On Jerry Cohen's 90th NYU Law announces endowed chair and fall programs to honor Professor Jerome A. Cohen on his retirement | NYU School of Law

It has been one of the greatest honors of my life that I had the opportunity to know and to work with Jerome Cohen who has just turned 90.  His career is the stuff of legend - but he actually did it all.
I had the great good fortune in 2005 to travel with Jerry and two distinguished judges John Walker and Jed Rakoff to Guangzhou and  Beijing.  We lectured about fair trials and judicial ethics.  At Beijing Normal University's Criminal Justice School we discussed the death penalty with concerned prosecutors, lawyers, and judges.  Since then I have been fortunate to attend many discussions in the Winston Lord round-tables at the Council on Foreign Relations. - GWC
NYU Law announces endowed chair and fall programs to honor Professor Jerome A. Cohen on his retirement | NYU School of Law

For nearly 60 years—the past 30 at NYU School of Law—Professor Jerome A. Cohen has been a towering figure in the fields of Chinese law and East Asian legal studies. To celebrate him on the occasion of his retirement on June 30, the Law School is delighted to announce the establishment of an endowed chair in his name, as well as a series of virtual events this fall focused on critical legal issues in East Asia.

Jerome Cohen

Longtime friends of Jerry Cohen, Andrew Duncan and Bess Weatherman, spearheaded the campaign to establish the Jerome A. Cohen Professorship of Law by seeding the chair with a generous gift. They then worked closely with Cohen’s extended family of former students, scholars, and others around the world to fully endow the chair. Others contributing were Jack Huang, founder and chairman of Taiwan Renaissance Platform, and former partner-in-charge of Jones Day, Taipei; Daniel Tsai, chairman of Fubon Group; and additional supporters who wish to remain anonymous.

Once a faculty member is selected for the professorship, the Law School will announce an inaugural chair event to mark the occasion.

“Jerry is one of the foremost authorities on a document that many often forget about,” says Duncan. “China has a constitution too—using that as his cornerstone, Jerry has been an unsurpassed ambassador for Chinese rule of law. Jerry knows that there cannot be healthy capitalism without healthy rule of law. The true gift of Jerry Cohen is his coaching tree—literally generations of younger people around the globe. It is Jerry’s commitment to the children of the Sino American relationship which will remain with me for the rest of my days.”

“We are thrilled to endow a chair in Jerry’s name, and grateful to Andrew and Bess for being so instrumental in making that possible,” says Dean Trevor Morrison. “This will not only honor one of the original leaders of the field of Asian legal studies in the West; it will also guarantee the long-term sustainability of Jerry’s path-breaking work, enabling NYU Law to continue as a vital center for the study of Asian legal systems and an active participant in US-Asian exchanges on critical issues of law and policy.” Morrison adds: “It is especially fitting to announce this now, since tomorrow, July 1, is Jerry’s 90th birthday. On behalf of the entire Law School community, I offer him our congratulations, admiration, thanks, and best wishes.”

After graduating from Yale Law School, where he was editor-in-chief of the Yale Law Journal, Cohen clerked at the US Supreme Court for Chief Justice Earl Warren and Justice Felix Frankfurter. After starting his teaching career at the University of California, Berkeley School of Law, in 1964 he joined the faculty at Harvard Law School, founding the school’s East Asian Legal Studies program. As a partner (and now of counsel) at Paul, Weiss, Rifkind, Wharton & Garrison, he concentrated on business law in Asia. ***

Could America’s pandemic response be any more medieval? - Dana Milbank The Washington Post

There's a difference between stupidity and foolishness.  Rand Paul has exemplified it.  Fool.  - gwc
Opinion | Could America’s pandemic response be any more medieval? - The Washington Post
by Dana Milbank

Sen. Rand Paul doesn’t much care what Anthony Fauci has to say. The Kentucky Republican gets his public health advice from Friedrich Hayek.

Hayek, the Austrian-born economist and libertarian hero, died in 1992. But Paul, an ophthalmologist before he took up politics, still takes medical guidance from the 20th-century philosopher.

“Hayek had it right!” Paul proclaimed at Tuesday’s Senate health committee hearing on the coronavirus pandemic. “Only decentralized power and decision-making based on millions of individualized situations can arrive at what risks and behaviors each individual should choose.”

Paul focused his wrath on Fauci, the U.S. government’s top infectious-disease official. “Virtually every day we seem to hear from you things we can’t do,” Paul complained. “All I hear is, we can’t do this, we can’t do that, we can’t play baseball.”

Hong Kong Security Law is in Effect - Bill Bishop - Sinocism

There is a high degree of alarm about the new national security law.  It strikes me as a harsh but pretty conventional set of security laws - essentially supplanting Hong Kong's more protective law, as Changhao Wei of NPC Observer explains.  It spells the end of the autonomy that has been Hong Kong's governance mode.  The Hong Kong government failed to maintain order and to enact its own security law - despite an obligation to do so.  The massive protests which went on for months and disrupted the life of the former British colony demonstrated the incompetence of the Hong Kong government and anarchistic cynicism of many in the protest movement.

The contradictions of the British legal legacy and the special status of Hong Kong produced a local culture utterly intolerant of the one party, highly censored political life of the mainland.  The absence both of  independence and of genuine self government yielded a fractious and undisciplined mainly youthful opposition. 
The usual criteria for development of a national liberation movement were absent.  There are no linguistic, tribal or other forces that would support an independence movement.  And if one had developed, it surely would have been suppressed.

So Hong Kong did not develop as the in-house Singapore that the CP had hoped for.  Instead they found themselves with a fractious population governed incompetently by a local leadership that did not have enough power to maintain both order and international business confidence.  So the sovereign has stepped in with both feet.

It is hard to see a bright future for Hong Kong.  Businesses are likely to avoid the risks and acquiesce in the terms offered in Shenzhen and other mainland centers.  Hong Kong will probably bump along with slowly declining prosperity as Singapore proves a more stable authoritarian option. - gwc

Hong Kong National Security Law is in effect; CCP turns 99; Gaokao

by Bill Bishop  June 30, 2020

The Hong Kong National Security law has been promulgated and is now in effect. You can read the official versions here in simplified Chinese, here in traditional Chinese and here in English.

Some highlights:

Chapter III Offences and Penalties 第三章　罪行和处罚

Part 1 Secession 第一节　分裂国家罪

Part 2 Subversion 第二节　颠覆国家政权罪

Part 3 Terrorist Activities 第三节　恐怖活动罪

Part 4 Collusion with a Foreign Country or with External Elements to Endanger National Security 第四节　勾结外国或者境外势力危害国家安全罪

Article 38 This Law shall apply to offences under this Law committed against the Hong Kong Special Administrative Region from outside the Region by a person who is not a permanent resident of the Region. 第三十八条　不具有香港特别行政区永久性居民身份的人在香港特别行政区以外针对香港特别行政区实施本法规定的犯罪的，适用本法。

Article 54 The Office for Safeguarding National Security of the Central People’s Government in the Hong Kong Special Administrative Region and the Office of the Commissioner of the Ministry of Foreign Affairs in the Hong Kong Special Administrative Region shall, together with the Government of the Hong Kong Special Administrative Region, take necessary measures to strengthen the management of and services for organs of foreign countries and international organisations in the Region, as well as non-governmental organisations and news agencies of foreign countries and from outside the mainland, Hong Kong, and Macao of the People’s Republic of China in the Region. 第五十四条　驻香港特别行政区维护国家安全公署、外交部驻香港特别行政区特派员公署会同香港特别行政区政府采取必要措施，加强对外国和国际组织驻香港特别行政区机构、在香港特别行政区的外国和境外非政府组织和新闻机构的管理和服务。

There is talk of marches tomorrow, July 1, the 23rd anniversary of the handover. Perhaps there will be safety in numbers if tens of thousands or more take to the streets?

Expect the authorities to target a handful of people and cases to use as examples for the new law.

Xi and the CCP leadership were never going to back down from pushing through this law, no matter how much the Trump administration threatened. Now the US is in a bit of a bind, as the measures threatened so far look like they harm Hong Kong citizens and US interests more than they impact Xi and the CCP. Will the Trump administration blink, or will we see much more impactful moves like sanctions on major PRC financial institutions and senior Party/central government leaders and their family members? And will the US or any other Western governments do anything meaningful for Hong Kong residents?

I still stand by my comments from the May 28 newsletter:

The US runs the risk of having made a big deal about this law and then issuing a weak response that imposes relatively little cost on Beijing. I believe that is what Xi is betting on, and certainly the utterances from other governments have been fairly milquetoast, or non-existent as in the case of most of the PRC’s neighbors.

For Xi and the CCP, Hong Kong political security and the territory’s place in the Motherland trump whatever increase in US-China friction may come, and in the logic the two countries are now stuck in a harsh US response will only confirm to Xi and many in China that the US is hellbent on keeping China down, while a weak response from DC will add to the view already held by more than a few in Beijing that Trump and the US are paper tigers, as Mao liked to say, and Beijing can increasingly act with impunity. It is a toxic dynamic.

The new Hong Kong law will likely bring much more attention to the question of what if anything the US and its allies should or can do to protect Taiwan. There is no longer any reasonable prospect of “peaceful reunification” as the CCP calls it. Taiwan President Tsai tweeted a few hours ago:

蔡英文 Tsai Ing-wen @iingwen

China's disregard for the will of Hong Kong’s people proves that “one country, two systems” is not viable. Many things have changed in #HongKong since 1997, but #Taiwan’s commitment to supporting those #HKers who want freedom & democracy has never changed. #StandWithHongKong

Woodrow Wilson Was Even Worse Than You Think | Talking Points Memo

Woodrow Wilson Was Even Worse Than You Think | Talking Points Memo
by Colin Woodard

Princeton University’s decision this weekend to strike the name of its former president — and ours — from its public policy school for his “racist thinking and policies” was long overdue. Woodrow Wilson was in wide company in being a white supremacist at the turn of the 20th century, but he stands apart in having overseen the triumph of this ideology at home and abroad.

Son of the Confederacy’s leading cleric, apologist for the Klan, friend of the country’s most prominent racist demagogues, and architect and defender of an apartheid international racial order, the amazing thing is that Wilson’s name was ever associated with idealism or respectable statesmanship. In fact, delving deeply into his life to write “Union” — a book on the battle over whether the United States was to be defined by adherence to “natural rights” ideals contained in the Declaration of Independence, or to Anglo-Saxon bloodlines — I came away wondering how any institution would have wanted to be associated with his name at all, even in the 1920s or 1940s.

CDC Deputy Director Anne Schuchat - "we're not even beginning to be over it" - with JAMA's Howard Bauchner

Deputy Director of CDC Anne Schuchat "we are not even beginning to be over this"

The West's monumental crisis - UnHerd

The West's monumental crisis - UnHerd

The Epic Fails of Trump Attorney General William Barr//David R. Lurie - Daily Beast

The Epic Fails of Trump Attorney General William Barr

William Barr does not seem concerned that people know he is unethical, but he treasures his reputation as a ruthlessly effective fixer for Donald Trump. As the events of recent weeks have made plain, however, that reputation is undeserved.

When Trump nominated Barr to serve as attorney general in 2018, many expressed hope that this “old Washington hand” would return respect for the rule of law to the Department of Justice. Barr swiftly burst that balloon by baldly lying about Special Counsel Robert Mueller’s findings, even as he hid them for weeks. Since then, Barr has thoroughly trashed his reputation for probity and fidelity to the law, as he's successfully manipulated the justice system to serve Trump’s corrupt purposes.

But much like his boss, Barr wildly overestimates his own judgement and intelligence, and hence his ability to effectively employ governmental institutions to serve illicit ends. And while Barr has had some success in manipulating the justice system to protect Trump, he’s also had more than his own share of failures that placed Trump at needless risk or embarrassment, and even impeachment.

Seila Law LLC v. Consumer Financial Protection Bureau (06/29/2020)

The United States Supreme Court, in a 5-4 decision has embraced the so-called unitary executive theory.  The doctrine holds that the entire executive branch is, like a ventriloquist's dummy, the voice of the president.  The decision could undermine every quasi-independent federal agency - such as the FTC, the FCC, and the Consumer Product Safety Commission. 
And it signals that the court will not stand up to any assertion of executive authority by Donald  J. Trump There will be no departure from Republican party embrace of  an autarchic president - at least until a Democrat holds that post. - gwc

Is this an autarkic action by the Court, giving the President monarchic authority, stripping from Congress the power and autonomy needed to insulate consumer protection measures from direct interference by  Presidents subject to the pressure of those who finance their elections?

Or does this decision increase popular control of the policies of an executive law enforcement agency?

Is this decision best understood as  step in the Federalist Society agenda of reversing the Roosevelt Depression era New Deal's administrative state?

Seila Law LLC v. Consumer Financial Protection Bureau (06/29/2020)
The CFPB’s leadership by a single individual removable only for inefficiency, neglect, or malfeasance violates the separation of powers. Pp. 11–30. (a) Article II vests the entire “executive Power” in the President alone, but the Constitution presumes that lesser executive officers will assist the President in discharging his duties. The President’s executive power generally includes the power to supervise—and, if necessary, remove—those who exercise the President’s authority on his behalf. The President’s removal power has long been confirmed by history and precedent. ***

The Framers’ constitutional strategy is straightforward: divide power everywhere except for the Presidency, and render the President directly accountable to the people through regular elections. In that scheme, individual executive officials may wield significant authority, but that authority remains subject to the ongoing supervision and control of the elected President. 

***

Free Enterprise Fund left in place only two exceptions to the President’s unrestricted removal power. First, Humphrey’s Executor (1935) permitted Congress to give for-cause removal protection to [the Federal Trade Commission] a multi-member body of experts who were balanced along partisan lines, appointed to staggered terms, performed only “quasi-legislative” and“quasi-judicial functions,” and were said not to exercise any executive power. 

Second, Morrison approved for-cause removal protection for an inferior officer—the independent counsel—who had limited duties and no policymaking or administrative authority. Pp. 11–16.

(b) Neither Humphrey’s Executor nor Morrison resolves whether the CFPB Director’s insulation from removal is constitutional. The New Deal-era FTC upheld in Humphrey’s Executor bears little resemblance to the CFPB. Unlike the multiple Commissioners of the FTC, who were balanced along partisan lines and served staggered terms to ensure the accumulation of institutional knowledge, the CFPB Director serves a five-year term that guarantees abrupt shifts in leadership and the loss of agency expertise. In addition, the Director cannot be dismissed as a mere legislative or judicial aid. Rather, the Director possesses significant administrative and enforcement authority, including the power to seek daunting monetary penalties against private parties in federal court—a quintessentially executive power not considered in Humphrey’s Executor.

Opinion analysis: With Roberts providing the fifth vote, court strikes down Louisiana abortion law - SCOTUSblog

Opinion analysis: With Roberts providing the fifth vote, court strikes down Louisiana abortion law - SCOTUSblog
by Amy Howe

Four years ago, by a vote of 5-3, the Supreme Court struck down a Texas law that (among other things) required doctors who perform abortions to have the right to admit patients at a nearby hospital. In that case, Justice Anthony Kennedy joined his four more liberal colleagues in holding that, although Texas has a genuine interest in protecting the health of pregnant women, there was no evidence that the law actually did anything to promote that interest – but it did make it more difficult for women to get an abortion. Kennedy is no longer on the court, but today it was Chief Justice John Roberts who joined the court’s four liberals in ruling that a similar law from Louisiana is unconstitutional – even as he maintained that he continues to believe that the Texas case was wrongly decided.

The law at the center of today’s decision is the Louisiana Unsafe Abortion Protection Act, enacted in 2014, which requires doctors who perform abortions in Louisiana to have the right to admit patients to a hospital within 30 miles of the place where the abortion is performed. After the Supreme Court’s 2016 decision in Whole Woman’s Health v. Hellerstedt striking down the similar Texas law, a federal court in Louisiana barred the state from implementing the admitting-privileges requirement. It ruled that the law was unconstitutional because it would impose an “undue burden” on a woman’s right to an abortion. Specifically, the district court concluded, if the law went into effect, there would be only one doctor in the entire state left performing abortions in the early stages of pregnancy, and none at all performing abortions between 17 and 21 weeks of pregnancy. The U.S. Court of Appeals for the 5th Circuit reversed that ruling, clearing the way for the state to enforce the admitting-privileges requirement.

How politics played a major role in the signing of Jackie Robinson

How politics played a major role in the signing of Jackie Robinson

How politics played a major role in the signing of Jackie Robinson

How politics played a major role in the signing of Jackie Robinson
by Chris Lamb (Purdue University)

On October 23, 1945, the Brooklyn Dodgers signed Jackie Robinson to their top minor league team, the Montreal Royals, ending the color line in professional baseball.

After the signing, an Associated Press reporter asked Brooklyn team president Branch Rickey if he’d been politically pressured to sign Robinson. Rickey said he had given thought only to Robinson’s ability and the needs of his organization. “No pressure groups had anything to do with it,” he said.

This is the account that was circulated in the days, weeks, years and decades after the signing of Robinson. It will likely be repeated on Jackie Robinson Day on April 15.

But it wasn’t true.

Rickey certainly deserves credit for confronting his fellow owners and their racist attitudes by signing Robinson and, in doing so, advancing the cause of civil rights.

However, there is more to this story than Rickey and Robinson. In fact, the desegregation of baseball came after a decade-long campaign by black and left wing journalists and activists, which I detail in my book “Conspiracy of Silence: Sportswriters and the Long Campaign to Desegregate Baseball.”

United around a cause

Beginning in the 1930s, black sportswriters, notably Wendell Smith and Sam Lacy, made baseball part of a larger crusade to confront Jim Crow laws.

Their columns galvanized support among their readers, and their interviews with white major leaguers demonstrated that many players had no objections to playing with blacks.

Black sportswriters, however, had little influence among white politicians and legislators.

This wasn’t the case for white political progressives.

The collapse of America’s economy during the Depression created a hunger for radical politics. The United States Communist Party sought to recruit blacks, in particular, because of the severity of racism in the United States. And communists believed they could win the hearts and minds of black Americans if they could desegregate professional baseball, which had prohibited blacks since the 19th century. ***

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