Sunday, May 31, 2020

Violent Protests Could be a Gift to Trump | Talking Points Memo

A protester carries the carries the U.S. flag upside, a sign of distress, Thursday, May 28, 2020, in Minneapolis. Violent protests over the death of George Floyd, the black man who died in police custody broke out in Minneapolis for a third straight night. (AP Photo/Julio Cortez)
Violent Protests Could be a Gift to Trump | Talking Points Memo
by John Judis
***The protests, of course, are the direct result of racial injustice in America. With his incendiary rhetoric, Trump, too, deserves blame. But the nature of the protests – the anarchy, the obliviousness to means to ends – reflects the profound lack of leadership on the American left. There are numbers and energy, but no constructive direction that could shape protests to accomplish needed ends the way Martin Luther King and the Southern Christian Leadership Conference or Walter Reuther and the United Auto Workers did during the late 1950s and early 1960s. Black Lives Matter and Indivisible are networks of people and groups. They are rallying cries, not organized movements with recognizable leaders. 
The labor movement is a shell of its past. The Democratic Socialists of America has impressive numbers, but is dominated ideologically by far leftists who even refuse to endorse Biden against Trump. Bernie Sanders’ Our Revolution became a lame appendage of his campaign.

You want to know what four more years of Trump could look like in America? Think of the protests in Minneapolis and elsewhere, on the one hand, and the armed militias in state capitols demanding that the states “open up.” Magnify their numbers and frequency. Think of America from 1854 to 1860 or during Nixon’s first term, when there were about four bombings a day. It’s not a pretty picture, and it’s one that I desperately hope that we can avoid.

Thursday, May 28, 2020

NEJM Podcast 256 — Anthony Fauci: Talking with patients about COVID-19 | Clinical Conversations

It's a pleasure to link to this interview of Dr. Anthony Fauci, Holy Cross '62 by my classmate Joe Elia, HC '67.
Podcast 256 — Anthony Fauci: Talking with patients about COVID-19 | Clinical Conversations

Lederman: Understanding the Michael Flynn Case: Separating the Wheat from the Chaff, and the Proper from the Improper

Understanding the Michael Flynn Case: Separating the Wheat from the Chaff, and the Proper from the Improper by Mary Lederman (Georgetown Law)
"The question of why Trump, Flynn, et al., were—and continue to be—so in thrall to Vladimir Putin, or at the very least indifferent to Russia’s threat to our electoral system, continues to be perhaps the most consequential question of the Trump Presidency."

China's Congress NPC Adopts comprehensive civil code 中国民法典诞生!_中国人大网

Why postponing China's National People's Congress adds further ...
Today China's National People's Congress adopted the long gestated comprehensive Civil Code, effective January 1, 2021.  It's seven titles and 1,260 articles are rather like our Restatements of the Law - but only the `black letter' - the rules.  No Comments, No Illustrations, No Reporter's Notes.  Those will come - as a practical matter - from the Supreme Peoples Court via its various mechanisms: appellate rulings, of course.  But more broadly from its Interpretations, Guidances, Answers to Questions, Rules and Regulations, Designation of certain court decisions as Guiding Cases.  The SPC exercises this power as an agent of the NPC which, though it is the highest constitutional authority, has no constitutional or other such review commission.

Much of the work of the SPC is filling in the gaps in the statutes.  Though laws go through three readings most of the debate occurred not in the chamber but via scholarly debate or through the public notice and comment process.  This was a protracted process that by some measures started over 100 years ago when the Republic of China adopted a civil code derived largely from the Japanese and thus the German code.

In my area - torts - the sections in this code were largely prefigured in the 2009 tort law.  But that law was drafted and circulated for discussion as part of the draft civil code in 2002.  The first version of the Civil Code was introduced in the NPC in 2005.  But the NPC got bogged down in debate over the real property law - problematic for a Leninist state that claims government ownership of all land.  So they put the draft code aside and passed the tort law as a stand-alone measure.  - GWC

Wednesday, May 27, 2020

New Jersey Supreme Court seeks Comment on the Duty of Confidentiality and Wrongful Convictions

Supreme Court of New Jersey - Wikipedia

Update: NJSBA: no changes
Michael Smolensky: opposes change
Michael Blanch: duty to disclose
Missouri law professors: opposing change
NJ Supreme Court Committee on Diversity, etc. supporting amendment
Charles Toutant of the New Jersey Law Journal reports:
The New Jersey Supreme Court is seeking input on a proposed rule change that would require lawyers to speak up if they hear information suggesting an innocent person has been wrongly incarcerated.If the revised rule is adopted, New Jersey would be the third state to adopt an exception to client-confidentiality obligations for information relating to wrongful convictions. The other two are Alaska and Massachusetts.The proposed rule change, if adopted, would change RPC 1.6 to create an exception to the duty to keep client information confidential if that information demonstrates that an innocent person was wrongly convicted of a crime with significant penal consequences. The judiciary is accepting written comments through June 26 on the proposal made public Wednesday.The proposal caused a division among the 21-member Supreme Court Working Group on the Duty of Confidentiality and Wrongful Convictions, with a majority favoring the amendment, according to a report by the group’s chairman, Jack Sabatino, the Appellate Division deputy presiding judge for administration.
Notice - Report of the Supreme Court Working Group on the Duty of Confidentiality and Wrongful Convictions - Comments Requested

Dorf on Law: Of Lynchings, Grand Jury Secrecy, and the Rot of Racism in the United States

The murder of Ahmaud Arbery, the jogger hunted down by a retired policeman and his son in Georgia evoked for Eric Segall (and many others) the history of lynch murders in the United States.  Four thousand victims are memorialized at the National Memorial for Peace and Justice. The murder of  two African American couples - . one of the last mob lynchings, is an unsolved crime near Moore's Ford east of Atlanta in 1946.  An historian's dying quest to learn how it is that no one was ever charged with the crime has been turned down by an 8-4 vote the United States Court of Appeals for the Eleventh Circuit.  Unless Anthony Pitch's widow finds the resources and the United States Supreme Court takes the case the records of that Grand Jury investigation will be forever sealed - despite the undisputed historic importance of the unpunished crimes.
The investigation of the Trump campaign by Robert Mueller drew attention to the rigor with which Grand Jury secrecy is maintained.  It is, in the main, a good rule.  There are a handful of exceptions to Rule 6(e) of the Federal Rules of Criminal Procedure. Defendants may obtain the testimony of the witnesses against them, or other prosecutors with a need to know.
But there is a historic discretionary power held by trial judges - for cases of historic importance.  Courts have differed on whether such power survived the 1944 Congressional adoption of the Federal Rules of Civil Procedure.  Did the Rules silence imply abolition of the historic discretionary power of a judge?
Georgia State Law professor Erich Segall explores the issues presented by Pitch v. United States.  Pitch had written a book about what may have been the last mass lynching in the United States.

Dorf on Law: Of Lynchings, Grand Jury Secrecy, and the Rot of Racism in the United States
By Eric Segall

On July 25, 1946, about sixty miles east of Atlanta, two African-American couples, Roger and Dorothy Malcom and George and Mae Murray Dorsey, were dragged from their car at gunpoint, tied to a tree, and shot approximately 60 times. The attack came to be known as the Moore’s Ford lynchings.

Despite the police interviewing almost 3000 witnesses, and a grand jury investigation that lasted for 16 days with over 100 witnesses, no one was ever arrested for these terrible and gruesome murders, which took place in public. Some people believe this heinous crime was the last mass lynching in our country.

Historian Anthony Pitch, who had already written one book on the subject, spent the last six years of his life trying to unseal the grand jury materials relevant to the lynchings. He believed that this racist crime and the likely coverup of those who committed it was a major event in American history as well a tragic saga of race in America.

He prevailed in front of both the trial court and a three-judge panel of the United States Court of Appeals for the Eleventh Circuit. After the appeals court decided to hear the case en banc, however, Pitch passed away.  Nevertheless, his widow kept the lawsuit alive. Then, on March 27 of this year, by a vote of  8-4, the full Eleventh Circuit reversed the panel decision and said the materials must remain sealed. Mr. Pitch's widow has 90 days from the date of the decision to ask the Supreme Court to hear the case.

Captured Courts Report - Democratic Policy and Communications Committee

Captured Courts Report - FINAL.pdf
by Debby Stabenow, MC
Sen. Charles Schumer
Sen. Sheldon Whitehouse

Colloquium: Legal history of epidemics Environment, Law, and History:

Environment, Law, and History: Colloquium: Legal history of epidemics

Tuesday, May 26, 2020

Dorf on Law: A New Buchanan/Dorf Paper Explains Why We Don't See More Conflict Between Law & Economics and Originalism/Textualism

Dorf on Law: A New Buchanan/Dorf Paper Explains Why We Don't See More Conflict Between Law & Economics and Originalism/Textualism
by Michael Dorf (Cornell Law)
In A Tale of Two Formalisms: How Law and Economics Mirrors Originalism and Textualism, we look at L&E alongside the other leading conservative approach to law: originalism in constitutional interpretation and textualism in statutory interpretation (collectively O&T). We address a puzzle: Given that L&E and O&T are grounded in different frameworks and prescribe different methodologies, why do they so rarely result in open conflict? The answer: Because they're both so open-ended as to work as a mask for whatever ideological priors a judge holds, and the particular people with those priors are on the political right.

NJ Law Journal Editorial: Sullivan's Appointment of Gleeson to challenge DOJ on Flynn Dismissal is Warranted

Emmet Sullivan
The New Jersey Law Journal Editorial Board (of which I'm a member) today ​published an editorial backing Judge Emmett Sullivan's appointment of retired judge John Gleeson as amicus in the Michael Flynn case.  Gleeson has been charged with two questions - 1) to present arguments in opposition to the DOJ's motion to dismiss and 2) whether Flynn should be charged with contempt for perjury.
The case is hugely controversial and consequential.  Two thousand former federal prosecutors joined a brief urging Sullivan to challenge the Department of Justice's motion to dismiss the Flynn indictment.  Lawrence Tribe and a slew of prominent lawyers have filed a like-minded amicus brief in the District Court, and a spring of `red states' has moved for leave to file an amicus brief in the D.C. Circuit Court where Flynn has sought a writ of mandamus dismissing the indictment. 

​by the Editorial Board​

Prosecutorial discretion has accustomed us to the idea that decisions on who to charge and whose crimes to ignore are virtually unreviewable. The exceptions are narrow: such as the constitutional bar on bills of attainder which may compel prosecution. Fairness defenses to prosecution are many but instances where prosecution is abandoned after a voluntary admission of guilt are unheard of.But in this case it has been suggested that the decision to abandon a prosecution involved personal or political favoritism towards the defendant by higher authority. Federal Rule of Criminal Procedure 48, like our Rule of Court 3:25, requires judicial approval to dismiss an indictment. The drafting history of the rule is clear that it was intended to provide a judicial check on dismissals motivated by personal favor, political influence, or worse, in order to preserve the reputation of the criminal justice system for impartiality. When the prosecution joins the defense in requesting a dismissal for possibly illegitimate reasons, the court is without the usual aid of the adversary system in uncovering the underlying reasons.Our attention has therefore been drawn to the decision of the United States Justice Department to end its efforts against former National Security Advisor Michael Flynn. Despite his admission of guilt for making false statements to an FBI agent in violation of 18 USC §1001 the Department of Justice has asked D.C. federal trial judge Emmet G. Sullivan to dismiss the indictment declaring the government could not meet its burden of proof. But the defendant had testified to facts supporting each element of the crime: a knowingly false and material statement of fact. And the judge had found that his allocution was voluntary, and the false statement material.

Monday, May 25, 2020

Wuhan - tests 9 million in 10 days.

Eric Topol update

Eric Topol strongly praises @youyanggu  creator of

This is Jerusalem: Violence and Dispossession in al-‘Esawiyah | [site:name

This is Jerusalem: Violence and Dispossession in al-‘Esawiyah | [site:name
Since April 2019, the Israel Police has been engaged in a campaign of abuse and collective punishment against the neighborhood of al-‘Esawiyah in East Jerusalem. The operation continues, despite social distancing restrictions announced by the government, putting local residents in danger.
One of the poorest neighborhoods in Jerusalem, al-‘Esawiyah lies on the eastern slopes of the Mount Scopus ridge, hemmed in by an array of Israeli institutions, Jewish neighborhoods, military bases and roads built on its land. The neighborhood is estimated to have 22,000 residents, and its population density is 3.5 times the average population density in Jerusalem.

This report covers various aspects of Israel’s policy that have together created the harsh living conditions in the neighborhood. While this abusive policy is employed in other Palestinian neighborhoods in East Jerusalem, Al-’Esawiyah is a particularly glaring example:

How China's Civil Code came into being – A long, tangled history - CGTN

How China's Civil Code came into being – A long, tangled history - CGTN
by Wang Xiaonan
China's top legislature commenced deliberating the draft of the country's first Civil Code on Friday as the annual session of the 13th National People's Congress (NPC) got off to a delayed start. The Code has garnered considerable attention from the public with its wide spectrum of legislation ranging from marriage to adoption, from protecting personal information to protecting property, from contracts to torts.
Composed of 1,260 articles scattered in the general provisions and six particular areas, the draft touches upon almost every aspect of people's lives.
Rome was not built in a day. Similarly, the most comprehensive draft law in the history of the People's Republic of China has taken 66 years to compile and codify.

Saturday, May 23, 2020

PrawfsBlawg: Are Hong Kong Pro-Democracy Activists Endangering the Basic Law They Want to Defend? How Moral Conviction Destroys Federal Compromise

Leaderless': Inside the masked face of Hong Kong's protests | News ...
Rick Hills has a long post about the National Security Law about to be enacted by China's National People's Congress.  It is addressed to Hong Kong which has itself failed to enact such a law.  We have seen Hong Kong paralyzed in recent years as anarchic protests have periodically paralyzed the enclave.
A lot of Western commentary imputes essentially criminal motivations to the Chinese Communist Party.  I do not. That does not mean there are not crimes committed - sometimes by local leaders, and sometimes at the top.  And one must recognize that the paranoia of the CCP is an expression of the fear that something like the Hong Kong protests could occur in the mainland itself - TiananMen '89 redux.
The PRC leaders therefore need to establish the stability which Hong Kong's government has failed to accomplish.  That failure practically forces the PRC to act.
In  a long post sure to provoke controversy Roderick Hills, Jr. has proposed a a "finlandization solution" in which Hong Kong goes its own path with the clear recognition that the City-state within a State is subordinate and will not authorize actions that tend to undermine the stability of the mainland and the CCP's monopoly on political power.
PrawfsBlawg: Are Hong Kong Pro-Democracy Activists Endangering the Basic Law They Want to Defend? How Moral Conviction Destroys Federal Compromise
by Roderick Hill (NYU) 
The news is now filled with denunciations of the People’s Republic of China (PRC) for failing adequately to respect the "high degree of autonomy" ("高度自治权") guaranteed to the Hong Kong Special Autonomous Republic (HKSAR) by Article 12 of the Hong Kong's Basic Law(BL), the Chinese statute under which HKSAR is governed. The specific occasion for these denunciations is the proposal by the National People's Congress to enact a new National Security Law ("NSL") that would allow the PRC to crack down on anti-state subversion (An English translation from Jeremy Daum is available here). 
These denunciations all share a larger narrative: The PRC has been constantly plotting for the last two decades to undermine HKSAR’s independence, unprovoked by any behavior by Hong Kongers, and only the vigilance of Hong Kong protestors has deterred such nefarious and illegal schemes. (For examples of this narrative, see this New York Times’ story and this Vox Explainer). Lewis Yau Yiu-man has provided a succinct statement of this narrative in an op-ed in yesterday’s New York Times: “‘One country, two systems’ was a ploy from the outset, a tactic for China to buy time, the better to absorb Hong Kong sooner or later,” he writes: “Preferably sooner, it seems.”
This narrative — PRC plotting to undermine the Basic Law, Hong Kongers’ vigilance in preserving it — is, I think confused and dangerous. If the PRC really wanted to “absorb Hong Kong,” then they sure are taking their good sweet time. Hong Kong has consistently been rated one of the top ten freest societies in the world by the Cato Institute, and even Freedom House, which gives Hong Kong only a partly free rating of 55, acknowledges that, in Hong Kong, “individuals [are] free to express their personal views on political or other sensitive topics without fear of surveillance or retribution.” Evidence that the Chinese Communists are not very energetic about destroying Hong Kong’s civil liberties is contained within Mr. Lau’s own op-ed, which he published while living in Hong Kong: Try publishing that sort of thing while living in Shanghai, and see how long you stay out of “residential surveillance.” If the PRC wanted to squelch this enclave of civil liberty, they could have rolled in the tanks in 1989 or 2003 or yesterday: They have no need of “ploys” where they have unquestioned power, given that they have shown a willingness to use power again and again, international public opinion and international law be damned.
The more accurate account of CCP leaders’ motives, therefore, is probably that (1) the PRC leadership would prefer to preserve Hong Kong as a liberal enclave, albeit not as unconstrained as critics like Mr. Lau would prefer but (2) Communist bigs and Hong Kongers simply have different conceptions of the regime that the Basic Law created, because the Basic Law is extraordinarily ambiguous. As I will argue after the jump, the PRC leaders could reasonably interpret the Basic Law as guaranteeing something like a “Finlandized” Hong Kong. By "Finlandization," I refer to the once-familiar and informal arrangement between Finland and the Soviet Union under which the Soviet Union would not interfere with the Finns' internal affairs so long as the Finns did not allow their territory to be used for denunciations of or organizing against the Soviet Union. The policy involved a significant amount of informal self-censorship by the Finns, not codified in any law but tacitly observed by book publishers, film-makers, and newspapers to avoid negative commentary on Soviet politics. It was not perfect freedom, but, compared to the fate suffered by, say, Czechoslovakia, Poland, or Hungary, “Finlandization” was, as Melvin Lasky put it in 1979, "not the worst fate." By contrast, Hong Kongers regard the Basic Law as guaranteeing them essentially the same raucously uncensored politics as, say, London’s or New York City’s.
My Hong Kong friends assure me that the PRC leadership has to move stealthily out of fear of the bad press that would be generated abroad from the military suppression of Hong Kongers a la Tiananmen. Maybe — but have you seen much evidence that the PRC leadership is much deterred from repression by bad international press in other contexts? In Xinjiang, for instance, or anywhere else in China? If the bosses of the Chinese Communist Party (CCP) really thought it was in their interest to get rid of all liberal dissent in Hong Kong, they could have done so long ago the old-fashioned Leninist way, irrespective of treaties, international law, or the Basic Law, with tanks and police “visits for a cup of tea.“ That’s how Leninists traditionally operate, from East Germany (1953), Hungary (1956), Czechoslovakia (1968), Wukan Village, and Xinjiang (2016-today).
The more likely explanation for the PRC’s relatively restrained behavior is that CCP leaders want to preserve a liberal Hong Kong to generate foreign currency, financial deals, decent universities, independent courts attractive to foreign and domestic investors, and an atmosphere of free expression attractive to intellectual talent. The CCP leadership, however, also wants Hong Kong liberalism to be “Finlandized” so that the PRC’s Leninist regime is not threatened by a spark of revolution flying out of Hong Kong and igniting prairie fire on the Mainland. This means that they want to insure that uncensored books in Hong Kong are not surreptitiously smuggled to Mainland China; public protest are free from deliberate insults to symbols of Chinese authority and patriotism (e.g., oath-mockinganthem-mocking, etc.); and Mainland fugitives (with their money) cannot escape to Hong Kong to flaunt the CCP’s authority.
All of these aspects of “Finlandization” are admittedly serious incursions on freedom as it is enjoyed in, say, New York City or London. But they are magnitudes less serious than the limits imposed on freedom in any Mainland city. If pro-democracy protestors overplay their hand by insisting on a level of freedom that the PRC leadership will not tolerate, then everyone, Hong Kongers and CCP bosses alike, will be left worse off.
5. Ambiguous federal compacts versus passionate moral commitments: The analogy to antebellum United States
If my diagnosis is correct, then CCP leaders and pro-democracy protestors ought to cut a deal in which both sides credibly commit to a specific “Finlandized” mix of freedom and constraint that each is prepared to tolerate. Presumably, the pro-democracy side can extract concessions for civil liberties equal to the sum of (1) the economic value of a liberal enclave for China plus (2) the various costs (e.g., bad PR) of repressing Tiananmen-style mass protests directly with the PLA. Instead, the pro-democracy side is unconditionally rejecting any sort of restrictions (e.g., extradition of Mainland fugitives) necessary to reassure the CCP, in the process unleashing protestor violence that practically invites the NPC’s standing committee to declare an emergency under BL Article 18 to address “turmoil...which endangers national unity or security and is beyond the control of the government of the Region.”

Tribe, Bollinger, Conway urge court to deny motion to dismiss Flynn indictment

United States Court of Appeals for the District of Columbia ...
In a friend of the court brief a host of prominent lawyers and scholars have joined Lawrence Tribe and Columbia University President Lee Bollinger  to urge the United State Court of Appeals for the District of Columbia Circuit to deny the federal government's motion to dismiss the indictment of Michael Flynn.  The former National Security Advisor twice pleaded guilty to making a false state to the FBI.  But under the leadership of Willliam Barr the Department of Justice now claims it could not prove its case.
District Judge Emmett Sullivan has appointed former judge John Gleeson as a friend of court to advise him as to whether the government's dismissal motion should be granted or not, and whether Flynn should be held in contempt of court.  Flynn has moved in the D.C. Circuit for an order (called a mandamus) directing Sullivan to dismiss the indictment, thus sparing Donald Trump of the embarrassment of pardoning a guilty man.

The legal scholars and former high government lawyers lawyers conclude that the court is not a rubber stamp for the prosecutors:
Article III grants the judiciary “the power, not merely to rule on cases, but to decide them.” Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 218-19 (1995) (emphasis in original). The political branches may not “comman[d] the federal courts to reopen final judgments,” id. at 219, or “prescribe rules of decision to the Judicial Department ... in [pending] cases.” United States v. Klein, 80 U.S. (13 Wall.) 128, 146 (1872). Thus, in Klein, the Court held that a post-Civil War statute invaded the province of the judiciary by providing that no pardon should be admissible as proof of loyalty on the part of former Confederates and directing the Court of Claims and the Supreme Court to dismiss for want of jurisdiction any claim based on a pardon.
If the judiciary is protected from the incursions of both political branches, acting together, then a fortiori, the courts are protected from the unilateral actions of the Executive Branch. See also Robertson v. Seattle Audubon Society, 503 U.S. 429, 438 (1992) (political branches may not “compel[] . . . findings or results under [preexisting] law”). The separation of powers protects this Court’s authority to complete the resolution of this case, free from the interference of the Executive Branch. As Alexander Hamilton recognized, 24 “[t]he complete independence of the courts of justice is peculiarly essential in a limited Constitution.” The Federalist No. 78, at 466.
CONCLUSION The government’s motion should be denied. 

Respectfully submitted.
/s/ Jonathan S. Massey /s/ Laurence H. Tribe