Wednesday, June 30, 2021

Day of Rage : Inside the January 6 Capitol Riot - NY Times

 Today only two Republican Members of Congress voted for the resolution to establish a committee to investigate the events of January 6.  We have never seen anything like this in American history since the days that white vigilantes defeated the Reconstruction governments, installing all white government in the south for 90 years.

The rage, the self-righteousness of this mob, in face to face fights with thinly staffed Capitol police, tells us that we are in grave danger.

The Times video investigation team has done an impressive job of conveying the scale and seriousness of the January 6 insurrectionary attack.  They sought to block the peaceful transfer of power to a President who won an election which is legally - constitutionally - skewed in favor of the small and often thinly populated states. - GWC


Presidential Commission on the Supreme Court - June 30, 2021

Presidential Commission on the Supreme Court - hearing June 30, 2021


David Strauss Guess What: You are an Originalist After AllEric Segall - The Originalism Blog

David Strauss Guess What: You are an Originalist After AllEric Segall - The Originalism Blog
by Eric Segall

The most recent entry in the “originalism is our law” sweepstakes is Ilan Wurman’s “A Debt Against the Living: An Introduction to Originalism.”  [Ed.:  see also here for a podcast discussion of the book.]  This 135-page book is an excellent “introduction” to many difficult questions pertaining to constitutional interpretation.  However, as is the case with so much scholarship these days, its conclusions are “originalist” only if originalism and pluralistic theories of constitutional interpretation, including what the author refers to as “living constitutionalism,” are one and the same.

The book tackles two important questions: how should we read the Constitution, and is the Constitution worth keeping today. The author has a wonderful Hemmingwayish turn of phrase which makes the style of the book accessible to any reader interested in constitutional interpretation. Law students would benefit from reading the book (provided they are well-supervised, see below).

Wurman argues that we first need to understand what the Constitution says before we can decide whether to keep it. I’m willing to go with that chronology as a logical matter, but this review tackles the second question first.

Wurman describes three major theories of constitutional legitimacy: the “libertarian school,” the “progressive-originalist school,” and the conservative school.” (p.47). Libertarians argue that the Constitution “must protect natural rights.” Progressive-Originalists believe that the Constitution “must allow for responsiveness to contemporary politics.” Conservatives believe that legitimacy “is rooted in an act of popular sovereignty when the people ratified the Constitution in 1789.” (pp. 48-49). These theories correspond to the work of Randy Barnett, Jack Balkin, and Keith Whittington, Mike Rappaport and John McGinnis, respectively.

The descriptions are as accurate as 18 pages will allow. Wurman treats each scholar fairly and concludes that the Constitution is legitimate because each theory has something important going for it. He concludes that if “the Constitution protects natural rights, creates a republican form of government, and is rooted in an act of popular sovereignty, then prudence demands that we obey it today, whatever its imperfections.” (p.81).

Fair enough, though I wish Wurman had spent more time than he does on the exclusion of women and minorities from the ratification processes. His essential response is a shrug of the metaphorical shoulder. Well, no one is perfect and we must accept the founders’ world that they were living in not some make-believe place: “The Founding was as legitimate as could be for its time.” (p.64). Maybe, but the question is whether the Constitution is legitimate today, not in 1787 when only white males could vote and hold most important jobs.

Sanctions upheld vs. Democrats Election Lawyer March Elias

 Democrats election super-lawyer Marc Elias, of Perkins Coie, and two others have seen sanctions against them upheld by the U.S. Court of Appeals for the Fifth Circuit in New Orleans.   They were compelled to pay counsel fees for filing a motion without disclosing that another panel had considered the issue and ruled adversely.  Former Solicitor General Paul Clement, a Republican,  represented Elias on appeal.  Clement warned that sanctioning a "good faith mistake" would send a chilling message to lawyers about the risks of vigorous advocacy - punishing narrow, technical violations such as here for an alleged "lack of candor" in violation of local court rules.

Monday, June 28, 2021

Standing - a "doctrine" like no other - Eric Segall

 Standing - A Doctrine Like No Other

By Eric Segall

There is one constitutional law doctrine that rears its ugly head across the spectrum of controversial issues. It has played a role in civil rights cases, environmental cases, privacy cases, free speech controversies, separation of powers disputes, and in numerous other areas of constitutional law. It is also the one doctrine that virtually all commentators, left, right, and middle believe is singularly incoherent. That doctrine is standing, and it is a doctrine like no other.

The week before last, the Supreme Court used standing to reject yet another challenge to the Affordable Care Act. The Justices held that neither the states nor the individual plaintiffs in California v. Texas satisfied the all too familiar three part test that the Court has used for the last fifty years to determine standing: every plaintiff in federal court must suffer a personal injury caused by the defendant that can be redressed by a favorable court ruling. In a previous post, I documented the incoherence of the personal injury prong of the standing test (that prong was used by the Court on Friday of last week to deny standing to plaintiffs who were quite obviously injured under federal fair credit reporting laws). In this post, I address the causation prong, which was the one at issue in the ACA case.

Joe Biden and Catholicism in the United States on Vimeo

Joe Biden and Catholicism in the United States on Vimeo
Panel discussion with Villanova historian of theology Massimo Faggioli.  Recorded May 19, 2021
Joined by Chris White (NCR), Laura Olson (Clemson), and Michael Baur (Fordham).  I was the moderator.  Sponsored principally by the Fordham Institute for Law, Religion and Lawyers' Work. - GWC

The Supreme Court is an anti-democratic force - Nikolas Bowie



Nikolas Bowie's statement to the Presidential Commission on the Supreme Court  is a breath of fresh air - throwing away the reverential cant  in which the Supreme Court is routinely cloaked.  I have touched on many of these points in classes and blog posts over the years, but never with the clarity and candor Bowie brings to the fore. - GWC

Presidential Commission on the Supreme Court of the United States

The Contemporary Debate over Supreme Court Reform: Origins and Perspectives 

 Co-Chair Rodriguez, Co-Chair Bauer, and members of the Commission, thank you for inviting me to testify. You have asked for my opinion about the causes of the current public debate over reforming the Supreme Court of the United States, the competing arguments for and against reform at this time, and how the commission should evaluate those arguments. The cause of the current public debate over reforming the Supreme Court is longstanding: Americans rightfully hold democracy as our highest political ideal, yet the Supreme Court is an antidemocratic institution. 

The primary source of concern is judicial review, or the power of the Court to decline to enforce a federal law when a majority of the justices disagree with a majority of Congress about the law’s constitutionality. I will focus on two arguments for reforming the Supreme Court, both of which object to the antidemocratic nature of judicial review. 

First, as a matter of historical practice, the Court has wielded an antidemocratic influence on American law, one that has undermined federal attempts to eliminate hierarchies of race, wealth, and status. 
Second, as a matter of political theory, the Court’s exercise of judicial review undermines the value that distinguishes democracy as an ideal form of government: its pursuit of political equality. 

Both arguments compete with counterarguments that judicial review is necessary to preserve the political equality of so-called discrete and insular minorities. But even accepting that the political equality of all Americans should be protected, the justification for judicial review is not persuasive as a matter of practice or theory. I believe you should evaluate the proposals for reforming the Supreme Court by asking whether they will make the United States more democratic...

Sunday, June 27, 2021

Garry Wills | The Bishops Are Wrong About Biden — and Abortion - The New York Times

A footnote to Wills:  I do not remember a word being spoken or printed about abortion in my many years of Catholic  catechetical education.  It's a post Roe phenomenon.  Nonetheless I think that Wills is too dismissive here.  - GWC
Opinion | The Bishops Are Wrong About Biden — and Abortion - The New York Time
What is the worst crime a society can commit? Some people (I among them) would say the Holocaust, the cold methodical murder of six million people just for being Jews.

But some Catholics and evangelicals say they know of an even greater crime — the deliberate killing of untold millions of unborn babies by abortion. They have determined that a fetus is a person and abortion is therefore murder. This is a crime of such magnitude that some Catholic bishops are trying to deny the reception of Holy Communion by the president of the United States for not working to prevent it.No one told Dante that this was the worst crime, or he would have put abortionists, not Judas, in the deepest frozen depths of his Inferno. But in fact he does not put abortionists anywhere in the eight fiery tiers above the deepest one of his Hell.
This is not a singular omission. No one told “Matthew” or “Mark” or “Luke” or “John” or Paul, or any other New Testament author, that he should condemn this sin of all sins. Nor did any author of the Old Testament raise this alarm, with the result that we do not have Moses or Jesus on record as opposing abortion. Nor did any of the major definitive creeds. 

Opinion | As the Giuliani case goes forward, courts should think deeply about the First Amendment - The Washington Post

Opinion | As the Giuliani case goes forward, courts should think deeply about the First Amendment - The Washington Post
By Bruce Green (Fordham) and Rebecca Roiphe (New York Law) 

A New York appellate court has temporarily suspended former mayor Rudolph Giuliani’s law license, writing that he had made “demonstrably false and misleading statements to courts, lawmakers and the public at large.” Just as lawyers who participated in the Watergate scandal were held to account, so too should former president Donald Trump’s lawyers pay a price if they engaged in illegal or unethical conduct. As this case continues, however, the disciplinary agency and courts should be careful not to chill lawyers’ political speech.

The court’s opinion recounts Giuliani’s misleading statements that cast doubt on the legitimacy of the presidential election and concludes that he knew they were false. These were specific statements, not just hyperbole or opinion. For example, the opinion says, Giuliani falsely asserted that more absentee ballots were received than had been mailed out in Pennsylvania, and that tens of thousands of underage voters, 2,500 felons and 800 deceased people voted in Georgia.....

Friday, June 25, 2021

Clients with diminished Capacity - Proposed formal opinion - California State Bar invites comments



The California State Bar, in response to previous public comments, has announced a revision to  its proposed Opinion 13-0002 regarding representation of clients with diminished capacity.  The new comment period ends August 24. 
Professional Responsibility and Conduct Formal Opinion Interim No. 13-0002
THE STATE BAR OF CALIFORNIA STANDING COMMITTEE ON PROFESSIONAL RESPONSIBILITY AND CONDUCT FORMAL OPINION INTERIM NO. 13-0002

 ISSUES: What are the ethical obligations of a lawyer for a client with diminished capacity? 

DIGEST: A lawyer for a client with diminished capacity should attempt, insofar as reasonably possible, to preserve a normal attorney-client relationship with the client, that is, a relationship in which the client makes those decisions normally reserved to the client. The lawyer’s ethical obligations to such a client do not change, but the client’s diminished capacity may require the lawyer to change how the lawyer goes about fulfilling them. In particular, the duties of competence, communication, loyalty, and nondiscrimination may require additional measures to ensure that the client’s decision-making authority is preserved and respected. In representing such a client, a lawyer must sometimes make difficult judgments relating to the client’s capacity. Provided that such judgments are informed and disinterested, they should not lead to professional discipline. 

In some situations, the client’s lack of capacity may require that the lawyer decline to effectuate the client’s expressed wishes. When the lawyer reasonably believes that the client’s diminished capacity exposes the client to harm, the lawyer may seek the client’s informed consent to take protective measures. If the client cannot or does not give informed consent, the lawyer may be unable to protect the client against harm. A lawyer representing a competent client who may later become incapacitated may propose to the client that the client give advanced consent to protective disclosure in the event that such incapacity occurs. If appropriately limited and informed, such a consent is ethically proper. 

AUTHORITIES INTERPRETED: Rules of Professional Conduct 1.0.1(e), 1.1, 1.2, 1.4, 1.6, 1.7, and 8.4.1 of the Rules of Professional Conduct of the State Bar of California.1 Business and Professions Code section 6068(e)

New ABA data parses out bar exam pass rates by race and ethnicity



The racial gap is unsurprising  none the less troublesome.  Even 34%of African American students fail the first time they take the test but it increases to 79%.  Still that's a lot of disappointment.  More support for such students - pedagogically and financially - seems to be called for. - GWC
New ABA data parses out bar exam pass rates by race and ethnicity

According to data released Tuesday by the American Bar Association's Section of Legal Education and Admissions to the Bar, 87.65% of the white candidates who took a bar exam for the first time in 2020 passed. For people of other races or ethnicities, the first-time pass rate ranged from 66.28% to 79.92%.

According to the data, in 2020 there were 19,453 first-time test-takers who were white. Among other first-time test-takers:

  • The pass rate for Asians was 79.92% out of a total of 1,972 candidates.
  • The pass rate for Native Americans was 78.02% out of a total of 182 candidates.
  • The pass rate for Hawaiians was 77.5% out of a total of 40 candidates.
  • The pass rate for Hispanics was 75.59% out of a total of 3,638 candidates.
  • The pass rate for Blacks was 66.28% out of a total of 2,328 candidates.

Additionally, the data said the pass rate for a total of 1,020 first-time test-takers of mixed race was 81.76%. There were 182 test-takers who were nonresidents of the U.S., and their pass rate was 86.34%.


 Two-year pass rates, which are based on people who graduated from law school in 2018:

  • The pass rate for whites was 92.91% out of a total of 20,101 test-takers.
  • The pass rate for Asians was 88.2% out of a total of 2,170 test-takers.
  • The pass rate for Native Americans was 86.46% out of a total of 192 test-takers.
  • The pass rate for Hispanics was 84.45% out of a total of 3,808 test-takers.
  • The pass rate for Blacks was 79.29% out of a total of 2,641 test-takers.
  • The pass rate for Hawaiians was 71.43% out of a total of 35 test-takers.

Thursday, June 24, 2021

NJ: Non-Legal Companies Offering Legal Services to Customers Engage in Unauthorized Practice; Lawyers Providing Legal Services to Company’s Customers Violate RPCs - Joint UPL/ACPE Opinion - UPL Opinion 58/ACPE Opinion 740 -



Two Committees of the New Jersey Supreme Court have barred a non-lawyer owned company that "matches" clients to lawyers who will represent them regarding traffic violations. The Advertising Committee itself has disciplinary authority and the Advisory Committee on Professional Ethics published opinions compel compliance by any attorney practicing in the state, subject only to discretionary review by the Court itself. - GWC
Joint UPL/ACPE Opinion - UPL Opinion 58/ACPE Opinion 740 - Non-Legal Companies that Offer Legal Services to Customers Engage in the Unauthorized Practice of Law; Lawyers Who Provide Legal Services to the Company’s Customers Violate the Rules of Professional Conduct

The Committee on the Unauthorized Practice of Law (UPL Committee) considered a grievance about a company that offers legal services to customers to resolve their traffic ticket cases. Customers pay the company a flat fee and the company “matches” the user with a lawyer who will represent the customer in municipal court. The customer contracts for legal services with the company. 

Companies that are not law firms cannot provide legal services to customers of the companies, either through staff lawyers or by furnishing outside lawyers. UPL Opinion 25 (January 1992); Stack v. P.G. Garage, Inc., 7 N.J. 118 (1951); N.J. State Bar Ass'n v. Northern N.J. Mortgage Associates, 22 N.J. 184 (1956), modified 34 N.J. 301 (1961).
The UPL Committee finds that the company is engaging in the unauthorized practice of law. 

The Advisory Committee on Professional Ethics finds that lawyers who provide legal services to customers of such companies are assisting the company in the unauthorized practice of law, in violation of Rule of Professional Conduct 5.5(a)(2). If the lawyer receives the fee from the company, the lawyer is impermissibly fee-sharing in violation of Rule of Professional Conduct 5.4(a). Further, a lawyer who is recommended or paid by the company to furnish legal services to the company’s customers violates Rule of Professional Conduct 7.3(e).

"Price lists for client leads" likely violate bar on referral fees: NJ Supreme Court Committees


A Joint Opinion of two committees of the Supreme Court of New Jersey sharply cautions lawyers regarding paying marketing companies for "referrals" of clients.  The issue before the two committees Advertising and Ethics Advisory involves marketers who "price referrals" based not on advertising costs but on the potential lucrativeness of the case leads provided.

Unlike bar association opinions which provide guidance, the two New Jersey Committees carry the authority of the court - though any bar association or licensed lawyer can petition the Court for review.

- GWC

COMMITTEE ON ATTORNEY ADVERTISING ADVISORY COMMITTEE ON PROFESSIONAL ETHICS Appointed by the Supreme Court of New Jersey 

JOINT OPINION Committee on Attorney Advertising Opinion 47  Advisory Committee on Professional Ethics Opinion 741:   Lawyers Shall Not Pay For Client Referrals; Purported “Leads” Offered by Marketing Companies May Be Disguised Referrals

 The Committee on Attorney Advertising has been made aware that an out-of-state marketing company is sending emails to New Jersey lawyers offering to connect the lawyers with clients for specific mass tort cases. The emails list prices for claimants “starting at” $700 for persons adversely affected by the drug Zantac; $500 for persons injured by faulty earplugs made by 3M; $1,000 for persons suffering side effects after hernia mesh surgery, and $1,800 for persons whose eyesight was damaged by the drug Elmiron. The emails also state that the company can provide names of claimants who suffered sex abuse by clergy. The company states that it has an 86% “retention rate.” 

As the activity concerns potential violations of the ethics 2 rules governing referrals and fee-sharing, the Committee on Attorney Advertising and the Advisory Committee on Professional Ethics issue this Joint Opinion to remind lawyers that they are prohibited from paying for client referrals, and purported “leads” offered by marketing companies may be disguised referrals. This activity raises concerns about violation of Rule of Professional Conduct 7.3(d), which provides: 

A lawyer shall not compensate or give anything of value to a person or organization to recommend or secure the lawyer’s employment by a client, or as a reward for having made a recommendation resulting in the lawyer’s employment by a client except that the lawyer may pay for public communications permitted by RPC 7.1 and the usual and reasonable fees or dues charged by a lawyer referral service operated, sponsored, or approved by a bar association. 

Accordingly, lawyers may not pay a non-lawyer or marketing company to refer clients to them.

Rudy Giuliani suspended by NY Appellate Division


 
The opinion:

Supreme Court of the State of New York Appellate Division, First Judicial Department Rolando T. Acosta, P.J., Dianne T. Renwick Sallie Manzanet-Daniels Judith J. Gische Barbara R. Kapnick, JJ. Motion No. 2021-00491 Case No. 2021-00506 

 The Attorney Grievance Committee moves for an order, pursuant to Judiciary Law §90(2) and the Rules for Attorney Disciplinary Matters (22 NYCRR) §1240.9(a)(5), immediately suspending respondent from the practice of law based upon claimed violations of rules 3.3(a); 4.1; 8.4(c) and 8.4(h) of the Rules of Professional Conduct (22 NYCRR 1200.0) (Rules of Conduct or RPC). 

Respondent was admitted to practice as an attorney and counselor at law in the State of New York on June 25, 1969, under the name Rudolph William Giuliani. He maintains a law office within the First Judicial Department.

 For the reasons that follow, we conclude that there is uncontroverted evidence that respondent communicated demonstrably false and misleading statements to courts, lawmakers and the public at large in his capacity as lawyer for former President Donald J. Trump and the Trump campaign in connection with Trump’s failed effort at reelection in 2020. These false statements were made to improperly bolster respondent’s narrative that due to widespread voter fraud, victory in the 2020 United States presidential election was stolen from his client. 

We conclude that respondent’s conduct immediately threatens the public interest and warrants interim suspension from the practice of law, pending further proceedings before the Attorney Grievance Committee (sometimes AGC or Committee).

Wednesday, June 23, 2021

The Supreme Court's union-busting decision in Cedar Point Nursery.




Why do the Supreme Court's  conservative Catholics hate unions?  I guess Pope Leo XIII doesn't matter anymore.   Another case of `following the law, not the Catechism', I suppose.  Absolutism about property rights is one of current day conservatives' worst stances.  But for them it is a first principle.
For some of us ​Delano - the base of  the United Farmworkers' -  was hallowed ground.  Boycott grapes buttons were liberal icons.  For some of us it started with Dorothy Day and the Catholic Worker movement whose principles and pacifism were fused with those of Martin Luther King.  The night before he was murdered Robert F. Kennedy attended mass at Cristo Rey chapel in Oxnard with Cesar Chavez.
Excluded from the National Labor Relations Act, agricultural workers won a big victory via the California law which gave the union the right to go into the fields to reach the workers.  This week in Cedar Point Nursery v. Hassid the United States Supreme Court's anti-labor majority took that right away.  It expanded the concept of "taking" so broadly that the case threatens much more than the farmworkers union which will be its first victim.

- GW - GWC
The Supreme Court's union-busting decision in Cedar Point Nursery.
by Mark Joseph Stern // SLATE

n the 1960s, the United Farm Workers began demanding better pay and working conditions for California’s agricultural workers, who were subject to egregious exploitation and abuse. Led by César Chávez and Dolores Huerta, the union’s campaign culminated in the passage of the California Agricultural Labor Relations Act. Among other guarantees, this landmark law granted union organizers limited, temporary access to agricultural workplaces to speak with laborers. Businesses challenged the act as a violation of their property rights, but in 1976, the U.S. Supreme Court dismissed the case “for want of a substantial federal question.”

The Supreme Court of 2021—stacked, as it is, with six conservative Republican-appointed justices—sees things differently. On Wednesday, the court’s conservative supermajority held that California’s law violates the Fifth Amendment, which bars the taking of private property for public use “without just compensation.” Remarkably, the majority held that the law constitutes a “per se taking”—not a mere regulation, but an “appropriation” of property that flouts the owners’ “right to exclude.” The court’s 6–3 decision in Cedar Point Nursery v. Hassid is thus a crushing blow to organized labor, which often relies on workplace access to safeguard workers’ rights. It also undermines the broader legal framework that permits the government to impose all manner of regulations on private property, including workplace safety laws and nondiscrimination requirements. With Cedar Point, the Supreme Court has handed business owners a loaded gun to aim at every regulation they oppose.

General Mark Milley on `Critical Race Theory' - in congress

 We have long grown accustomed to hearing bland, ritualistic statements by Generals trying to stay out of politics.  But Mark Milley - Chairman of the Joint Chiefs of Staff -has delivered a dramatic rebuke to the phony posturing of Republicans about `critical race theory'.  About which they, unlike the General -  know nothing.

- GWC


Why Justice Breyer Will Resign at the End of This Court Term|| Randall Kennedy

Why Justice Breyer Will Resign at the End of This Court Term: Despite a lot of words about not politicizing the Court, he will do the right thing—and his former clerk is likely to take his seat.

Tuesday, June 22, 2021

A Message for President Biden on the U.S. Catholic Bishops and Communion - The New York Times

Monument to Archbishop Romero,
murdered on the altar


Opinion | A Message for President Biden on the U.S. Catholic Bishops and Communion - The New York Times
Mr. Perriello, the U.S. executive director of Open Society Foundations, is a former diplomat and member of Congress.]
The last time I took communion was in El Salvador, not long before the pandemic. As a Roman Catholic, I enjoy exploring how Mass is experienced and enriched by different cultures. But I had a more urgent reason for searching out this ritual abroad. It provided my only chance to take the Eucharist, because I quietly decided 10 years ago that I could not in good conscience do so under the auspices of the United States Conference of Catholic Bishops.
While the Catholic Church is far from infallible overseas, I frequently bear witness to Catholic leaders reminding me why my faith called me to a career promoting peace and justice. But back home, the persistent efforts by conservative bishops to arbitrate who among the faithful receives communion, while failing to practice the confession and penance they demand of others, reinforces why the American bishops so often stand alone.
When the bishops met on Friday, they could have voiced their support for today’s economic and racial justice movements. They could have backed congressional efforts to guarantee dignity for children, parents, the aging and the workers who care for them. Instead, these men who benefit from a lifetime guarantee of housing, health care and income voted to back a measure that could be an early step toward limiting communion for President Biden — a man of compassion, empathy and lived but quiet faith.
This is not the first time the bishops have challenged a practicing Catholic who supports abortion rights. Former Senator John Kerry of Massachusetts was targeted by conservative bishops, some of whom even criticized Boston’s archbishop for presiding over former Senator Ted Kennedy’s funeral Mass.

Monday, June 21, 2021

Dorf on Law: John Roberts: Hubris-in-Chief

Dorf on Law: John Roberts: Hubris-in-Chief
by Eric Segall (Georgia State)


The prevailing wisdom both inside and outside legal academia is that Chief Justice John Roberts is first and foremost an institutionalist who cares deeply about his personal legacy and how his Court will be viewed when he finally retires. Supreme Court commentators point to his two (as of last Thursday three) votes to uphold the Affordable Care Act, as well as his decision to abide by the Court’s precedent when he invalidated two abortion laws in June Medical v. Russo last year, as the main support for the notion that the Chief sometimes subsumes his personal preferences for the greater good of Supreme Court legitimacy over time. His extremely narrow opinion for the Court in Fulton v. City of Philadelphia last week in favor of a Catholic social services agency joined in full by the Court's three liberals may well be seen in the same light. Court watchers on both the left and the right seem to share this narrative.

This oft-told tale, however, is mostly fiction.  The reality is that the defining feature of Chief Justice Roberts’ jurisprudence is not his alleged institutionalism but his non-judicial hubris.

Across the spectrum of our most contested and controversial constitutional law questions, the Chief has reached out to coerce local, state, and federal government officials to govern according to his personal wishes whether or not positive legal sources supported his preferences. He has voted to dictate important governmental policies in cases ranging from health care to affirmative action to campaign finance reform to voting rights to the separation of church and state to the separation of powers. In all of these areas, as well as many more, the Chief has used catchy sound bites and worn cliches as justifications for ignoring and/or distorting what is supposed to be the stuff of constitutional interpretation: text, history, and prior case law. 

I am working on a law review article supporting this thesis with detailed discussions of the Chief's opinions in all of the areas discussed above. For this blog post, however, I will use affirmative action as a representative example of the Chief's hubris, which is timely given the Court is currently considering whether to hear an important case involving Harvard's use of race in its admissions process.

Sunday, June 20, 2021

Opinion | A Message for President Biden on the U.S. Catholic Bishops and Communion - The New York Times

Opinion | A Message for President Biden on the U.S. Catholic Bishops and Communion - The New York Times
by Tom Perriello

Lawyers press D.C. Bar Ethics Board to investigate William Barr



Last July a distinguished group of lawyers including  ten former Presidents of the D.C.Bar joined together to file a Request for Oversight of their comprehensively detailed demand for an investigation of the conduct while in office of the former Attorney General William Barr.  Spurned by the Office of Disciplinary Counsel, the group has now appealed to William Kaiser, Chair of the Board on Professional Responsibility to exercise the Board's oversight authority.

Lead signers include 
Gershon (Gary) Ratner, Co-Founder, Lawyers Defending American Democracy, Former HUD Associate General Counsel for Litigation 
Dori Bernstein, Retired Director, Supreme Court Institute, Georgetown Univ. Law Center, Former appellate attorney, Office of General Counsel, U.S. Equal Employment Opportunity Commission Charles R. Both, Law Offices of Charles R. Both 
John C. Brittain, Olie W. Rauh Professor of Law University of the District of Columbia David A. Clarke School of Law 
Katherine S. Broderick, Dean Emerita and Joseph L. Rauh, Jr. Chair of Social Justice, University of the District of Columbia David A. Clarke School of Law 
Susan Carle, Professor of Ethics Law and Vice-Dean, American University, Editor of Lawyers’ Ethics and the Pursuit of Social Justice (NYU Press 2005) 
Letter-to-Matthew-Kaiser-BPR-Chair.pdf

***This rejection of the Complaint apparently reflects a policy of the ODC with respect to certain complaints of misconduct against public figures, namely to “not intervene in matters that are currently and publicly being discussed in the national political arena.” This policy of nonintervention, however, is flatly contrary to the dictates of Rule XI which provides that the ODC has the “power and duty . . . to investigate all matters involving alleged misconduct by an attorney . . . which may come to the attention of Disciplinary Counsel or the Board from any source whatsoever, where the apparent facts, if true, may warrant discipline.” Rule XI therefore does not permit the ODC to treat a good faith complaint about unethical conduct as an improper request for “intervention” in a public matter, nor to justify the rejection on the other grounds provided to us. Beyond violating Rule XI, the ODC policy undermines the necessary confidence of the Bar and the public in the integrity of the disciplinary process governing our profession. We respectfully request the Board to declare the policy invalid and order the ODC to reconsider the Complaint and the Supplement against former Attorney General Barr. We set forth additional background and our support for our request in more detail below. 

Friday, June 18, 2021

On Our First Juneteenth - the national holiday




On the first Juneteenth - our national holiday

 On January 1, 1863 the Emancipation Proclamation went into effect. Eleven months later on November 19 at the Gettysburg battleground Lincoln dedicated the Union lives lost to the vindication of the promise of life, liberty and the pursuit of happiness made four score and seven years before. But the war continued.
Two and half years later on June 19, 1865 Union Army General George Granger declared that the quarter million slaves in Texas were now free. 

 Congress had on January 31st passed the 13th Amendment: "Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States”. Ratified on December 6, 1865, the 13th was soon followed by the 14th and 15th Amendments promising equal protection and the right to vote regardless of race. 

 Although those events were a second founding, none of those dates has been embedded in the nation’s consciousness like Independence Day has been. 
 But African Americans in Texas have long celebrated `Juneteenth’. Now we all will. After a year of plague, conflict, and even insurrection, as the country re-emerges we now have a hoped for moment of unity. 

 Last Wednesday the House of Representatives voted 415-14, joined by a unanimous Senate to declare Juneteenth a new national holiday - promptly celebrated on Saturday after gaining the signature of President Joseph R. Biden. We hope everyone had a peaceful and reassuring first Juneteenth. We wish ourselves and the country many more. 
- GWC June 17, 2021

Introduction to the U.S. Legal System - video

 

Wednesday, June 16, 2021

Unanimous ruling on crack-cocaine disparity is heavy on text, light on history - Ekow Yankah SCOTUSblog

As Professor Yankah points out, it fell to Sonia Sotomayor to "tell it like it is" in an opening footnote to her concurring opinion.***  I lived in Washington Heights in the height of the crack epidemic which spurred heavily punitive responses, unlike the more sympathetic reactions to the current opioid epidemic.
Unanimous ruling on crack-cocaine disparity is heavy on text, light on history - SCOTUSblog
by Ekow Yankah

Sometimes, deep, conflicting social currents clash in titanic movements and romantic prose. Other times, they are submerged under rather drier land; underground rivers in a desert of language. On Monday, the Supreme Court, in a unanimous decision, held that decades of roiling political turmoil surrounding the crack-cocaine epidemic could not compel a rereading of a single, highly consequential statutory clause, even if its primary authors pressed a different interpretation. Thus, in Terry v. United States, the Supreme Court held that low-level crack-cocaine dealers are not eligible for resentencing under the First Step Act, which in 2018 made higher-level offenders who received mandatory minimum sentences eligible for resentencing.

The opinion was written by Justice Clarence Thomas. One might speculate – and it is pure speculation on my part – that it was not coincidental that the court’s only Black justice was tasked with writing a case with deep racial implications. As recounted earlier, in 2008, Tarahrick Terry, then in his early 20s, was arrested in Florida for carrying just under 4 grams of crack cocaine. He was charged under 21 U.S.C. § 841(a)(1), which outlaws possession with intent to distribute crack cocaine, and sentenced under 21 U.S.C. § 841(b)(1)(C), a provision of the 1986 Anti-Drug Abuse Act that created a 100:1 disparity in the punishment of crack cocaine compared to powder cocaine. Section 841(b) sets forth three tiers of penalties, with Tier 3 offenses typically involving smaller amounts of drugs than Tiers 1 or 2. Terry was sentenced under Tier 3. Further, because he had two prior minor convictions as a teenager, he was punished as a “career criminal” and sentenced to just over 15 1/2 years imprisonment under the career-offender provisions of the U.S. Sentencing Guidelines.


**** Sotomayor, concurring

fn1 1 I do not join Part I of the Court’s opinion because it includes an unnecessary, incomplete, and sanitized history of the 100-to-1 ratio. The full history is far less benign. The Court, ante, at 2, n. 2, emphasizes Black leaders’ support for “tough-on-crime” policies, but ignores that these leaders “also called for federal investment in longer-term, rootcause solutions such as welfare, education, and job training programs.” J. Forman, Locking Up Our Own 157 (2017) (Forman). But “[t]he help never arrived,” leaving Black communities with “just the tough-on-crime laws” and little else. Id., at 12. Nor does the Court mention that the “ ‘careful deliberative practices of the Congress were set aside’ ” for the 1986 omnibus crime bill that included the 100-to-1 ratio, as part of a “rush to pass dramatic drug legislation before the midterm elections.” Sklansky, Cocaine, Race, and Equal Protection, 47 Stan. L. Rev. 1283, 1294, and n. 55 (1996) (Sklansky). Indeed, the “legislative history offers no explanation for the selection of a ratio of 100:1,” save that it “was the highest ratio proposed.” Id., at 1297. There is, by contrast, an extensive record of race-based myths about crack cocaine that the media “branded onto the public mind and the minds of legislators,” United States v. Clary, 846 F. Supp. 768, 783 (ED Mo. 1994), and that appear in the Congressional Record, see Sklansky 1291–1295, and nn. 49–60. Most egregiously, the Court barely references the ratio’s real-world impact (discussed infra, at 3–4), and disregards the fact that, “as the racial effects of mandatory minimums and the crack/cocaine disparity became apparent, the [Congressional Black Caucus] came together in unanimous and increasingly vocal opposition to the law.” Forman 205. the disparity were introduced almost every year from 1993 to 2009. Yet Congress did nothing until 2010.

Supreme People's Court Expands Scope of Interpretive Review o Trial Courts

 Supreme People's Court

Decision on Amending the Regulations of the Supreme People's Court on the Work of Judicial Interpretation

(Adopted by the Judicial Committee of the Supreme People's Court on June 8, 2021

Adopted at the 1841st meeting, effective as of June 16, 2021)

In accordance with the needs of trial and implementation work, the 1841st meeting of the Judicial Committee of the Supreme People's Court decided to amend the Regulations of the Supreme People's Court on Judicial Interpretation as follows.

Amend the first paragraph of Article 6 to read: "The form of judicial interpretation is divided into five kinds:  'interpretation', 'regulation', 'rule', 'rule approval' and 'decision' "

After the third paragraph of Article 6, a paragraph is added as the fourth paragraph: "Judicial interpretations on regulating the trial and execution activities of the people's courts, etc., may take the form of 'rules'."

The original Article 6, paragraph 4 and 5 as Article 6, paragraph 5 and 6.

This decision shall come into force on June 16, 2021.

In accordance with this decision, the Regulations of the Supreme People's Court on the Work of Judicial Interpretation are republished with corresponding amendments.

DeepL translation

Monday, June 14, 2021

Kentucky remembers slavers, not slaves as racists attack `critical race theory'

 

John Pollard Gaines, Member of Congress from Kentucky, Governor of the Oregon Territory,
slaveholder 


Dan Farbman tweets the story of Margaret Garner, a slave who escaped to Ohio.  On capture she killed one of her children, and tried to kill the others and herself rather than be returned to slavery under the Fugitive Slave law.  She failed, and after a highly publicized trial was sold down river by Gaines, and  died doing hard labor on a Mississippi plantation.  Her story was the basis for Toni Morrison's Pulitzer Prize winning novel Beloved.

Thanks to Boston College historian Dan Farbman her story is being re-told.  Meanwhile rather than study history racists and fools around the country are spinning laws against "critical race theory". - GWC



Saturday, June 12, 2021

China vows to improve judicial protection of ecological environment //Supreme People's Court - Beijing

China vows to improve judicial protection of ecological environment

China's courts will join all participating parties to improve the judicial governance of the global ecological environment, promote harmonious co-existence of human beings and nature, and build a beautiful homeland for mankind.

Zhou Qiang, president and chief justice of the Supreme People's Court of China, made the remarks when he attended the World Judicial Conference on Environment in Kunming, capital city of Southwest China's Yunnan province on May 26.

Zhou said that Chinese courts are actively exploring China's own experience in judicial protection of ecological environment.

Who are the bishops pushing Communion-denial efforts? | National Catholic Reporter

Who are the bishops pushing Communion-denial efforts? | National Catholic Reporter
By Christopher White

When Archbishop Carlo Maria Viganò, the disgraced former papal nuncio to the United States, released an unprecedented and soon discredited letter in 2018 alleging Pope Francis' complicity in covering up for former Cardinal Theodore McCarrick's history of abuse, San Francisco's Archbishop Salvatore Cordileone came to Viganò's defense.

Despite Viganò's shocking call for Pope Francis' resignation, Cordileone was joined by a number of U.S. bishops who bolstered the testimony of the former nuncio. Among them, Denver Archbishop Samuel AquilaArchbishop Joseph Naumann of Kansas City, Kansas, Phoenix Bishop Thomas Olmsted and Bishop Thomas Paprocki of Springfield, Illinois, all of whom issued personal statements or gave interviews echoing Cordileone's praise of Viganò as a man of faith and integrity.

Today, those same bishops are also driving the controversial efforts aimed at pressing the U.S. bishops' conference to draft a document that will have far sweeping effects to deny Communion to Catholic politicians who support pro-choice legislation. When the U.S. bishops meet virtually June 16-18, they will vote on whether to proceed with drafting a document on the "meaning of the Eucharist in the life of the church," a proposal championed through a series of pastoral lettersmedia appearancespersonal articles and social media campaigns by the aforementioned bishops.

Yet the manner in which the debate among the U.S. prelates has played out — and the medium in which the body of bishops will hold this debate — has come under scrutiny in recent weeks, including by longtime former staffers at the U.S. bishops' conference and high-ranking Vatican officials who see the rushed debate as a stark departure from Pope Francis' call for dialogue.

KEEP READING

Thursday, June 10, 2021

Judge Robert A. Katzmann, 68, has died

Judge Katzmann speaking of immigrants at Fordham


Robert A. Katzmann was one of the great judges of our era. He was a scholar and law professor but most importantly a deeply empathic man.  The son of a Jewish man who fled Nazi Germany, he carried his concern for the immigrant and the refugee with him.  He sponsored the Varick Street Project through which law students volunteered to assist detained immigrants - an important service because federal law forbids the expenditure of any federal funds to represent persons facing deportation.

He was a good friend to Ruth Ginsburg and to District Judge Jed Rakoff.  Many Rakoff/Katzmann clerks went on to serve Ginsburg.  Judge Katzmann was a friend to Fordham and other law schools. - GWC

Judge Robert A. Katzmann, 68, has died

Robert A. Katzmann, former Chief Judge of the United States Court of Appeals for the Second Circuit, the founder of its acclaimed civics education program, and a highly esteemed member of the federal judiciary who, before joining the bench, had advised on judicial-legislative relations and served as special counsel on the confirmation of Justice Ruth Bader Ginsburg, a cherished friend, died today after a long illness. 
His death was announced by the current Chief Judge of the Court of Appeals, Debra A. Livingston, who succeeded him in September 2020. Judge Katzmann was 68 years old. Speaking on behalf of the Court, Chief Judge Livingston said, “Judge Katzmann led our Court through historic challenges, from budget sequester and governmental shutdowns, at the beginning of his tenure as Chief, to the pandemic which upended our Court’s operations only last spring. Throughout it all, Judge Katzmann provided sure and steady leadership. 
And more than this, Judge Katzmann, with his commitment to civic education, also had a vision for the Circuit – that the judiciary might lend a steadying hand to our democracy by helping to educate the citizenry about the rule of law and the role of judges. His quiet confidence, determination, exceptional leadership, and strong sense of justice inspired us all. We will miss him profoundly.” 

Katzmann was the Walsh Professor of Government, Professor of Law, and Professor of Public Policy at Georgetown University, and a fellow of the Governmental Studies Program at the Brookings Institution when he was nominated by President Bill Clinton to serve as a judge of the Court of Appeals. At the time of his nomination, Judge Katzmann, author of Courts and Congress, among other books, was one of the nation’s leading scholars on the subject of judicial-legislative relations. He had already worked collaboratively with Judge Frank M. Coffin, then chair of the United States Judicial Conference Committee on the Judicial Branch, who sought his assistance in examining interbranch relations. 
Katzmann had helped to found the Governance Institute to explore pragmatic issues arising from the separation of powers between the judiciary and Congress. 

Judge Katzmann was nominated on March 9, 1999 to serve on the Second Circuit. This Court hears appeals from the federal district courts of New York, Connecticut, and Vermont and is especially well-known for its significant criminal docket and for its important civil cases, which emanate from the Circuit’s corporate and financial centers. The Senate confirmed Katzmann by voice vote on July 14, 1999. When Judge Katzmann received his commission on July 16, only two days later, he became the first judge of the federal courts to take the bench with not only a law degree, but also a doctorate in government. 

Katzmann, whose twin brother, Judge Gary Katzmann, is a judge on the Court of International Trade, was born on April 22, 1953, in Manhattan, and grew up in Queens, a proud graduate of New York City’s public schools. He was the son of John Katzmann, a refugee from Nazi Germany and an engineer, and Sylvia Katzmann, a homemaker and the Brooklyn-born daughter of Russian immigrants. Katzmann received his A.B. degree summa cum laude from Columbia College before proceeding to Harvard University for his A.M. and Ph.D Degrees, where he studied with and worked for then-professor Daniel Patrick Moynihan, who became a mentor. Katzmann attended Yale Law School, where he served on the Yale Law Journal. After law school he clerked for Judge Hugh H. Bownes of the Court of Appeals for the First Circuit before joining Brookings.

Sunday, June 6, 2021

Cracks in the Israeli Consensus | by David Shulman | The New York Review of Books

Israeli border police and settlers outside a residence that was taken over from a Palestinian family in the Sheikh Jarrah neighborhood of East Jerusalem, May 7, 2021


Cracks in the Israeli Consensus | by David Shulman | The New York Review of Books
David Shulman is the author of Freedom and Despair: Notes from the South Hebron Hills, among other books. He is a Professor Emeritus at the Hebrew University of Jerusalem and was awarded the Israel Prize for Religious Studies in 2016. (July 2021)

Looking back on the latest round of fighting in Gaza, one can’t escape the grim sense of déjà vuHow many such rounds have there been? I can’t remember. Worse, eerie and compulsive repetition suits the way many, perhaps most, Israelis—including, it seems, the higher echelons of the army and intelligence services—tend to think about Gaza and Hamas. On the surface, the primitive logic goes like this: Hamas is a murderous, barbaric organization that wants only to kill as many Israelis as possible and is continuously building up its military capabilities to that end. In practice, the only useful way of dealing with Hamas is therefore to pound it to pieces once every few years (or months), thus reestablishing what the Israeli army and government fondly call “deterrence” (it’s their favorite word).

The trouble with this approach is that it never works. To revert to the army lingo, which Israelis hear every night on TV during episodes of fighting: deterrence is inherently entropic; the passage of time inevitably erodes it. Hence the need for that periodic pounding. Moreover, the time lag can be remarkably short. The army is already saying that another round of warfare in Gaza could break out soon.

If we go a little deeper, a more deadly vision emerges. As several astute commentators have suggested in the last weeks, Benjamin Netanyahu’s grand strategic plan, shared, implicitly, with sections of the Israeli right, was to keep Hamas alive as a constant threat to Israel.

 Ensuring that the Palestinians remain divided between the ineffectual remnants of the Palestinian Authority in Ramallah and the extreme Islamicists of Gaza is one way, possibly the only way, to allow the Israeli program of annexation, domination, and expulsion on the West Bank to go forward.

This policy has worked, to a point, as anyone who drives through the West Bank today can see. Roughly half of the available land reserves in Area C (over 60 percent of the West Bank, where all the settlements are located) have by now been allocated to Israeli colonies and their continuous, violent expansion. I experience the ever more intrusive tentacles of the occupation, in the form of vicious settlers and mostly hostile soldiers and police, nearly every week when my fellow activists and I are in the Palestinian territories to protect, as best we can, Bedouin shepherds and the small-scale farmers and herders of the South Hebron hills. Levels of settler violence against Palestinians and human rights activists have increased exponentially over the last several months.

 In the occupation system, settlers are above the law.