The Supreme People's Procuratorate’s Increasing Role In Protecting IP | China IPR - Intellectual Property Developments in China

In 2005 I went to Shanghai as a visiting professor teaching copyright at East China University's School of Intellectual Property.   The existence of such a college was greeted with skepticism here when I reported on my trip.  But the existence of such a college was notable, as were the billboards declaring this to be "The Year of Intellectual Property".  Sixteen years have passed and we find that China's enforcement of IP law is greatly strengthened.  Of course the centrality of certain state owned enterprises makes the line between public and private thin.  But as Mark Cohen points out the central prosecution agency in China points out their enforcement efforts may actually exceed ours. - GWC

The SPP’s Increasing Role In Protecting IP | China IPR - Intellectual Property Developments in China

By Mark Cohen

On February 8, 2021, China’s Supreme People’s Procuratorate (SPP) held a press conference, where it was revealed that from 2016 to 2020, procuratorial organs across the country approved the arrest of over 16,300 cases of 28,000 people and prosecuted more than 23,000 cases of more than 45,000 people. This is a much higher volume of criminal prosecutions than USDOJ, which charged 68 cases in FY 2019 according to a report of the White House IP Enforcement Coordinator. 

Another function of the procuracy is to supervise civil and administrative cases. From 2016 to 2020, procuratorial organs across the country accepted a total of 495 civil supervision cases and 205 administrative supervision cases.

Song Jianli 宋建立, Deputy Director of Procuratorial Office of Intellectual Property (POIP) of the SPP, addressed trade secret related criminal issues.  He noted that in recent years most of the targets of crimes involving misappropriation of commercial secrets have been the core technology secrets of enterprises, including the employees or former employees of foreign-invested enterprises, which are high-risk groups for crimes. The procuratorial organs plan to strengthen the protection of trade secrets in key technical fields, focusing on cracking down on trade secret misappropriation crimes involving high-tech technologies and key technologies along with enforcement of other IP rights.  Mr. Song was formerly a judge in the Supreme People’s Court’s (SPC) No. 4 Civil Division  and on the China International Commercial Court, specializing in cross-border civil and commercial cases. He was appointed to his current position last year. He will bring China’s rich civil IP experience, particularly that at the SPC plus his own international experience to bear on civil, administrative, and criminal IP matters.

The POIP of SPP was established on November 6, 2020 as an internal comprehensive case handling organization to integrate the criminal, civil, and administrative procuratorial functions of intellectual property.  Currently, Beijing, Tianjin, Shanghai, Chongqing, Jiangsu, Zhejiang, Fujian and Sichuan Procuratorate have all set up POIPs to carry out a one-year pilot project for the centralized and unified exercise of IP procuratorial functions. 

Hong Kong's National Security Law: A Human Rights and Rule of Law Analysis

Hong Kong's National Security Law: A Human Rights and Rule of Law Analysis

A Human Rights and Rule of Law Analysis by Lydia Wong and Thomas E. Kellogg

Georgetown Center for Asian Law 

EXECUTIVE SUMMARY 

The National Security Law (NSL) constitutes one of the greatest threats to human rights and the rule of law in Hong Kong since the 1997 handover. This report analyzes the key elements of the NSL, and attempts to gauge the new law’s impact on human rights and the rule of law in Hong Kong. The report also analyzes the first six months of implementation of the new law, seeking to understand how the law is being used, who is being targeted, and which behaviors are being criminalized. The report is based on interviews with Hong Kong actors from various backgrounds, and also a wide-ranging review of the public record, including press reports, court documents, and other publicly-available sources. Our key findings include: 

• The Hong Kong Special Administrative Region (SAR) government and the central government have made vigorous use of the NSL over the past seven months, with over 100 arrests by the newly-created national security department in the Hong Kong police force, mostly for NSL crimes. 

• The threat posed to Hong Kong’s autonomy by the passage of the NSL by the central government is significant. At the same time, the creation of hybrid Mainland-Hong Kong national security bodies also directly threatens the Basic Law’s One Country, Two Systems framework and the oft-cited mantra of Hong Kong people ruling Hong Kong. 

• According to publicly-available information on the cases that have emerged thus far, the vast majority of initial NSL arrests would not be considered national security cases in other liberal constitutional jurisdictions. This raises questions about whether Hong Kong is beginning to diverge from its historically liberal, rule of law legal and political culture. 

• The cases that have emerged thus far raise serious concerns that the NSL is being used to punish the exercise of basic political rights by the government’s peaceful political opponents and its critics. Prosecution of individuals for exercising their rights to free expression, association, or assembly would violate Hong Kong and Beijing’s commitments under international human rights law. 

• The impact of the NSL has been felt well beyond the more than 100 individuals who have been arrested by the Department for Safeguarding National Security (NSD). According to our interviews, self-censorship – among journalists, academics, lawyers, activists, and members of the general public – has  emerged as a serious problem, one that could blunt Hong Kong’s longstanding tradition of freewheeling and robust public debate. 

• Many that we spoke to also feared that the NSL would have an impact on the day-to-day work of Hong Kong’s government bureaucracy, and that NSL values and norms could shape policy formation in potentially damaging ways for years to come. 

If current trends continue, Hong Kong could become a fundamentally different place, one that enjoys fewer freedoms and rights, with social, political, and legal institutions that are less vibrant, less independent, and less effective than they once were. As our analysis makes clear, the future of the One Country, Two systems model, and of Hong Kong’s autonomy, are in jeopardy. This report proceeds in two parts. 

In Part One, we offer a human rights and rule of law analysis of the NSL itself. We pay special attention to the ways in which the NSL infringes on the autonomy of Hong Kong’s core political and legal institutions, and also the ways in which the newly-created criminal provisions could be used to punish the peaceful exercise of core political rights, in potential violation of both the Basic Law and the obligation of the Hong Kong government to adhere to the International Covenant on Civil and Political Rights (ICCPR). 

In Part Two, we focus on the implementation of the law thus far. Since its implementation on June 30, 2020, the law has been used in three key ways: to limit certain forms of political speech, with a particular focus on pro-independence speech and key slogans from the 2019 protests movement; to limit foreign contacts, and in particular to break ties between Hong Kong activists and the U.S. and European governments; and to target opposition politicians and activists, many of whom are longtime pillars of Hong Kong’s political scene. 

 

Opinion | The Supreme Court Is Not Finished With Elections - The New York Times

Opinion | The Supreme Court Is Not Finished With Elections - The New York Times

by Linda Greenhouse

When the Supreme Court on Monday rejected Pennsylvania Republicans’ after-the-fact effort to invalidate late-arriving mailed ballots, it was tempting to suppose that the country’s courthouse doors had finally closed on this most litigated of presidential elections.

If only it were that simple.

True, in denying the Republicans’ petitions, the court didn’t issue an opinion. Of the four votes necessary to accept a case, these two cases (treated by the court as one) garnered only three. So for the official record, the only outcome in Republican Party of Pennsylvania v. DeGraffenreid and in Corman v. Pennsylvania Democratic Party was “denied.”

But the three justices who would have accepted the cases — Clarence Thomas, Samuel Alito and Neil Gorsuch — issued dissenting opinions that provide both a road map and a rationale for the Supreme Court’s future intervention in the quintessentially state matter of how to conduct elections.

Remember Bush v. Gore, the case that decided the 2000 presidential election, in which five justices voted to overturn the Florida Supreme Court’s handling of a statewide recount? That decision was based on a theory of equal protection so wacky that the majority opinion insisted that “our consideration is limited to the present circumstances” — that is to say, don’t dare invoke this poor excuse for an opinion as a precedent.

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The deeper question raised by Monday’s development is why Justices Thomas, Alito and Gorsuch are so intent on what would seem to be a counterintuitive goal for conservatives: curbing the power of state courts. I’m cynical enough to think it has to do with how these three understand the position of state legislatures and state courts in today’s political climate. It’s been widely reported that Republican-controlled legislatures are rolling out bills by the dozens to restrict access to the polls, aimed at discouraging the kind of turnout that produced Democratic victories in Georgia last month. The vote-suppression effort has become so aggressive that some Republicans are starting to worry about voter backlash, according to a recent Washington Post article.

State courts, on the other hand, are capable of standing in the way of this strategy. When state high-court judges are elected, as they are in many states, they typically run in statewide races that are not subject to the gerrymandering that has entrenched Republican power in states that are much more balanced politically than the makeup of their legislatures reflects. What better way to disable the state courts in their democracy-protecting role than to push them to the sidelines when it comes to federal elections.

So there is no way the Supreme Court is finished with elections. Next Tuesday, as it happens, the justices will hear a crucial voting rights case. The case, from Arizona, asks the court to decide for the first time how Section 2 of the Voting Rights Act of 1965 applies to policies that restrict the vote, through such measures as voter ID requirements.

Section 2, which pertains nationwide, is the major remaining provision of the Voting Rights Actfollowing the Supreme Court’s dismantling of the act’s Section 5, in the 2013 Shelby County case. That section barred certain states and smaller jurisdictions from making changes in their election procedures without first receiving federal permission, known as “preclearance.” Section 5 provided vital protection in parts of the country where racism had not released its grip on the levers of power.

The issue now is whether Section 2 can be deployed to fill that gap. It prohibits any voting practice that “results in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color.” It has typically been used to challenge redistricting plans that dilute the electoral power of racial and ethnic minorities. The question of whether it can be useful in challenging the wave of vote-suppression schemes, which can present complex problems of proof, hands the justices arguably the most important civil rights case of their current term.

Regulatory Authority in a Crisis: The Limits of the CDC’s Eviction Moratorium | N.Y.U. Journal of Legislation & Public Policy

Regulatory Authority in a Crisis: The Limits of the CDC’s Eviction Moratorium | N.Y.U. Journal of Legislation & Public Policy

By Roderick M. Hills

September 4, 2020

On Tuesday, the Center for Disease Control filed a notice of a new order imposing through the end of the year a moratorium on the eviction of residential tenants who declare that they make $99,000 or less, expect to be unable to pay their rent because of a loss of income, and would become homeless if evicted. As authorization for this order, the CDC cited 42 C.F.R. §70.2, a rule issued in February of 2020 that implements section 361 of the Public Health Service Act (PHSA) mostly by repeating almost verbatim the language of 42 U.S.C. §264(a).

As I shall explain below, there is a powerful case that the CDC’s order goes far beyond the spirit and maybe even the letter of the rule and statute that purportedly authorize it. Nevertheless, those legalities will probably matter very little in constraining Presidential power in a crisis.  Far more important is the public perception that something needs to be done about evictions and that neither Congress nor the states are doing it. By contrast with Trump’s other legally dubious responses to COVID-19 such as the extension of unemployment assistance, the usual critics of the Trump Administration have been startlingly silent about the CDC’s anti-eviction order. That silence seems like the sort of tacit bipartisan approval that tends to sweep away legalistic considerations.  

Texas judge declares CDC eviction bar unlawful

 

Terkel v. Centers for Disease Control 

The considerations discussed in the governing cases point to the same conclusion:

the CDC order exceeds the power granted to the federal government to “regulate Commerce . . . among the several States” and to “make all Laws which shall be necessary and proper for carrying into Execution” that power. U.S. Const. art. I, § 8. The challenged order is therefore held unlawful as “contrary to constitutional . . . power.” 5 U.S.C. § 706(2)(B).

Real estate is inherently local. Residential buildings do not move across state 

lines. And eviction is fundamentally the vindication of the property owner’s possessory interest.

J. Campbell Barker, D.J., EDTX, Case 6:20-cv-00564-JCB

This lawsuit presents the question whether the federal government has authority to order property owners not to evict specified tenants. Plaintiffs argue that this authority is not among the limited powers granted to the federal government in Article I of the Constitution, and thus the decision whether to enact an eviction moratorium rests with a given State. Disagreeing, the federal government argues that a na-

tionwide eviction moratorium is within Article I’s grant of federal authority to regulate commerce among the States.

But while “[t]he States have broad authority to enact legislation for the public good—what we have often called a ‘police power’”—“[t]he Federal Government, by contrast, has no such authority[.]” Bond v. United States, 572 U.S. 844, 854 (2014). The question here is whether a nationwide moratorium

on evicting specified tenants is within the limited powers that our Constitution grants to the federal government, namely, its authority to legislate as necessary and proper to regulate commerce among the several States.

The federal government cannot say that it has ever before invoked its power over interstate commerce to impose a residential eviction moratorium. It did not do so during the deadly Spanish Flu pandemic. Hr’g Tr. (Doc. 21) at 52:3-8 (government’s representation). Nor did it invoke such a power during the exigencies of the Great Depression. Id.

“Vesting”: Text, Context, Dictionaries, and Unitary Problems by Jed Handelsman Shugerman :: SSRN

 

“Vesting”: Text, Context, Dictionaries, and Unitary Problems  SSRN

52 Pages Posted:

Jed Handelsman Shugerman

Fordham Law School

Date Written: February 25, 2021

Abstract

“The executive Power shall be vested in a President of the United States of America.” The Executive Vesting Clause is one of three originalist pillars for the unitary executive theory, that as a strict separation of powers, the president possesses executive powers like removal exclusive from congressional limitations (i.e., they are indefeasible).

However, unitary judges and scholars have not provided historical evidence that “vesting” had such an original public meaning. This Article offers a close textual reading of the word “vesting” and an examination of its context, with the first survey of the word’s usage in early colonial charters and American constitutions, the Convention and ratification debates, and especially from over forty dictionaries from the era. The bottom line is that, in the eighteenth century, the word “vest” generally did not connote exclusivity, indefeasibility, or a special constitutional status for official power.

Modern assumptions about “vesting” for official powers are likely semantic drift from property rights and ahistoric projections back from the later Marshall Court doctrine of “vested rights.” They also reflect flawed assumptions about English royal removal powers, Blackstone, and the context of early American administration.

Other early constitutions (especially the Articles of Confederation), the Convention and Ratification debates, and related documents similarly reflect a limited meaning. A method of “intratextualism” and the canon of expressio unius, “the explicit mention of one is the exclusion of another,” offers clues about the meaning of “vest” when used in constitutional contexts. Other clauses often used other words to convey exclusivity and completeness: “all,” “exclusive,” “sole,” and “alone.” However, those words are missing from the Executive Vesting Clause.

In the first survey of the word “vest” in the era’s dictionaries from 1640 to 1846 (31 editors producing 50 editions, most before 1787), this Article finds that they generally defined “vest” in terms of individual property rights (most often landed property) without any reference to official powers. Some legal dictionaries referred in Latin to full possession of land or estates, but this evidence is less relevant to ordinary public meaning and to offices. Few had any definitions related to offices and powers, and no dictionary available for this study spelled out a definition as exclusive or indefeasible powers.

At best, its meaning is unclear, and more likely, its ordinary meaning was a simple grant of powers without such absolute or indefeasible connotations beyond legislative checks. This research has implications for Article I and Article III “vesting” (both for and against claims about formal non-delegation and jurisdictional exclusivity). If the Executive Vesting Clause does not convey exclusivity (and given the weaknesses of relying on “take Care,” “faithful execution,” or the Decision of 1789), it is unclear what remains of an originalist argument for Myers, Free Enterprise, Seila Law, and indefeasible removal powers.

 Suggested Citation:

Shugerman, Jed Handelsman, “Vesting”: Text, Context, Dictionaries, and Unitary Problems (February 25, 2021). Available at SSRN: https://ssrn.com/abstract=

Laurence Tribe: Justice Thomas is out of order on 2020 election | TheHill

Laurence Tribe: Justice Thomas is out of order on 2020 election | TheHill

The 2020 election revealed rot in this country’s institutions. Donald Trump degraded the presidency; senators like Josh Hawley (R-Mo.) and Ted Cruz (R-Texas) degraded the Congress. And, in a direct shot at the legitimacy of Joe Biden’s election as our 46th president, Justice Clarence Thomas made clear that the “Big Lie” about the 2020 election — a major source of institutional decay — has infected the Supreme Court, too.

Thomas staked out his Trumpian position in a dissent from the Supreme Court’s dismissal of two election-related lawsuits in Pennsylvania. Republicans in Pennsylvania had asked the Supreme Court to answer a recurring question that plagued the 2020 election: Does the United States Constitution permit the members of a state legislature, acting as a gang of elected lawmakers unconstrained by the state’s own constitution, to seize control of a presidential election by naming their own slate of electors to replace those chosen by the votes of the state’s people?

The answer to that crucial question depends in part on parsing Article II of the U.S. Constitution, which establishes that presidential electors are appointed “in such Manner as the Legislature [of the State] may direct.” Some maintain that, by vesting the power to choose electors in state “Legislature[s],” the Constitution has designated a free-range bunch of state representatives to meet wherever they like and do whatever suits their fancy. They claim the Constitution authorized state legislatures to ignore procedural requirements (like the number of votes needed to pass a bill) drawn from the state’s constitution and even substantive state constitutional provisions (like those enshrining the right to fair and equal voting opportunities).

The Law that Can Bring Down the Capitol Attackers | Washington Monthly

The Law that Can Bring Down the Capitol Attackers | Washington Monthly

The variously named Ku Klux Klan Act of 1871 (see also  Enforcement Act of 1871, 42 USC 1983,  1985, 1986 etc) is not hobble dthe way other Fourteenth Amendment Enforcement Act cases are by the "state action" requirement.  Conspiracy to deprive someone of rights or to obstruct a governmental function establish the cause of action.  Congressman Ben Thompson has filed such a claim against Donald Trump , rudy Giuliani, the Proud Boys and the Oath Keepers.  What does 42 USC 1985 require? See Prof. Garrett Epps, above.  For scholarly backup see: Primus, Richard and Kistler, Cameron, The Support-or-Advocacy Clauses (March 2, 2020). Fordham Law Review, Forthcoming, U of Michigan Public Law Research Paper No. 666, Available at SSRN: https://ssrn.com/abstract=3547579

Supreme Court: Two cases could destroy the Voting Rights Act - Vox

Supreme Court: Two cases could destroy the Voting Rights Act - Vox

by Ian Millhiser

Next Tuesday, the Supreme Court will hear two cases that could shred much of what remains of the right to be free from racial discrimination at the polls. The defendants’ arguments in two consolidated cases, Brnovich v. Democratic National Committee and Arizona Republican Party v. Democratic National Committee, are some of the most aggressive attacks on the right to vote to reach the Supreme Court in the post-Jim Crow era.

These two DNC cases concern two Arizona laws that make it more difficult to vote. The first requires voting officials to discard in their entirety ballots cast in the wrong precinct, rather than just not counting votes for local candidates who the voter should not have been able to vote for. The second prohibits many forms of “ballot collection,” where a voter gives their absentee ballot to someone else and that person delivers that ballot to the election office.

The most important question in the DNC cases isn’t whether these two particular Arizona laws will be upheld or stuck down, but whether the Court will announce a legal rule that guts one of America’s most important civil rights laws. And there is reason to fear that it will. The Supreme Court doesn’t just have a 6-3 Republican majority; it’s a majority that includes several justices who’ve shown a great deal of hostility toward voting rights generally and the Voting Rights Act in particular.

The Voting Rights Act is the landmark law that President Lyndon Johnson signed to end white supremacist election laws in 1965, and that President Ronald Reagan signed legislation expanding in 1982.

Reagan did so over the strident opposition of a young Justice Department lawyer named John Roberts. Roberts wrote more than two dozens memos opposing the 1982 voting rights law, one of which claimed it was “not only constitutionally suspect, but also contrary to the most fundamental tenants [sic] of the legislative process on which the laws of this country are based.”

Four decades later, Roberts isn’t simply the Chief Justice of the United States, he is the most moderate member of a six justice conservative majority — and his Court has already taken two significant bites out of the Voting Rights Act.

KEEP READING

Garrett Epps on the Thomas dissent from denial of cert in PA election case

 Prof. Garrett Epps on today's dissent by Thomas from denial of cert in the Pennsylvania election case.

This is what underlies Steve Scalise's refusal to concede that Joe Biden was lawfully and legitimately elected President.

Saluti, please find the unroll here: In his dissent from denial of cert. in DeGraffenreid, Thomas J. asserts that a state court established in 1722 can't… https://t.co/sSXZVpUdZn Share this if you think it's interesting. 🤖

— Thread Reader App (@threadreaderapp) February 23, 2021

The Nondelegation Rumble - Advisory Opinions

The Nondelegation Rumble - Advisory Opinions

Debate between Nicholas Bagley and Ilan Wurman

Originalists have recently come under fire for trying to reinvigorate an old principle in administrative law called the nondelegation doctrine, which holds that Congress cannot delegate its own legislative power to other entities. Are originalists correct in claiming that the nondelegation doctrine was present at the founding? What does the historical record have to say about it? Why should living constitutionalists even care about this debate? Nicholas Bagley, a law professor at the University of Michigan, and Ilan Wurman, an associate professor at the Sandra Day O'Connor College of Law at Arizona State University, join the show to answer all of these questions and more.

Show Notes:

-“There’s No Historical Justification for One of the Most Dangerous Ideas in American Law” by Nicholas Bagley and Julian Davis Mortenson in the Atlantic. 

-“Delegation at the Founding” by Nicholas Bagley and Julian Davis Mortenson in Columbia Law Review.

-“No Nondelegation at the Founding? Not so fast,” by Ilan Wurman in the Yale Law Journal.

-Schechter Poultry Corp. v. United States.

-Above the Law.

-The Second Founding: An Introduction to the Fourteenth Amendment by Ilan Wurman.

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Justices will not block New York grand jury subpoena for Trump’s records - SCOTUSblog

Better late than never, I suppose.  But still in limbo are the subpoenas by Congressional committees for the same records which have been tangled up by the remand order entered in the Trump v. Mazars case...a problem which Josh Chafetz has smartly identified as Judicial Aggrandizement in a forthcoming article in the Georgetown Law Journal.

Justices will not block New York grand jury subpoena for Trump’s records - SCOTUSblog

The Supreme Court on Monday cleared the way for a New York grand jury to obtain former President Donald Trump’s financial records. Over four months after Trump asked them to intervene, the justices turned down a request by the former president to stay a ruling by the U.S. Court of Appeals for the 2nd Circuit that permits Cyrus Vance, the district attorney for Manhattan, to enforce a subpoena to Mazars USA, the president’s longtime accountant. Monday’s order means that Vance and the grand jury likely will finally acquire eight years of Trump’s tax returns and other related records, although grand jury secrecy laws may preclude them from becoming public.

Supreme Court Refuses to Hear Cases Over Conduct of Election in Pennsylvania, With Justices Alito, Gorsuch and Thomas Dissenting: A Ticking Time Bomb To Go Off in a Later Case | Election Law Blog

Supreme Court Refuses to Hear Cases Over Conduct of Election in Pennsylvania, With Justices Alito, Gorsuch and Thomas Dissenting: A Ticking Time Bomb To Go Off in a Later Case | Election Law Blog

By Rick Hasen (UCLA)

You can find Justice Thomas’s opinion, dissenting from denial of cert. in two-Pennsylvania election cases, and Justice Alito’s separate dissent joined by Justice Gorsuch in the same cases HERE. The Court without noted dissent denied cert. in another PA case, the Kelly case. It takes four votes to agree to hear the case, and 5 to rule on the merits. There is no indication that Justice Barrett recused herself in consideration of the merits of these cases.

None of the dissenting Justices believed that these cases could somehow retroactively affect the outcome of the 2020 election. Indeed, they say it would not, but that the cases, while moot, should still have been heard because they present issues that will return to the federal courts. The main issue is the extent to which state courts, relying on state constitutions, may change rules for federal elections put in place by state legislatures. In the run-up to the 2020 elections, these three Justices, along with Justice Kavanaugh (who did not note a dissent in any of these cases today) expressed the view that the Constitution constrains the actions of state courts in such circumstances (viewing the legislature’s power as very broad).

This “independent state legislature” doctrine is a ticking time bomb, and it is an issue the Court is going to have to resolve, because these issues will return. As I explained back in November in a NY Times oped:

The worst appears yet to come....KEEP READING

Asymmetry between the major parties fries the circuits of the mainstream press - PressThink

This four and a half year old piece proved to be absolutely correct.  Even today gothsidesism reigns, with Steve Scalise (R-LA) refusing to admit that Biden has been lawfully elected President. - gwc

Asymmetry between the major parties fries the circuits of the mainstream press - PressThink

By Jay Rosen (NYU)

SEPTEMBER 25, 2016
On the eve of the first debate between Donald Trump and Hillary Clinton, I thought I would write down some of the precepts and maxims I have used to understand press behavior during this long and startling campaign season. If I have done this right, you should be able to test the usefulness of my list in the final six weeks of the U.S. election. (And during coverage of the debates!)

A word on how I came up with this list. I’ve been a close reader and critic of campaign coverage American-style since 1988. That’s eight “cycles,” as people in the industry say. After I started PressThink in 2003, I could write about the gatekeepers without their permission — hurray for blogging! — and so my pace increased during the 2004, 2008, and 2012 elections. This year I have done a little less at my blog (eight pieces since May 2015, plus one for the Washington Post) and put more into the real time conversation on Twitter, which includes most of the people doing campaign coverage, as well as the heaviest users of it.

Over that stretch I have tried to develop my own pressthink in reply to “theirs,” meaning the ideas most campaign journalists have about their work, and the explanations they tend to give when criticized for it. I tried to summarize the first 20 years of this tension in my 2011 lecture: Why Political Coverage is Broken. What I said there is still basic to how I do my criticism, but Donald Trump’s spectacular intervention has raised the stakes and altered the terms of the debate.

Trump is not a normal candidate and can’t be covered like one. Journalists have finally accepted that. Just the other day Dean Baquet, editor of the New York Times, said this about Trump

He’s been hugely challenging. I don’t think we’ve ever had somebody who in my time as a journalist so openly lies, and that was a word that we struggled to actually utter. We’re used to, I think as journalists, we’re used to philosophical debates, like one party thinks we should go to war on Iraq, makes its case—exaggerates its case, we now know. But there are warring philosophies. I’ve never quite seen anything like [Trump], and I think it’s a real challenge for us.

KEEP READING 

 

Legal Theory Blog: John Rawls at 100, "A Theory of Justice" at 50

John Rawls - the most influential legal philosopher of the past century - is paid just tribute by UVA legal philosopher Lawrence Solum.  For my part I can say only that the thick green book sat on my shelf partially read for many years.  He was urged upon me by a classmate Marilyn Morheuser, a former nun, civil rights activist in Milwaukee, who became the first director of the Education Law Center spawned by Rutgers professor Paul Tractenberg. Rawls, she said, believes in equal justice, in fairness.

Modest effort on my part showed that he said that you should choose the right rule from behind a veil - that you would not know whether you would be burdened or benefited by the rule you choose.  I got the idea - Rawls was in the ethical tradition of Immanuel Kant, whose Foundations of the Metaphysics of Morals I had read.  Treat others as though they are ends in themselves, not means to an end.

As time went on I became a loyal reader of the NYU legal philosopher Ronald Dworkin who built on Rawls.  So my knowledge of Rawls is filtered that way - through others, but particularly Dworkin.  James Fleming organized a conference Rawls and Law at Fordham in 2003.  Dworkin's keynote address was a powerful critique of utilitarianism - a philosophy that had long repelled me as the antithesis of Kant.  So I embraced Dworkin's CONFESSION:

Some of you will have noticed a certain congruence between the positions in legal theory I say Rawls's arguments support and those I have myself tried to defend, and you may think this no accident. So I offer you a confession, but with no apology. The work of philosophical icons is rich enough to allow appropriation through interpretation. Each of us has his or her own Immanuel Kant, and from now on we will struggle, each of us, for the benediction of John Rawls. And with very good reason. As this conference shows, after all the books, all the footnotes, all the wonderful discussions, we are only just beginning to grasp how much we have to learn from that man.

- GWC

Legal Theory Blog: John Rawls at 100, "A Theory of Justice" at 50

By Lawrence Solum

Today is the the 100th anniversary of the birth of John Rawls, one of the most influential philosophers of the twentieth century.  Rawls was a key figure in the revitalization of moral and political philosophy.  This year, his most important work, "A Theory of Justice," marks its 50th anniversary.

It goes without saying that Rawls was a shaping influence on the development of political philosophy.  Rawls's work held center stage in academic debates and penetrated public discourse to an unprecedented degree.  Even today, 18 years and some months after his death, Rawls remains at the center of many of the most important debates in political philosophy, although technical debates in political philosophy are now removed by many layers of dense argumentation from Rawls's original ideas and arguments.  If I might make a prediction for which I cannot be held to account, it is my belief that Rawls will be read, studied, discussed, and debated for centuries.

A Theory of Justice was a big book, with many important ideas.  Some of these have made their way into the everyday lexicon of moral and political philosophy and normative legal theory.  Among these are reflective equilibrium, the original position with its veil of ignorance, and of course the two principles of justice, the equal liberty principle and the difference principle. Other ideas, such as the concept-conception distinction and the notions of ideal and nonideal theory remain hugely influential.  More broadly, "A Theory of Justice" put distributive justice at the center stage of political philosophy for decades.  "A Theory of Justice" bracketed questions about race and gender--and that omission itself gave rise to an important body of work that criticized Rawls but used Rawlsian ideas to remedy the lacunae in Rawls's own work.  "The Racial Contract" by Charles Mills and "Justice, Gender, and the Family" by Susan Moller Okin are just two of many critiques that spawned entire bodies of scholarship.  The critique of Rawls should be seen as one of his most important contributions to modern thought.

KEEP READING

China: Supreme People's Court on integration of core socialist values

 关于深入推进社会主义核心价值观融入裁判文书释法说理的指导意见

• 来源：最高人民法院
• 发布时间：2021-02-18 08:54:40
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In order to thoroughly implement the CPC Central Committee on the further integration of socialist core values into the rule of law, the correct implementation of the Civil Code, give full play to the rules of judicial adjudication in national governance, social governance and value-oriented role, to further enhance the credibility and authority of judicial adjudication, and strive to achieve the value of wealth and strength, democracy, civilization, harmony, and strive to pursue freedom, equality, the The value of justice, the rule of law, efforts to practice patriotism, dedication, integrity, friendly values, combined with the actual work of the trial, is to put forward the following views.

　　First, the in-depth promotion of socialist core values into the interpretation of the law in the judgment documents, should adhere to the following basic principles.

　　(A) the combination of the rule of law and moral governance. To Xi Jinping thought of socialism with Chinese characteristics in the new era as a guide, the implementation of Xi Jinping thought on the rule of law, faithful to the Constitution and laws, the organic combination of legal evaluation and moral evaluation, in-depth interpretation of laws and regulations embodied in the national value objectives, social values and civic value guidelines, to achieve the rule of law and moral governance complement each other, complement each other.

　　(2) People-centered. Judgment documents to explain the law should actively respond to the people's new requirements and expectations for fair justice, accurate clarification of the facts, detailed explanation of the legal reasoning, and actively explain the feelings, and strive to reason, and constantly improve the people's satisfaction with judicial decisions, to judicial justice to lead social justice.

　　(C) the organic unity of political, legal and social effects. Based on the times, national conditions, culture, comprehensive consideration of the law, reason, emotion and other factors, strengthen the role of the socialist core values of guidance, and constantly improve the legal identity, social identity and emotional identity of judicial decisions.

　　Second, people's courts at all levels should promote the integration of socialist core values into the interpretation and reasoning of adjudication documents, take socialist core values as important guidelines for understanding the purpose of legislation and legal principles, and as important criteria for testing whether discretionary power is exercised reasonably, so as to ensure accurate determination of facts and correct application of the law. For cases where the results of adjudication are value-led oriented and behavior-regulating, judges should strengthen the use of socialist core values to explain and reason, effectively play the function of judicial adjudication in national governance and social governance of regulation, evaluation, education and leadership, establish rules of behavior with fair adjudication, and cultivate and promote socialist core values.

　　Third, the people's courts at all levels should adhere to the facts as the basis, the law as the criterion. In the interpretation of the law, should be the focus of the dispute, according to the court evidence, cross-examination, court debates and legal investigations, combined with the core socialist values, focusing on the process and reasons for the determination of the facts and application of the law.

　　Fourth, the following cases of adjudication documents, should strengthen the use of socialist core values to explain the law.

 (1) cases involving national interests, major public interests, and widespread social concern

　　(2) Cases involving epidemic prevention and control, rescue and disaster relief, protection of martyrs, righteousness and courage, self-defense, emergency evasion, helping people, etc., which may trigger social moral evaluation

　　(iii) cases involving the elderly, women, children, the disabled and other vulnerable groups, as well as the protection of special groups, where there is a large dispute between the parties to the litigation and may cause widespread social concern.

　　(D) involving public order and morality, customs and traditions, equality of rights, ethnicity and religion, etc., the parties to the lawsuit have a large dispute and may cause widespread concern in society

　　(E) involving new situations, new issues, the need for in-depth interpretation of legal provisions, judicial policies, etc., to lead the social trend and establish value-oriented cases.

　　(F) other cases that should strengthen the use of socialist core values to explain the law.

　　(5) If there are normative legal documents as the basis for adjudication, the judge should first explain the relevant provisions of the normative legal documents in conjunction with the circumstances of the case, and then use the socialist core values to further clarify the legal connotation, clarify the legislative purpose, and discuss the reasons for adjudication in conjunction with the original intent of the law.

Tim Kaine: "I prayed Virginia would end the death penalty" It shows other states how to do the same - The Washington Post

In this opinion piece Senator Tim Kaine celebrates Virginia's elimination of the death penalty.  I understand his gratification that his state which as the capital of the confederacy was the defender of slavery, the executioner of John Brown, and executed more people in its long history than any other state.

I remember the pride I felt when the City of Rome lighted the Colosseum in tribute to New Jersey's legislative repeal of capital punishment in December 2007.  A few months later I organized a day long symposium on repeal at Seton Hall Law School.  The theme was Rabbi Shalom Spiegel's maxim "Justice cools the fierce glow of moral passion by passing it through reflection".  I wrote an introductory essay titled  Herald of Change?  And indeed several states have followed suit, though California and Nebraska took one step forward and one back.

But as I read Kaine's essay I was surprised to learn that he - a former defender in capital cases (and  veteran of the Jesuit Volunteer Corps) - had, while Governor, allowed executions to go forward despite his personal opposition.  Why?  

Could he not have imposed a moratorium?  Virginia Governors serve only one term.  Was he looking forward to running for Senate? Is his acquiescence any different than the New Jersey trial judges and state Supreme Court Justices who acquiesced in the people's legislative will but rigorously reviewed every case?  Employing what Justice John Wallace called "super due process" the New Jersey Supreme Court effectively blocked executions for twenty five years.  Was that complicity in evil, acquiescence or virtuous heeding of the law?  Governor Brendan Byrne had an easy answer.  He vetoed the restoration of the death penalty until term limits pushed him out and traditional Republican moderate conservative Thomas Kean won election.

Notre Dame Professor John Garvey and Amy Coney Barrett (then a Circuit court law clerk) in 1998 proposed that recusal was the right choice for a Catholic judge.  But when Barrett reached the Supreme Court she did not recuse, but allowed the profoundly impaired Lisa Montgomery to be executed for a bizarre and ghastly 2004 killing.  Montgomery was the first woman executed by the federal government United States. 

What does the oath of office require of our officials - judges, Governors and Presidents?  The Supreme Court has held that an order of nuns who object to artificial contraception practiced by their employees may not be compelled to fill out a form declaring entitlement to exemption from providing coverage in their health plans for such medicines.  And the court seems poised to reverse the Third Circuit Court of Appeals which refused to compel Philadelphia to contract with Catholic Social Services which refuses to provide foster care or adoption to unmarried couples or even to same sex married couples of whose union it disapproves.  Is such conscience a command or an option? Was Kaine right to "follow the law" by allowing executions to go forward?  Should he have refused to participate in the capital punishment process?

- GWC

Tim Kaine: Virginia’s ending the death penalty shows other states how to do the same - The Washington Post

By Tim Kaine

Tim Kaine, a Democrat, represents Virginia in the U.S. Senate and was governor of Virginia from 2006 to 2010.

I met my wife, Anne, a native Virginian, in law school in the early 1980s. Idealistic youngsters, we grappled with whether to live in Richmond or my hometown of Kansas City. A key consideration in our choice of Virginia was the Biblical phrase “the harvest is plentiful, but the laborers are few.” There seemed to be so much work to be done here.

As Susan Dunn explains in her book “Dominion of Memories,” Virginia was America’s wealthiest and most populous state until the late 1820s and the producer of a huge percentage of its leaders into the 1840s. But Virginia lost influence toward the end of America’s first century, largely because of its choice to cling to the institution of American slavery it had helped create.

When I arrived in Virginia in 1984 to work as a civil rights lawyer, evidence abounded how much work needed doing. And one of the key struggles was Virginia’s overuse of the death penalty.

Virginia is the death penalty capital of the United States. Beginning with the first execution under a colonial government in 1608, we have executed 1,390 people, more than any other state. Following the Supreme Court’s decision restoring the death penalty in 1976, Virginia has executed more people than any state except Texas. And the painful history exposes the fundamental racism of capital punishment.

In the 19th century, Virginia executed 513 Black people and only 41 Whites. Before the Civil War, the criminal code made certain crimes capital offenses for Black residents that were noncapital offenses for White people. And even after the Civil War, when crimes such as rape were technically capital offenses for everyone, the ultimate punishment was used only against Black people. Fifty-six people were executed for rape or attempted rape in Virginia between 1908 and 1965 — all were Black.

As I began my legal career, I represented death-row inmates on a pro bono basis. One prisoner was executed in 1987; we shared his last meal a few minutes before the state electrocuted him. I represented another executed in 1996, walking him into the death chamber and holding his hand while he was strapped to a table for the state to kill him by lethal injection. These searing experiences, face-to-face with the humanity of my clients, made me pray for the day when Virginia would discard this brutal institution.

Early in my political career, a campaign consultant looked at the cases I had worked on and said, “You clearly never planned on running for office.” And my lifelong opposition to the death penalty became the key political weapon against me in the 2005 governor’s race, with ads featuring victims’ suffering families and claims I wouldn’t even execute Hitler. My victory despite these attacks suggested a softening of the public’s position on the death penalty.

As governor I kept my word to Virginians that I would follow the law by allowing numerous executions to go forward. The days those sentences were carried out were among the worst of my life. But I vetoed many bills expanding the death penalty and helped implement changes to professionalize and better compensate criminal defense attorneys. The combination of shifting popular attitudes and a commitment to high-quality defense teams had essentially halted new death sentences. The last capital conviction in Virginia was 10 years ago, and that case was reversed on appeal.

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Seeing 'Political Grandstanding' in Election Lawsuit, Judge Orders Attorney to Face Grievance Committee | National Law Journal

Seeing 'Political Grandstanding' in Election Lawsuit, Judge Orders Attorney to Face Grievance Committee | National Law Journal

A federal judge in Washington, D.C., ordered that an attorney who filed a long-shot lawsuit over the 2020 election results must face a grievance committee, finding the attorney “has not sufficiently allayed the court’s concerns regarding potential bad faith.”

Attorney Erick Kaardal filed the lawsuit in December on behalf of several Republican state lawmakers and groups, targeting then-Vice President Mike Pence, the Electoral College and other institutions and leaders in an apparent attempt to block President Joe Biden’s win in the 2020 election. U.S. District Judge James Boasberg of the District of Columbia in early January rejected the lawsuit, and suggested it was an act of “gamesmanship or symbolic political gesture.”

Boasberg said in a four-page opinion issued Friday that Kaardal, special counsel for the Thomas More Society’s Amistad Project and an attorney with the Minneapolis-based firm Mohrman, Kaardal & Erickson, had not adequately addressed concerns about “the flimsiness of the underlying basis for the suit.”

Kaardal and his attorneys with the firm Eccleston and Wolf did not immediately return a request for comment.

Oath Keepers - superseding indictment for January 6 Capitol attack

CBS News reports that the United States Department of Justice yesterday day filed a superseding indictment against Thomas Caldwell and eight others associated with the Oath Keepers, a right wing paramilitary organization.  They are charged in a multi-count indictment which alleges that

As described more ful1y herein, CALDWELL, CROWL, WATKINS, SANDRA PARKER, BENNIE PARKER, YOUNG, STEELE, KELLY MEGGS, and CONNIE MEGGS, planned with each other, and with others known and unknown, to forcibly enter the Capitol on January 6, 2021, and to stop, delay, and hinder the Congressional proceeding occurring that day.