Sunday, October 31, 2021

NPCOBSERVER: Personal Information Protection Law

Personal Information Protection Law

Personal Information Protection Law of the People’s Republic of China
中华人民共和国个人信息保护法

[Current Text: Chinese | English (Stanford DigiChina; $ China Law Translate)]

(adopted Aug. 20, 2021, effective Nov. 1, 2021)

Status: Passed
Legislative Body (Vote): NPCSC (N/A)
Drafters: NPCSC Legislative Affairs Commission & Cyberspace Administration of China; Submitter: Council of Chairpersons
Legislative Plans
- Five-year: 11th NPCSC Category II; 13th NPCSC Category I
- Annual: 2020, 2021
Legislative History & Texts
- NPCSC deliberation – 3rd (final) round: August 2021 (Chinese | English: Stanford DigiChina; $ China Law Translate)
- NPCSC deliberation – 2nd round: April 2021 (Chinese | English: Stanford DigiChina; $ China Law Translate)
- NPCSC deliberation – 1st round: October 2020 (Chinese | English: Stanford DigiChina; $ China Law Translate)
Legislative Records
- Explanation (Oct. 13, 2020)
- Report on Status of Revision (Apr. 26, 2021)
- Report on Results of Deliberation (Aug. 17, 2021)
- Report on Suggestions for Revision (Aug. 19, 2021)
- Presidential Order (Aug. 20, 2021)
Press Conference: N/A

NPC Observer Coverage

Saturday, October 30, 2021

Mortenson as amicus rebuts attack on EPA power in West Virginia v. EPA

UPDATE

West Virginia, et al v. EPA

QUESTIONS PRESENTED 1. Whether the Clean Air Act, 42 U.S.C. 7401 et seq., unambiguously excludes generation shifting from the measures that the Environmental Protection Agency (EPA) may consider in determining the “best system of emission reduction,” 42 U.S.C. 7411(a)(1), for purposes of regulating carbon dioxide (CO2) emissions from existing power plants. 2. Whether EPA’s regulation of hazardous air pollutants from coal-fired power plants under 42 U.S.C. 7412 bars regulation of CO2 from those same sources under 42 U.S.C. 7411(d).

Asked by twenty seven states and a raft of public interest organizations the United States Supreme Court agreed to hear and on February 28 will explore the ability of the Environmental Protection Agency to implement its Affordable Clean Energy Rule which is intended to compel power plants to move away from coal. The case has attracted as litigants states and industry organizations. All such cases today raise the question How will the Court's conservative majority seek to diminish the power of a regulatory agency that is the long-time target of anti-regulatory sentiment?

One of the attackers tools is the so-called non-delegation doctrine. They have positioned themselves via this theory to strike down regulatory methods unless there has been explicit Congressional authorization. This non-delegation doctrine is embraced by those who call themselves originalist.

But University of Michigan law professors Julian Mortenson and Nicholas Bagley have long argued that non-delegation is a fable that conservatives love to tell because it suits their ideological hostility to modern government. They have in Delegation at the Founding, a recent Columbia Law Review article, demonstrated beyond reasonable argument that this idea was not operative at the founding. Now Mortenson has filed a friend of the court brief in West Virginia v. EPA. 20-1530. He shows that Congress delegated key functions like where to place the offices, and how to determine the routes and locations of the newly established post offices, one of the most important early undertakings of the newly constituted government.

Other functions such as patent rights and how to absorb the states debts from the war of independence were also the subject of Congressional delegation placing substantial discretion in the hands of others with little explicit guidance but broad statement of purpose.

The Supreme Court has agreed to review cases challenging the Environmental Protection Agency's right to regulate power plants. The cases could be a step to a nightmare of administrative law as the conservative supermajority takes the opportunity to throw a wrench in the spokes of the wheels of the administrative state which they detest and deplore as a tyrannical force. Ian Millhiser laid out the threat HERE a few months ago. - GWC 1/26/2022

Justices agree to review EPA’s authority to regulate greenhouse gases - SCOTUSblog

by Amy Howe

In a term already defined by abortion and guns, the justices on Friday agreed to hear two more politically divisive disputes, involving the Environmental Protection Agency’s authority to regulate greenhouse gases and the ability of states to defend a Trump-era immigration rule that the Biden administration has declined to defend.

Climate change regulation

The litigation over the EPA’s authority comes to the court in a quartet of environmental cases on appeal from the U.S. Court of Appeals for the District of Columbia Circuit. The D.C. Circuit vacated both the Trump administration’s decision to repeal the 2015 Clean Power Plan, which established guidelines for states to limit carbon dioxide emissions from power plants, and the Affordable Clean Energy Rule that the Trump administration issued in its place.

Urging the justices to hear the case, one of the challengers, the North American Coal Corporation, acknowledged that the issue of climate change and how to address it has “enormous importance,” but the company stressed that “[t]hose debates will not be resolved anytime soon.” What the court should resolve, it continued, “as soon as possible is who has the authority to decide those issues on an industry-wide scale — Congress or the EPA.” Unless the justices weigh in, the company warned, “these crucial decisions will be made by unelected agency officials without statutory authority, as opposed to our elected legislators.”

The Biden administration told the justices that there was no need for them to step in now, because the Clean Power Plan “is no longer in effect and EPA does not intend to resurrect it.” Instead, the government explained, it intends to issue a new rule that takes recent changes in the electricity sector into account. “Any further judicial clarification of the scope of EPA’s authority,” the government suggested, “would more appropriately occur” after the agency has actually issued the new rule.

After considering the cases at four consecutive conferences, the justices granted review and ordered the cases to be argued together. The justices’ decision in the case, which is expected by summer 2022, could have an impact well beyond environmental law because it could impose new limits on Congress’ ability to delegate authority to all regulatory agencies.

The lead case is West Virginia v. EPA. It is consolidated with North American Coal Corp. v. EPA, Westmoreland Mining Holdings v. EPA, and North Dakota v. EPA.

- GWC

SG Prelogar: The U.S. has the authority in equity to block Texas SB 8

From the Solicitor General's final brief in U.S.A. v. Texas

I. The United States has authority to bring this suit in equity ............................................................................

2 A. The United States may sue in equity to prevent Texas from nullifying this Court’s precedents by thwarting judicial review ................

2 1. Texas designed S.B. 8 to nullify this Court’s precedents by thwarting judicial review...................................................................

3 2. The United States may sue in equity to vindicate its sovereign interest in preventing Texas from nullifying this Court’s precedents by thwarting judicial review...................................................................

6 3. Texas’s remaining objections lack merit........ 10

The ODNI Releases Declassified Assessment On the Origins of the Coronavirus - Lawfare

The ODNI Releases Declassified Assessment On the Origins of the Coronavirus - Lawfare

By Emily Dai

Friday, October 29, 2021, 4:08 PM

On Oct. 29, the Office of the Director of National Intelligence released a report updating the Intelligence Community’s previous judgments on the origins of the coronavirus. The Intelligence Community determines in the report that SARS-CoV-2, the virus that causes coronavirus, likely emerged through a “small-scale exposure” arising in Wuhan, China no later than November 2019. While the Intelligence Community remains divided on the exact origins of the coronavirus, they judge that the coronavirus was not developed as a biological weapon and that officials in China did not have foreknowledge of the coronavirus before the initial outbreak. All intelligence agencies believe two hypotheses are possible: “[n]atural exposure to an infected animal” or “[a] laboratory-associated incident.” The agencies say they need more information to develop a more definitive explanation for the origins of the coronavirus.

You can read the reports here

Fogbound - Georgian Bay - Ontario -Small Boats Magazine

The Georgian Bay archipelago - Lake Huron is one of those magic spots (like the Boundary Waters) that I expect never to see. Of course I'm stuck with the Penobscot and Muscongus Bays in Maine. But there's a lot of fun to be had in surfing the web.

Fogbound - Small Boats Magazine

Fogbound

The Bustard Islands of Georgian Bay

Written by TOM PAMPERIN

From Issue SEPTEMBER 2018

The east side of the Bustard Islands was all shoals and breakers, with a broad band of granite shelves and outcroppings stretching half a mile or more offshore. Typical for Georgian Bay, I knew, where the safest routes run well outside to avoid the rocks, or follow the well-buoyed passages of the charted small-craft route that traverses Georgian Bay’s eastern shoreline.

Here in the Thirty Thousand Islands region, only kayaks and canoes—or a sail-and-oar cruiser with her board and rudder up—can manage to sneak through to the shore in most places. And even boats like my as-yet-unnamed Don Kurylko–designed Alaska beach cruiser have to pick their way carefully. Passing through the northern end of the Bustard Islands on my approach from the west, I had seen a few cottages and sailed past half a dozen larger boats in the main anchorage between Tie Island and Strawberry Island. Out here on the east side of the Bustards I was completely on my own.

Friday, October 29, 2021

Justice Barrett's dilemma: As abortion cases loom Supreme Court, 6-3, lets Maine healthcare workers Vax order stand

In John Does v. Janet Mills, Governor of Maine a 6-3 majority of the Supreme Court declined to block the Maine Governor's regulation that certain health workers get vaccinated against Covid - or lose their jobs. Because Maine provided for medical exemptions but not religious ones Neil Gorsuch joined by Samuel Alito and Clarence Thomas vehemently dissented.

Lauding the anti-vax objectors as "front line" workers of "bravery and and grace" the dissenting Associate Justices insisted that once it granted any exemption Maine must protect "the exercise of sincerely held religious beliefs",as the Court did in Masterpiece Cakeshop, favoring a baker who refused to make a cake for a gay wedding. So far par for the course.

The only notable wrinkle is that Amy Coney Barrett, joined by Brett Kavanaugh, opted for a go slow approach, declining to use the "emergency docket". That is a descriptive name for what William Baude (U Chicago law prof and former clerk to John Roberts) labeled the "shadow docket". His point is that the Court's increased resort to the emergency docket has meant that important precedents are being set or undercut on thin records with less than full consideration. The spate of orders blocking pandemic-related restrictions on congregant worship is the prime example - chipping away with minimal explanation at long established principles such as Employment Division v. Smith. In that 1990 decision Barrett's mentor and model Antonin Scalia endorsed a bar on use of mescaline in Native American ritual because the drug law was one of general application.

The Maine mandatory vaccination regulation is such a facially neutral measure that Smith holds courts should allow to stand. But Justice Gorsuch and his allies urged that since there is a medical exception (e.g. allergy) the state must also accommodate "sincere" religious objections. Some objectors find objectionable a remote connection to use of fetal tissue at some point in the development phase of the vaccines. That Pope Francis and Catholic theologians find no obstacle to vaccination and urge that people receive it as a protection of the public health is of no moment to Gorsuch, et alii. So long as the individual belief is "sincere" no doctrinal orthodoxy is required.

Granting an emergency order in such a case was seen by Barrett as using "the emergency docket to force the Court to give a merits preview in cases that it would be unlikely to take—and to do so on a short fuse without benefit of full briefing and oral argument." The two newest justices thus find themselves in an alliance, perhaps momentary, with the Chief Justice. John Roberts has on occasion been more respectful of precedent and past practice than the ideologically sharper-edged Justices Gorsuch, Alito, and Thomas.

Barrett did not show such reticence in Whole Women's Health or U.S. v. Texas which challenge the Texas `heart beat' law SB 8. It mandates a bounty of at least $10,000 plus counsel fees to anyone who identifies an abortion performed beyond six weeks or so post-conception. The Court allowed that to stand but then granted "pre-judgment certiorari" and scheduled early argument in the two challenges for Monday November 1. That will soon be followed by oral argument on December 1 in Dobbs v. Jackson Women's Health - the Mississippi law barring abortions after fifteen weeks.

Barrett's reticence yesterday suggests that she is trying to find a way to jettison Roe v. Wade which has been in place her entire life. The dilemma she faces - as the undoubted deeply committed opponent of legal abortion -is to do so in a way that will have a maximum degree of public acceptance and which coheres with the conservative principles she has long and publicly embraced such as respect for precedent and the need to avoid highly disruptive judicial decisions.

In 2013 then Professor Barrett embraced the idea that some decisions are super precedents - effectively beyond judicial reach. In a 2016 article with her late Notre Dame colleague John Nagle she wrote "the force of these super precedents derives not from the Court’s decision to afford them precedential strength but from the People’s choice to accept them. Once a precedent is deeply rooted, challenges die out and the Court is no longer required to deal with the question of the precedent’s correctness." Thus even though conservatives like her may doubt the constitutionality of the Social Security Act, or Mapp v. Ohio (search and seizure) the decisions have become bedrock.

But Barrett - like Roberts - will be hard-pressed to find a non-disruptive way to reverse fifty years of constitutional law which has withstood relentless legal attack on the right to elect abortion, and retains the support of a majority according to public opinion polls. This is likely to be especially troublesome for Coney- Barrett who is a member of a conservative evangelical Catholic movement People of Praise. She is also challenged by the prestigious Notre Dame philosopher and natural law advocate John Finnis. With Princeton's Robert George - another leading conservative Catholic intellectual - Finnis has urged the Supreme Court in an amicus brief to declare that from the moment of conception "unborn children are constitutional persons entitled to equal protection of the laws". If there is ever to be a decision that will disrupt the fabric of the law Finnis and George have provided the opportunity.

If Barrett wants to stop short of such a decision she will find the going rough. She will have to confront her benchmate Neil Gorsuch whose doctoral dissertation at Oxford was supervised by Finnis. His and George's view are doubtless shared by others at Notre Dame and by the U.S. Catholic Bishops who are likely to soon vote to ex-communicate Joe Biden, Nancy Pelosi and other "pro-abortion" Democrats. That as Catholics Biden (father of three) and Pelosi (mother of six) personally oppose abortion makes their advocacy of freedom of choice more scandalous in the conservative view.

It is going to be very difficult for Barrett to walk down the aisle on Sundays to receive communion if she does not herself embrace the anti-abortion view which U.S. bishops have declared to be the pre-eminent moral issue of our time. She said at confirmation that she will not allow her religious beliefs to interfere with her adherence to the law itself. Although the court has been friendly to anti-abortion protesters and the conservative Catholic justices personal orthodoxy is beyond doubt Roe v Wade has withstood assaults for forty eight years.

`Compromises' such as letting stand the Texas six week rule, or the Mississippi fifteen week rule, or simply throwing up their hands and leaving it with the states are unlikely to satisfy the peer groups that matter most to Barrett: the People of Praise (to whom she is a "handmaid"), her Notre Dame colleagues, the Bishops who will meet in mid-November, and perhaps her own parishioners and family.

- GWC

Chemerinsky: SCOTUS holds the line on qualified immunity, shielding police- ABA Journal

UC Berkeley Dean Erwin Chemerinsky

The south lost the civil war and won the battle to defeat Reconstruction - vitiating the right to vote and basic rights for 100 years. Since the Second Reconstruction of the 1960's the Supreme Court has mostly been a foot dragging if not actively obstructive force in overcoming our racists heritage. Erwin Chemerinsky has long identified this problem. Now he is speaking out about the fact tha the United States Supreme Court is the champion of a doctrine known as "qualified immunity" that protects bullying and brutal police officers from accountability. - GWC

Chemerinsky: SCOTUS continues to hold the line on qualified immunity ABA Journal

Two unanimous U.S. Supreme Court decisions on Oct. 18 show the justices are continuing to broadly interpret qualified immunity to limit suits against government officials, especially police officers. Perhaps this will help fuel pressure on Congress to enact a law to revise qualified immunity, but so far such efforts have passed the House of Representatives and stalled in the Senate.

Some background

All government officers who are sued for money damages can raise an immunity defense. Although 42 U.S.C. § 1983 is written in the language of strict liability, authorizing recovery against any person acting under color of law who violates the Constitution or federal laws, the Supreme Court created immunity as a defense. Some government officials—such as judges for their judicial acts, prosecutors for their prosecutorial acts, and legislators for their legislative acts—have absolute immunity to suits for money damages. All government officials who do not have absolute immunity have qualified immunity.

The Supreme Court has said that an officer performing discretionary functions is protected by qualified immunity unless he or she violates clearly established law that every reasonable officer should know. In District of Columbia v. Wesby in 2018, the court explained: “In other words, existing law must have placed the constitutionality of the officer’s conduct ‘beyond debate.’ This demanding standard protects ‘all but the plainly incompetent or those who knowingly violate the law.’”

The court stressed that the law has to be clear that the specific conduct of the officer is unlawful: “The ‘clearly established’ standard also requires that the legal principle clearly prohibit the officer’s conduct in the particular circumstances before him. The rule’s contours must be so well defined that it is ‘clear to a reasonable officer that his conduct was unlawful in the situation he confronted.’”

Many on both the right and the left of the political spectrum have sharply criticized the Supreme Court’s qualified immunity jurisprudence as making it enormously difficult for victims of constitutional violations to recover for their injuries. Donald Trump appointee Judge Don Willett of the New Orleans-based 5th U.S. Circuit Court of appeals wrote of his “disquiet over the kudzu-like creep of the modern immunity regime.”

He wrote: “Section 1983 meets Catch-22. Plaintiffs must produce precedent even as fewer courts are producing precedent. Important constitutional questions go unanswered precisely because those questions are yet unanswered. Courts then rely on that judicial silence to conclude there’s no equivalent case on the books. No precedent = no clearly established law = no liability. An Escherian Stairwell. Heads defendants win, tails plaintiffs lose.”

In November 2020, in Taylor v. Riojas, the Supreme Court rejected qualified immunity, and this led to speculation that the court was responding to its critics by lessening the bar to recovery by plaintiffs. That case involved a prisoner who had been placed in horrific conditions, but the lower courts found that the prison officials were protected by qualified immunity because of the absence of a case on point with virtually identical facts. The court, in a 7-1 decision, reversed and stressed that there does not need to be a case on point and that officers can be held liable so long as they have “fair warning” that their conduct is unconstitutional.

The decisions of Oct. 18

The two recent decisions indicate that the speculation about an overall shift in approach to qualified immunity by the court was unfounded. Both cases involved claims against police officers for excessive force. In each, the court reversed a federal court of appeals and found qualified immunity, stressing the absence of a case with sufficiently similar facts.

In Rivas-Villegas v. Cortesluna, police in Union City, California, responded to a domestic violence call. Ramon Cortesluna, the suspect, came out of the house and was shot twice with beanbag rounds by the police when he put his hands down after being told not to do so. An officer had seen a knife in Cortesluna’s pocket. Officer Daniel Rivas-Villegas then pushed Cortesluna to the ground and pressed his knee against his back so a colleague could handcuff him.

Cortesluna sued the officers for excessive force. The federal district court concluded the force used by both officers was reasonable and that the officers were entitled to qualified immunity. The San Francisco-based 9th U.S. Circuit Court of Appeals found that the firing of the shots was protected by qualified immunity, but that it was excessive force for a police officer to press his knee into the back of a suspect lying face down on the ground, hard enough to cause an injury.

The Supreme Court unanimously reversed in a per curiam opinion and concluded the officer was protected from liability by qualified immunity. The court stressed the absence of a case with sufficiently similar facts.

The court declared: “Even assuming that controlling circuit precedent clearly establishes law for purposes of Section 1983, [prior precedent] did not give fair notice to Rivas-Villegas. He is thus entitled to qualified immunity.” The court said, “although ‘this court’s caselaw does not require a case directly on point for a right to be clearly established, existing precedent must have placed the statutory or constitutional question beyond debate.’”

It is notable that the justices once more noted that they had not yet decided whether anything other than a Supreme Court decision can create clearly established law. Also, the court says that there does not need to be a case “directly on point,” but then finds qualified immunity because no prior decision had sufficiently similar facts.

The other decision on Oct. 18, City of Tahlequah v. Bond, also arose in a domestic violence situation. Police in Tahlequah, Oklahoma, were called by a woman to remove her ex-husband, Dominic Rollice, from her home. The police confronted Rollice in a garage. While talking to the police, Rollice picked up a hammer. When Rollice disobeyed the police order to drop the hammer, police shot and killed him.

Rollice’s estate sued the police for excessive force. The federal district court ruled in favor of the officers, but Denver-based 10th U.S. Circuit Court of Appeals reversed. The 10th Circuit found both that the police used excessive force and that they were not protected by qualified immunity.

The Supreme Court again reversed in a per curiam opinion.

Once more, the court stressed the absence of a case with sufficiently similar facts. It stated: “Not one of the decisions relied upon by the court of appeals … comes close to establishing that the officers’ conduct was unlawful.” The court concluded its decision by declaring: “Neither the panel majority nor the respondent have identified a single precedent finding a Fourth Amendment violation under similar circumstances. The officers were thus entitled to qualified immunity.”

The implications

It is notable that both of these decisions were unanimous and that the justices saw them as sufficiently clear as to not even need briefing and oral argument. At the very least, they show that in police excessive force cases, the court insists that there be a case with very similar facts or the officers must be deemed to be protected by qualified immunity. There is a high hurdle for plaintiffs seeking to recovery for claims of excessive use of force by the police.

This surely disappoints those who thought that the court might be shifting its approach to qualified immunity after the protests against police violence following the death of George Floyd and in the face of significant criticism of its jurisprudence in this area. Because qualified immunity is based on the court’s interpretation of a statute, Section 1983, Congress could change this. The House of Representatives, in both 2020 and 2021, has passed the George Floyd Justice in Policing Act that, among other things, would change the standard for qualified immunity. So far, though, it has been blocked in the Senate, and passage seems unlikely in the foreseeable future.

Is the US Supreme Court too hardline for America?

Is the US Supreme Court too hardline for America?

by Hussein Ibish

Religion is one of the most polarising factors dividing US society today. During the presidency of Donald Trump, the evangelical Christian right gained unprecedented power in the Republican Party and finally acquired significant influence over US foreign policy.

A new five-vote, hardline conservative majority on the Supreme Court bench also reflects a religious conservatism that is historically remarkable and profoundly out of sync with the views of most Americans on social issues. The Supreme Court's new term began this month, and it may reveal a huge divergence of values between the public and the highest court in the land.

***

Several justices have recently insisted that they do not take ideology or party affiliation into consideration. Yet, most Americans know they typically do. Worse, it's no longer just about party or ideology, but essentially about religious zealotry.

No one sensible is going to be persuaded that these judges' "judicial philosophy" just so happens to produce results that conveniently coincide with deep-seated religious beliefs and that delight their political patrons. What's the difference, anyway?

If these justices don't exercise considerable, and improbable, restraint, eventually the American majority may decide to use their constitutional prerogatives to restructure or otherwise constrain the court.

Mr Roberts may advocate restraint. But, thus far, it doesn't seem the other five Republican appointees have much regard for what their supporters appear to view as his insufficiently pious outlook.

Thursday, October 28, 2021

Big law, big bucks

Tuesday, October 26, 2021

22 seconds: dissent from a qualified immunity grant for a police officer - 10th Circuit

Estate of Taylor v. Salt Lake City

LUCERO, Senior Circuit Judge, dissenting: 22 seconds. That is precisely the time elapsed—22 seconds—from the moment Officer Bron Cruz stopped his police cruiser in a Salt Lake City 7-Eleven parking lot to the point at which he fatally shot twenty-year-old-innocent-unarmed Dillon Taylor. Dillon’s crimes? Walking away from an unconstitutional police stop and pulling up his pants. The majority concludes, as a matter of law, that it was objectively reasonable, based on qualified immunity, to free Officer Cruz from any liability without a trial. This cannot be right. It is not the place of this court to resolve factual disputes as to the reasonability of Officer Cruz’s actions. I am concerned about the extension of the judicially created doctrine of qualified immunity to shield officers even when there is a substantial and material dispute in the evidence as I explain below. I most respectfully dissent. 010110595657.pdf

The Verdict - Frank's Closing Argument - Paul Newman

David Blight - How the aftermath of the civil war can help understand Trumpism

David Blight, the Pulitzer Prize winning biographer of Frederick Douglass - Prophet of Freedom, discusses the failed aftermath of the successful war against slavery and its lessons for the triumph of Trumpism.

Monday, October 25, 2021

Legal Occupations : Occupational Outlook Handbook: : U.S. Bureau of Labor Statistics

Legal Occupations : Occupational Outlook Handbook: : U.S. Bureau of Labor Statistics

Legal Occupations

Employment in legal occupations is projected to grow 9 percent from 2020 to 2030, about as fast as the average for all occupations, and will result in about 116,600 new jobs. As law firms try to increase the efficiency of legal services and reduce their costs, there is expected to be strong demand to hire more paralegals and legal assistants. Additionally, the demand for lawyers is expected to continue as individuals, businesses, and governments require legal services in many areas.

The median annual wage for legal occupations was $84,910 in May 2020, which was higher than the median annual wage for all occupations of $41,950.

BLS provides summary data, including employment projections, for legal occupations not shown in the table on this page. That information is available on the Data for Occupations Not Covered in Detail page.

Annual earnings

Judges median: $124,200

Lawyers median: $126,930

Friday, October 22, 2021

U.S. v. Texas - Sotomayor dissenting

United States v. Texas - order granting cert before judgment, reserving judgment on application to vacate stay of preliminary injunction.

21a85-21-588.pdf

Sonia Sotomayor, dissenting:

Recognizing that Texas’ scheme raises concerns of imperative public importance, the Court properly grants certiorari before judgment. See this Court’s Rule 11. However, the Court’s failure to issue an administrative stay of the Fifth Circuit’s order pending its decision on this application will have profound and immediate consequences.

By delaying any remedy, the Court enables continued and irreparable harm to women seeking abortion care and providers of such care in Texas—exactly as S. B. 8’s architects intended, see infra, at 6–7. Whatever equities favor caution in staying a state law under normal circumstances cannot outweigh the total and intentional denial of a constitutional right to women while this Court considers the serious questions presented.

The District Court concluded that S. B. 8 “‘has had an immediate and devastating effect on abortion care in Texas.’” 2021 WL 4593319, *36. That is because the Act’s chilling effects “operate . . . as an effective deterrent to provision of pre-viability abortion services in Texas, precluding the vast majority of individuals from accessing this constitutional right” and causing a “dismantling of the provider network” across the State. Id., at *38. Before the District Court, Texas identified only one abortion that had occurred in the State beyond S. B. 8’s unlawful 6-week restriction

US Challenge to Texas SB 8 will be heard Nov. 1 - law still in effect - Sotomayor dissents

https://s3.documentcloud.org/documents/21090475/21a85-21-588.pdf

Is it time to reconsider where lawyers can practice? - Law 360

By Ryan Boysen

Law360 (October 20, 2021, 4:41 PM EDT) -- Have bar association rules that limit in which states lawyers can practice outlived their usefulness? Yes, to an extent. But getting rid of them altogether could also open a massive can of worms. Three experts came to that conclusion while discussing the issue on a panel Wednesday.

Wednesday's three panelists discuss UPL rules.

The event, sponsored by the American Bar Association, Legal Hackers and the Institute for the Advancement of the American Legal System at the University of Denver, titled "Redesigning Legal: Lawyer UPL — Has It Jumped the Shark?" focused on the so-called unauthorized practice of law, or UPL.

Specifically, the panel's three speakers discussed state bar association rules that define UPL in purely geographic terms. Those rules largely require attorneys to practice law only in states where they're formally licensed to do so.

While those rules are rooted in the commonsense notion that lawyers admitted to practice in a given state know that state's laws better than lawyers who aren't, Wednesday's panel pointed out that in practice, UPL rules can lead to nonsensical or counterproductive results.

Through examining a series of hypotheticals, the panel recommended that state bar associations loosen UPL rules to an extent, but also cautioned against abandoning them wholesale, despite some forceful arguments from viewers in favor of that outcome.

"The regulators' concern, in my opinion, should be harm to the public … if there's no harm, no confusion to potential clients, then I think it's a huge stretch to say it's UPL," said panelist Wendy Muchman, a professor at Northwestern University School of Law who focuses on legal ethics.

Muchman was responding to a hypothetical posed by moderator Lynda Shely, an Arizona attorney who specializes in legal ethics. She often defends lawyers before state bar prosecutors and currently chairs the American Bar Association's Standing Committee on Ethics and Professional Responsibility.

In the hypothetical, Shely asked if two lawyers who are married and admitted to practice in California and Massachusetts, respectively, should be allowed to continue practicing even if they're living at their winter home in Arizona for several months.

Mike Kennedy, a former president of and longtime prosecutor for the Vermont Bar Association, said it would be absurd for UPL rules to stand in the way of two lawyers doing what Shely was describing.

"Of course they can do this," he said.

Muchman agreed, but even so, the pair noted that some states have still not updated their local bar association rules to formally allow this type of remote lawyering.

That's despite the fact that the ABA issued Formal Opinion 495 in December 2020 announcing that remote lawyering shouldn't be considered UPL, seeing as how thousands upon thousands of attorneys were doing some version of this during the COVID-19 pandemic.

Shely then moved on to a scenario in which a lawyer is admitted in California and represents a California-headquartered company, but travels to other states to work on aspects of a merger with another company.

Muchman and Kennedy again agreed that such conduct should clearly be allowed, but noted that because the local rules have not been updated in Hawaii and Texas, doing so could get the hypothetical lawyer written up.

Then Shely lobbed a thornier situation: a lawyer who's admitted in one state, but regularly practices in a neighboring state where she's not.

Kennedy said he had to draw the line at that behavior, as it blatantly violates existing UPL rules.

"Even if you think the rules should eventually be all about, 'Is the lawyer competent or not?' until we get there you need to comply with the rules," Kennedy said.

"People like Natalia" — the hypothetical lawyer — "who openly flout the rules do a disservice to those of us trying to change these rules," he added.

That scenario raised an interesting question for the panelists and those watching the discussion on Zoom, however: Should lawyers be limited by strictly geographic UPL rules at all?

One viewer argued repeatedly in the chat that the UPL rules serve no purpose whatsoever and that they don't prevent lawyers from revealing themselves to be incompetent or fraudsters.

"So what is the point of licensing if it does not prevent bad lawyers from practicing?" that viewer wrote in the chat.

While not responding directly to that comment, Kennedy acknowledged that a myopic focus on UPL rules can sometimes result in missing the forest for the trees.

"I don't understand why we're so quick to assume that people from other jurisdictions are incompetent, when we really don't worry about it all that much in our own jurisdictions," he said.

Muchman agreed, but said abolishing UPL rules altogether would create the massive problem of figuring out how to pay for any type of lawyer regulation. As it stands, attorneys pay annual dues to state bar associations where they're admitted because they must do so in order to practice.

"It's a legit concern," she said. "States have to have the resources to enforce the rules of professional conduct."

Kennedy agreed, saying that if UPL rules were abolished it would likely be smaller states like Vermont that would see an influx of out-of-state lawyers that practice but don't pay state bar dues.

But they also said that in some situations, it would likely be a net positive for lawyers to practice across state lines with no strings attached.

Shely presented a hypothetical where tenant clients in Idaho are repeatedly seeking out a well-regarded housing rights attorney in neighboring Washington because the few firms available in their home state are often unable to represent them due to conflicts of interest. Does it really make sense that current UPL rules would prevent that attorney from assisting those needy clients?

"You're rarely better off with no representation at all," Muchman said. "A good lawyer at least knows how to spot what the concerns are in a given case."

Kennedy agreed, saying it's a question that the ABA and local state bar associations are likely to continue debating in the near future.

"What we're talking about here are people who are better off with somebody that at least knows something than they are on their own," he said. "We've got to figure out a way to make it so that those people in those situations get the help they need."

--Editing by Alanna Weissman.

Update: This article has been updated with additional information on the sponsors of Wednesday's panel.

SB 8: Texas to Supreme Court: "the federal government cannot get an abortion"

Texas has filed its reply brief opposing the United States motion asking the Supreme Court to reinstate District Judge Robert Pitman's preliminary injunction against its notorious SB 8 law. The Texas measure promises a bounty of at least $10,000 anyone who reports anyone conducting or aiding an abortion after six weeks of gestation.

Texas proposes to enforce the ban by deputizing private litigants, whose awards would ultimately be entered by Texas judges and executed by constables. Texas claims that it is immune because it has outsourced enforcement - though its courts will eventually enter judgments for the bounty hunters.

The arrogance of the Texas lawyers is stunning. The "putative constitutional right" is one recognized by the Supreme Court in Roe v. Wade (1972) and has repeatedly withstood attack, as it did in 1992 in Planned Parenthood v. Casey. Those cases should be overturned Texas asserts. The paragraph below is particularly noteworthy:

Under binding case law, the federal government is not adverse to Texas merely because it thinks a Texas law is unconstitutional. And it lacks standing because it has not been injured by SB 8. The federal government cannot get an abortion, and the Constitution does not assign it any special role to protect any putative right to abortion. Thus, the theory of standing found in In re Debs, 158 U.S. 564 (1895), is inapplicable. And its speculation that SB 8 may adversely affect various federal programs is just that—speculation unsupported by the government’s own witnesses. The government does not even try to defend the trial court’s discussion of parens patriae standing.

OTHERWISE

Sunday, October 31, 2021

NPCOBSERVER: Personal Information Protection Law

Personal Information Protection Law