinion).

The BRI Opinion #2 and Lingang FTZ Opinion are intended to harmonize the two earlier policy documents with post 19th Party Congress developments and priorities, including those mentioned in the 2019 19th Party Central Committee Fourth Plenum Decision. I had previously reviewed the BRI Opinion and FTZ Opinions in detail. My analysis of the Pilot FTZ Opinion can be found here and I have previously written and spoken about the BRI Opinion.

Lower courts may issue documents that supplement the SPC’s policy documents, as is true with these Opinions. This is a subject that I have written about on this blog and elsewhere before. The Shanghai Higher People’s Court has already issued a guidance document that provides related services and guarantees, with important content.

The two Opinions also link to three different events or matters–the promulgation of the Foreign Investment Law; the Second Belt & Road Forum for International Cooperation; and Xi Jinping’s visit to Shanghai and establishment of the Lingang Special Area of the Shanghai FTZ.
Structure of these Opinions

Sunday, January 19, 2020

M.L. King - a drum major for justice, peace, and righteousness

You have to be near my age to remember Martin Luther King as an influence in your life, taken young as he was.  His dignity and commitment to non-violence were of course powerful draws.  When he turned against the war in Vietnam and united it with the fight for racial and economic justice he became, in his own words, a drum major for justice, peace and righteousness.  The closest I came to hearing him was the April 1967 massive anti-war march in New York but a cloudburst sent us scurrying to a coffee shop so we did not get to Dag Hammersjkold Plaza at the UN where he spoke to many, many thousands.  - GWC


Friday, January 17, 2020

As Supreme Court Considers Several Qualified Immunity Cases, A New Ally Joins The Fight | Cato @ Liberty

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As Supreme Court Considers Several Qualified Immunity Cases, A New Ally Joins The Fight | Cato @ Liberty
The Wall Street Journal recently published an op‐​ed by Institute for Justice Senior Attorney Robert McNamara, in which he describes IJ’s decision to join the raging battle against qualified immunity, a court‐​confected doctrine that provides rights‐​violating police and other government officials with what Cato has described as an “unlawful shield” against accountability for their misconduct. IJ’s focus on this issue will be a welcome addition to a fight that Cato has been waging for nearly two years with help from an astonishingly cross‐​ideological cast of public interest organizations ranging from the ACLU and the NAACP Legal Defense Fund to the Alliance Defending Freedom and the Second Amendment Foundation.
Cato launched its strategic campaign to challenge the doctrine of qualified immunity—an atextual, ahistorical doctrine invented by the Supreme Court in the 1960s — on March 1, 2018. Cato’s kick‐​off panel featured Judge Lynn Adelman of the Eastern District of Wisconsin, who has sharply criticized the doctrine; Professor Will Baude, whose enormously influential law review article has formed the backbone of the legal challenge to qualified immunity; and Andy Pincus and Victor Glasberg, two practitioners with ample experience confronting the harsh realities of the doctrine. Shortly after that conference, George Will noted on Meet the Press that there would be a “national discussion” about qualified immunity, “led by the Cato Institute.”
The centerpiece of Cato’s strategic campaign to take down qualified immunity has been a series of targeted amicus briefs urging the Supreme Court to reverse its precedents and eliminate the doctrine outrightSince launching the campaign in March 2018, Cato has filed dozens of additional amicus briefs in our own name, but we have also organized a massive cross‐​ideological alliance of public interest groups opposed to qualified immunity — what Judge Don Willett recently called “perhaps the most diverse amici ever assembled.” This “cross‐​ideological brief” was first filed in July 2018, in support of the cert petition in Allah v. Milling, a case involving the illegal and unconstitutional solitary confinement of a pretrial detainee in Connecticut for nearly seven months. So unsettled was the state by the onslaught of amicus support that it settled the case by offering the plaintiff more to dismiss his cert petition than he had been awarded at trial.
A diverse array of lower court judges has also been increasingly critical of qualified immunity, with many explicitly calling for the Supreme Court to reconsider the doctrine. To underscore the incredible ideological breadth of the opposition to qualified immunity, it is worth noting that the judicial critics of the doctrine now include nominees of every single President since Carter, as well as one of the two remaining LBJ appointees on the bench. To give just a few notable examples:

Dissecting Brett Kavanaugh’s ‘Supreme Ambition’ - The New York Times

Dissecting Brett Kavanaugh’s ‘Supreme Ambition’ - The New York Times
Ruth Marcus's Supreme Ambition -Reviewed by Adam Cohen

Tuesday, January 14, 2020

China seeks more aggressive antitrust enforcement as it proposes amendments to the Anti-Monopoly Law | Freshfields knowledge

China seeks more aggressive antitrust enforcement as it proposes amendments to the Anti-Monopoly Law | Freshfields knowledge
On 2 January 2020, China’s State Administration for Market Regulation (the “SAMR”) launched a public consultation on proposed amendments to China’s Anti-Monopoly Law (the “AML”). This signals the dawn of “Version 2.0” of China’s competition law, which has been on China’s legislative agenda since 2015.
The proposed draft reflects a more aggressive enforcement policy, with the most significant amendments in the area of merger control, where the authority has been most active since the AML came into force over ten years ago. The key proposed changes are: 
  • Significant increase in fines for merger control violations. The fining cap for merger control violations will significantly increase from RMB 500,000 (ca. EUR 65,000 or USD 72,000), a level which has been criticised for not providing a sufficient deterrence effect, to 10% of the relevant undertaking’s turnover in the previous year. This will apply to the following violations: (i) failure to notify, (ii) implementing a transaction before clearance, (iii) breach of remedies and (iv) breach of prohibition decisions. While silent on this point, it is possible that the 10% turnover threshold may be interpreted by the SAMR as being an undertaking’s global group turnover, and not just its PRC turnover. If adopted, this proposal will bring China’s fining powers in line with those in other jurisdictions such as the EU and the US, and send a strong message to companies who fail to notify their merger in China.
  • “Stop the clock” during merger review. The proposed draft introduces a “stop the clock” mechanism for future merger reviews. The SAMR will “stop the clock” when (i) the SAMR awaits an RFI response; (ii) the SAMR and the parties engage in remedy negotiations; or (iii) the notifying party so applies. Meanwhile, the SAMR has not proposed any amendment to the current total statutory review period of 180 calendar days.The proposal appears aimed at addressing the current practice of “pull-and-refile” in the most complex cases that run out of time. As a result, we are cautiously optimistic that this mechanism will not substantially impact the timelines for simple cases or normal cases without competition concerns, which have been significantly speeded up during the past few years. However, for complex deals or transactions involving strategic or sensitive sectors, the mechanism could potentially result in the timing of merger reviews becoming even longer and more unpredictable unless deadlines are introduced.
  • Potential flexibility to revise filing thresholds. In the proposed draft, the authority to design and amend the filing thresholds is delegated from the State Council to the SAMR. The current turnover thresholds have remained unchanged ever since the AML was promulgated more than 10 years ago and have been criticized for being too low and outdated.2 The proposed change will simplify the procedure for the SAMR to amend the turnover thresholds or introduce new threshold, as necessary.
  • Transactions falling under the filing thresholds. Relatedly, the proposed draft clarifies – and arguably encourages - the SAMR’s ability to investigate transactions falling under the turnover thresholds but which have or are likely to have the effect of restricting competition. It also clarifies that the SAMR is entitled to impose conditions or prohibit such transactions, or in case the transaction has been closed, request the parties to unwind the transaction. The amendment suggests that instead of introducing a new filing threshold, such as the transaction value threshold adopted by several jurisdictions (such as the US and Germany), the SAMR is likely to rely on this mechanism to intervene in “killer acquisitions” that fall under the turnover thresholds.
  • Introduction of definition of control. The proposed draft includes a definition for the concept of control which is stated as “the right or actual status to, directly or indirectly, solely or jointly, decisively influence or potentially decisively influence another undertaking’s operations or other key decisions”. While this will be the first time control is defined in the AML itself (there have only been definitions in various regulations previously) and is therefore to be welcomed, it is very broad and would likely capture a wider range of transactions than is currently the case. It remains to be seen whether this will be tightened as the revision develops. Still, the message is clear: the concept of control is broader in China than in other jurisdictions such as the EU. Specific China analysis should continue to be undertaken to ensure consistency with China’s competition regime.
Outside of merger control, the substantive provisions on cartels, vertical restrictions and abuse of dominance remain largely unchanged. However, the draft does include a number of significant amendments to the sanctions for anticompetitive conduct. It also, rather unusually, includes a sector-specific amendment in relation to innovation and the internet:

Trump’s Wrongdoings Are a Feature of His Party, Not a Bug GEN magazine

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Trump’s Wrongdoings Are a Feature of His Party, Not a Bug
by David Lurie
A Republican president stands accused of traitorous acts, working in cahoots with a kleptocracy that emerged from the ruins of the USSR and its KGB — a menace the GOP long grounded its very identity upon fighting — in multiple schemes to undermine our national elections.
Many have asked why the Republican Party would stand lockstep behind such a brazen criminal. The most commonly heard answer is that Trump has “taken over” the Party. That’s true insofar as the president is always the head of his party, but it is not a satisfactory answer.
Trump has managed to line up virtually every significant constituency of the GOP, not the least among them its senators and House members, behind him with remarkable uniformity, to the point that many GOP House members enthusiastically joined Trump in declaring his conduct with Ukraine to be “perfect” and nearly none were willing to criticize his conduct during the impeachment debate, while virtually all GOP senators stand ready to suppress further evidence of Trump’s criminality, then summarily acquit him.
The truth is, Trump and his serial illegal electoral interference are the apotheosis of a transformation of the GOP that began during the Reagan presidency, if not before. It is a transformation arising from the Republican Party’s slow but insistent recognition that it has become a permanent minority party, advancing policies that are widely unpopular, and that its political success is dependent upon hobbling democracy and, most importantly, the electoral process.