The Indictment

 In the days, weeks, and months ahead -

FOCUS ON THE FACTS.

A healthy skepticism for the MQD as a linguistic canon - Adminwannabe Com

Lord Acton too famously said that power corrupts and absolute power corrupts absolutely.  So it is with the United States Supreme Court, a monarchical crew that gains its authority from life tenure and the long tolerance of its claim to have the last word on interpretation of a famously malleable, almost unamendable written constitution.

Today's most dramatic overreach is its absolutist preemption of state legislatures, and of any courts but itself (NY State Rifle Ass'n v. Bruen), and the development of the demand that the Executive can adopt regulations and policies of "major" impact only if Congress spoke clearly - no matter how novel the circumstances.  A conservative law professor Ilan Wurman seeks to rescue this judicial imperialism.  Beau Baumann rebuts.  - GWC 3/30/23

A healthy skepticism for the MQD as a linguistic canon - Adminwannabe Com

By Beau Baumann

Recently, we’ve had a new justification for the major questions doctrine (“MQD”) in the form of Ilan Wurman’s Importance and Interpretive Questions, which aims to recast the doctrine as a linguistic canon. Wurman’s project ask whether the MQD can find a defensible justification as an insight into either (1) how Congress drafts statutes or (2) how ordinary language is used when people in conversation delegate authority. You get the sense from the paper that this project was born of Ilan’s pessimism on the MQD’s pedigree as a substantive/constitutional canon. He says that several version of the MQD are just not defensible or are only defensible if the doctrine doesn’t—as most scholars think it does—require clarity over and above plain meaning. What follows is an eclectic collection of evidence that gives Wurman’s piece a kitchen-sink feeling. I don’t mean that as a criticism; Wurman collects evidence from many sources to try to see if anything sticks. I think it’s a creative work that will give everyone a lot to deal with in the literature. But at the same time, it can be dizzying how Wurman toggles back and forth between different sorts of evidence; from (what I think of as) intentionalist evidence about congressional staffers’ views on drafting, to a theoretical work on language. So you’ve got to come into this one with some flexibility.

The evidence includes the following:

1. Evidence of drafting practices—Wurman relies on the results from a question in Bressman and Gluck’s survey (“B-G Survey”) of congressional drafters from a decade ago.
2. Theoretical work on ordinary language—Wurman relies on the work of Ryan Doerfler, whose paper, High-Stakes Interpretation, discussed the role that importance can play in ordinary conversation.
3. The mischief rule—in a move that should be familiar to readers of the blog, Wurman argues that the MQD might serve a similar function to the mischief rule.
4. Historical evidence—Wurman points to the Necessary and Proper Clause, agency law, contract law, and the historical work of Louis Capozzi.

Personally, most of this evidence is not for me because of various methodological commitments and my own assessment of the evidence.

Dean Jiang Huiling (蒋惠岭) on the Last 10 Years of Judicial Reform | Supreme People's Court Monitor

Dean Jiang Huiling (蒋惠岭) on the Last 10 Years of Judicial Reform | Supreme People's Court Monitor

By Susan Finder

As the readers of this blog know, Tongji University Law School Dean Jiang Huiling worked at the Supreme People’s Court for over 30 years, and for over 25 of those years, he was involved in judicial reform. He has the most comprehensive and deep understanding of the importance, challenges, and multiple implications of reforming China’s court system.

On 11 January 2023, Dean Jiang spoke on the last 10 years of judicial reform to my judicial reform class at the School of Transnational Law, colleagues and students from Tongji University, and some other visitors.  This very delayed blogpost summarizes his presentation and responses to questions from the audience. The references to “we” in the summary are his, as are the unattributed quotations.

Presentation Outline

A. Roadmap of [the last ]10 Years of Judicial Reform
B. Four Fundamental Reforms
C. Judicial Organizations Reform
D. Procedural Justice Reform
E. Diversified Dispute Resolution
F. Judicial Democracy

G. Other Reforms

H. General Observations

A. Roadmap of Chinese Judicial Reform

The focus of his presentation was the last ten years of judicial reform (2013-2023), which included two five-year judicial reform plans. He first provided some historical background to the most recent two judicial reform plans, speaking about earlier judicial reform plans from a participant’s perspective.

1. Earlier judicial reform plans

Many Chinese scholars and some foreign scholars consider that those earlier ones were working method reforms, focusing on efficiency and other matters-they say is it not real judicial reform. He disagrees but says that it was only with the reforms of the last 10 years that structural (radical) reforms were made.

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Cathonomics: How Catholic Tradition Can Create a More Just Economy - Spring 2023 on Vimeo

 Cathonomics Anthony Annett

https://vimeo.com/806904670 

Cathonomics: How Catholic Tradition Can Create a More Just Economy - Spring 2023 on Vimeo

Cathonomics: How Catholic Tradition Can Create a More Just Economy - Spring 2023 on Vimeo: This is "Cathonomics: How Catholic Tradition Can Create a More Just Economy - Spring 2023" by Fordham Law School on Vimeo, the home for high quality videos…

Rule by Injunction?

Enforcement of Equitable Decrees 

The rule of thumb distinction between law and equity is that equity is in personam relief.  In the law courts monetary damages is the archetypical remed.  In the equity tradition the person is the object of justice.

A fundamental problem in  law is the primacy of positive, written law. Every system struggles with the   the tension between norms and commands.  In Chinese law Fa 法鲁 contends with 礼 Li - custom or norm. In religions of the book the Torah, the Gospels, the Quran all present themselves as the words of God or the agents of God.  But commands are often so broad (thou shalt not kill) that every system must elaborate its teaching on how to apply the general principles to particular situations.  In the Catholic tradition this is the product of revelation, the teaching of the magisterium, and the experience of the faithful.  In our tradition original understanding contends with the application of generalities such as due process, cruel and unusual punishment, equal protection, and the right to bear arms.

In England the law developed as a struggle between the middle class who emphasized free choice and the landed who emphasized the right to unfettered control of property.  The middle class developed law as the product of contract, and statute.  The prerogatives of the sovereign - in whose person power resided - combined with the sovereign's arrogation of the role of head of the Church.  The province of the Chancellor therefore was law adapted to the needs of the person, rather than enforcement of contract or the commands of written law.  

Because the sovereign also claimed authority over the entire realm the public interest also prevailed over the prerogatives of petitioners and respondents.  The remedial focus of chancery - the equity tradition - thus was in tension between the person and the interests of the public.  We see this now in the conventional locus of equitable remedies as "in personam" rather than "in rem".  Our system has, thus, replicated the inherent problem of subjectivity vs. objectivity - of individualized personal relief vs. the power and rigidity of the written word.   When either fails the law turns to the other.

The merchants and landowners who created the U.S. system were united in their resentment of the government of England - in which they had no say - they were uniquely resentful and subject to the sovereign King of England.  They therefore separated the judges from the executive (the Magistrate) and consolidated both Law and equity" in the hands of the judiciary in Article III of the Constitution.  Judges were doubly insulated from any leveling impulse or direct factional control by confirmation by the Senate (members selected by state Legislators not voters) and by life tenure during good behaviour.

But unified judicial authority proved deeply problematic.  The Supreme Court barred Maryland from burdening the national bank, and Pennsylvania from protecting the many fugitive slaves who entered from Maryland and Virginia. Ultimately the Supreme Court allied even more decisively with the slaveholders as Congress expanded slaveholding both north and west.  Civil War followed. 

Despite  the  post civil war 13th, 14th, and 15th Amendments to the national Constitution the Supreme Court deployed its power under Article III to limit the 14th Amendment's promises of equal protection and due process.  It left the states free to keep women in subordination, and to strip African Americans of the protections and citizenship rights promised. 

But as the nation was transformed by conquest into a continental power deference to state power proved problematic.  This was most dramatically exemplified by the passivity of the states and local governments when an emerging labor union - the American Railway Union - struck the Pullman Sleeping car company and crippled the interstate rail system by refusing to serve any train that carried its passengers.

In an unprecedented move the United States Department of Justice in In re Eugene Debs v. United States (1895,) citing the federal power to regulate interstate commerce, assumed the law enforcement role of state and local police and courts.   The Attorney General without statutory or substantial precedential support obtained an order barring the solidarity strike, jailing the Union's leader Eugene Debs, and deputizing thousands of men employed by the Pinkerton Company to block the picket lines formed by striking rail workers. 

In  the forty years that followed, as the trade union movement grew in size and importance the Supreme Court sanctioned the use of the anti-strike injunction and blocked states from passing laws to limit hours of labor and conditions of employment. The archetypal exercise of such power was in Lochner v. New York (1905).  Citing what Marx once called "that single, unconscionable freedom" - that of contract, the Supreme Court struck down a New York law limiting bakers hours of work to 60 per week.  That violated the Due Process clause of the 14th Amendment which protected  freedom of contact, according to the Court in its epochal decision.

The Lochner era would end only in the mid-1930s after the 1932 passage of the Norris LaGuardia Act which stripped the courts of jurisdiction to issue anti-strike injunctions .  In 1935 the National Labor Relations Act protected the right of workers in private industry to form unions, to strike, and engage in other kinds of "concerted activity". In 1938 the Court in Carolene Products declared that measures addressed to the public health and welfare would be subject only to "rational basis"" review by the Courts of the United States.

- GWC March 24, 2023

NIH Study: U.S. Stillbirth Rate “Unacceptably High” — ProPublica

NIH Study: U.S. Stillbirth Rate “Unacceptably High” — ProPublica

ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up to receive our biggest stories as soon as they’re published.

Federal officials have released a bleak assessment of the country’s progress in understanding and preventing stillbirths, calling the rate “unacceptably high” and issuing a series of recommendations to reduce it through research and prevention.

The National Institutes of Health report, titled “Working to Address the Tragedy of Stillbirth,” mirrored findings of an investigation by ProPublica last year into the U.S. stillbirth crisis, in which more than 20,000 pregnancies every year are lost at 20 weeks or more and the expected baby is born dead.

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ProPublica’s reporting found that a number of factors contributed to the nation’s failure to bring down the stillbirth rate: medical professionals dismissing the concerns of their pregnant patients, a lack of research and data, and too few autopsies being performed. Additionally, alarming racial disparities in stillbirth rates have compounded the crisis.

“The extent of the problem is massive,” said Dr. Lucky Jain, who served as co-chair of the Stillbirth Working Group of the Eunice Kennedy Shriver National Institute of Child Health and Human Development Council, which issued the report last week. “All of my life, I have maintained that what I cannot measure, I cannot improve. And so if I don’t have proper data, records, autopsy findings, genetics, the background information of why a fully formed baby died suddenly, how do I even begin improving things as a scientist?”

Wyoming’s abortion ban is blocked by a judge for the most hilarious reason - Vox

Wyoming’s abortion ban is blocked by a judge for the most hilarious reason - Vox

By Ian Millhiser

On Wednesday, a judge in the deep-red state of Wyoming temporarily blocked a state law that would make performing nearly any abortion in that state a felony. She relied on a 2012 amendment to the state constitution that was intended to spite then-President Barack Obama.

Obama’s early years in office were marred by a scorched-earth political campaign Republicans wielded to try to thwart what became the Affordable Care Act. Obamacare’s opponents warned of a “government takeover of health care” that would strip many Americans of their ability to make their own health decisions.

Many of these allegations were downright ludicrous, such as former Alaska Gov. Sarah Palin’s (R) false claim that Obama’s health bill would require “my baby with Down Syndrome ... to stand in front of Obama’s ‘death panel’ so his bureaucrats can decide, based on a subjective judgment of their ‘level of productivity in society’ whether they are worthy of health care.”

These attacks did not succeed. The bill became law, and Obamacare is popular now that it has been in full effect for nearly a decade without anyone being forced to stand before a death panel. But there is at least one lasting legacy of these attempts to characterize the Affordable Care Act as an attack on patients’ right to decide whether and when to seek health treatments.

In many states, opponents of Obamacare effectively took the GOP’s talking points and turned them into state constitutional amendments protecting patients’ ability to obtain health care that the government might not want them to have. Wyoming’s amendment, for example, provides that “each competent adult shall have the right to make his or her own health care decisions.”

According to Quinn Yeargain, a law professor at Widener University, similar amendments are on the books in several other states.

It remains to be seen whether the highest courts in these states, some of which are extremely conservative, will ultimately agree that these anti-Obamacare amendments prohibit abortion bans. And, in at least some cases, the amendments contain language that could mitigate their impact. Wyoming’s amendment, for example, also provides that, under certain circumstances, the state legislature may “determine reasonable and necessary restrictions on the rights granted” by the health care amendment.

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'No Hispanics' or 'grandmotherly types': NY prosecutors face complaints over jury bias - Gothamist

'No Hispanics' or 'grandmotherly types': NY prosecutors face complaints over jury bias - Gothamist

By SusanMax

Ten curre nt and former New York prosecutors who judges say illegally screened out potential jurors because of race or religion are facing ethics complaints that could prompt investigations or disciplinary actions.

Judges have already ruled either during trial or in appeals that all 10 prosecutors broke the law. But a group of law professors is now bringing ethics complaints against the prosecutors in the hopes of holding them accountable for what they did.

They have not yet faced any public discipline, according to state court records. Several of them were even promoted.

In some cases, the people who the prosecutors convicted filed appeals arguing that jury selection was biased and their convictions were overturned — but only after they had spent years behind bars.

The law professors are bringing the complaints, filed Monday with attorney grievance committees and shared first with Gothamist, as a way of finally holding the prosecutors accountable for violations that in some cases date back decades. The group, which calls itself Accountability NY, started submitting complaints against prosecutors accused of misconduct in 2021.

They said the violations are emblematic of a larger problem in the court system: attorneys illegally excluding jurors based on race and other aspects of their identity. Experts said it’s an illegal practice that undermines people's right to a fair trial — especially people of color.

The complaints name prosecutors in five district attorneys’ offices, including Brooklyn, Manhattan and Queens. In one 2018 case, a judge found that a prosecutor acted illegally when he struck all the Latino prospective jurors for a Latino man’s trial. In another that same year, a judge ruled that a prosecutor illegally removed the only two non-white people for the trial of an Afghan-American. In one case, a former prosecutor admitted to using notes filled with racist and sexist instructions — including “No Hispanics” and “Stay away from grandmotherly types” — to avoid choosing diverse juries in the 1990s.

Notes taken in the 1990s by former Queens prosecutor Christopher McGrath that outlined types of jurors to include or exclude based on their race, religion, gender and neighborhood.

Christopher McGrath grievance complaint.

“Diversity is an essential safeguard,” said Peter Santina, managing attorney of Civil Rights Corps’ Prosecutorial Accountability Project, which helped to file the complaints. “A representative jury can mean the difference between someone being wrongfully convicted or not.”

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New California Rule Compelling Attorneys to Report Misconduct by Other Attorneys to Circulate for Public Comment - The State Bar of California - News Releases

The California State Bar, alone among the state lawyer licensing authorities, has not adopted the American Bar Association 's rule requiring lawyers to report their knowledge of another attorney's ethical fitness to practice. The ABA  Model Rule Provides in part:

Rule 8.3: Reporting Professional Misconduct

Maintaining The Integrity of The Profession

(a) A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority.

 

But, reeling under the impact of treports of the State Bar's failure to respond to grossly unethical conductby two high profile attorneys - Thomas Girardi and Michaal Avenatti - the State Bar has proposed that the Supreme Court of California be obligated to report misconduct or unfitness of which they have knowledge.  The the State Bar is a governmental body but the state's Supreme Court will decide any changes. - GWC

 

New California Rule Compelling Attorneys to Report Misconduct by Other Attorneys to Circulate for Public Comment - The State Bar of California - News Releases

At its meeting on March 16, 2023] the State Bar of California Board of Trustees approved a 45-day public comment period for two options for a new rule that would create a duty for California attorneys to report misconduct by other attorneys.

"We want to hear from the public about whether it is time for California to join the rest of the nation in implementing some version of a rule establishing a duty for attorneys to report misconduct by their professional peers,” said Board Chair Ruben Duran. “I believe the public we are mandated to protect will be the ultimate beneficiaries of this proactive effort.”

California is the only state that has yet to adopt some version of the American Bar Association (ABA) Model Rule 8.3, which establishes a duty to report misconduct that “raises a substantial question as to the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects.”

Since 2010, California has twice considered and rejected such a rule due to concerns raised by attorneys. The new California proposal was developed at the direction of Board Chair Duran at the November 2022 Board meeting. The Committee on Professional Responsibility and Conduct developed and circulated for public comment a proposed rule that was then revised and adopted for submission to the Board. Additionally, staff proposed an alternative version with a slightly broader set of reporting requirements.

Both alternatives require reporting if a lawyer knows of credible evidence of misconduct. The primary differences between the two alternatives are the types of conduct that must be reported and the trigger for that mandatory reporting:

• Alternative 1: Requires reporting:
  • Of criminal acts, fraud, or misappropriation of funds or property in violation of rule 1.15 and;
  • If the conduct raises a substantial question as to an attorney’s honesty, trustworthiness, or fitness as an attorney in other respects.
• Alternative 2: Expands the type of conduct that must be reported to include acts of dishonesty, deceit, and misrepresentation. There is no requirement that the misconduct that must be reported must “raise a substantial question,” but the duty to report criminal acts arises only if such acts reflect adversely on an attorney’s honesty, trustworthiness, or fitness as an attorney in other respects.

Both alternatives include exceptions if reporting would disclose confidential information protected by other rules or laws, such as client confidentiality or attorney-client privilege. Information obtained by a lawyer participating in any substance use or mental health program would also be exempt.

After the public comment period, the Board is expected to consider the public input and rule proposal at its May meeting before sending a proposed rule to the California Supreme Court for its consideration. The Supreme Court must approve a rule before it becomes final.

The state Legislature is also considering a bill, Senate Bill 42, which would establish a statutory duty for attorneys to report misconduct by other attorneys. Currently the bill reflects the same duty to report as outlined in ABA Model Rule 8.3.

Also during the meeting, Executive Director Leah Wilson previewed efforts being made to strengthen the State Bar’s whistleblower and whistleblower retaliation policy. The effort is among numerous reforms that have been undertaken by the State Bar, as noted in a reform chronology shared last week with the announcement regarding the May and Lazar reports into past handling of closed complaints against now-disbarred attorney Thomas V. Girardi.

State Bar of California Releases Reports Detailing Past Unethical Conduct in Handling Girardi Complaints - The State Bar of California - News Releases

State Bar of California Releases Reports Detailing Past Unethical Conduct in Handling Girardi Complaints - The State Bar of California - News Releases

Friday, March 10, 2023 

   Categories: News Releases

The State Bar of California Board of Trustees released today two redacted reports on its past handling of complaints against disgraced and disbarred attorney Thomas V. Girardi. The Board decided to release the reports in furtherance of the agency’s public protection mission and its commitment to transparency and accountability. In releasing these reports, the State Bar has redacted information that is protected under the law, including California Business and Professions Code section 6086.1, and the right to privacy.

The first report was prepared by attorney Alyse Lazar, who in 2021 was retained by the State Bar to review 115 files of past complaints against Girardi. Her review, limited to documents in investigative files, identified numerous instances in which complaints were closed without complete investigations or despite the development of facts warranting discipline. A redacted version of the report is posted here.

The second report was completed by Halpern May Ybarra Gelberg LLP, an outside law firm hired by the State Bar to conduct a wide-ranging investigation that was not limited to file review and included interviews of 74 witnesses and extensive evidence gathering. The May report details instances where Girardi’s efforts to buy relationships and exercise influence at the State Bar—at all levels—likely impacted the handling of some complaints against him, causing those complaints to be closed improperly. A redacted version of the report is posted here.

Together, the two reports provide a clear and comprehensive review of how Girardi’s unethical and unacceptable behavior went unchecked for so long and reveal systemic organizational dysfunction that persisted for many years and through many changes of leadership. Importantly, none of the individuals whose unethical behavior is detailed in the May report are still affiliated with or employed by the State Bar in any capacity.

“To ensure that what happened in the Girardi matter never happens again, we commissioned unflinching investigations by outside experts, are making the results public to the extent we can legally do so, and are addressing the findings comprehensively,” said Ruben Duran, Chair of the State Bar Board of Trustees. “While none of the individuals named in the May report are still at the State Bar, the magnitude and duration of the transgressions reveal persistent institutional failure and a shocking past culture of unethical and unacceptable behavior. In recent years we have put in place many safeguards that serve both to prevent unethical or corrupt behavior and—if it does occur—to catch and address it quickly. That work continues. Providing this disclosure is a necessary step to demonstrate our commitment to transparency and accountability and restore public trust.” 

The findings

During a 16-month investigation, May and his team reviewed over 950,000 documents, issued 23 subpoenas, and interviewed, either voluntarily or under compulsion, 74 witnesses. The May report indicates that Girardi intentionally cultivated relationships at many levels in the State Bar to increase his influence in the agency. The report outlines several instances of past State Bar staff exercising poor judgment, ignoring or poorly handling conflicts of interest, and otherwise behaving unethically. None of the individuals identified as engaging in unethical conduct remain affiliated with or employed by the State Bar.  

Examples include:

• Former State Bar employee Tom Layton, who was terminated in 2015, (and his wife) received gifts and payments estimated at over $1 million from Girardi, through his firm, while Layton was employed at the State Bar. Those payments and gifts were never properly disclosed.
• Other State Bar employees and Board members accepted and failed to report gifts and other items of value from Girardi.
• Relatives of staff members were employed by Girardi’s firm.
• Staff in the Office of Chief Trial Counsel (OCTC) were improperly involved in matters assigned to outside conflict counsel.
• Eight Girardi cases were closed by individuals who May determined had conflicts of interest at the time they worked on the cases. The report found that their conflicts tainted their decisions to close the cases.
• Interim Executive Director Bob Hawley ghostwrote decisions in matters assigned to outside conflict counsel without disclosing that fact, including a decision to recommend closure of a complaint against Girardi.
• Between 2013 and 2015, both the Executive Director’s Office and Office of General Counsel received reports about Girardi’s influence at the State Bar and connection to Layton and others but failed to investigate. 
• Former Executive Director Joe Dunn, who was terminated in 2014, and Hawley made questionable terminations of two OCTC attorneys who were advocating for disciplinary actions against Girardi.
• On at least one occasion, Girardi successfully deployed his connections at the State Bar to discourage people from making complaints against him.  

The May report found that—while the State Bar has since done much to remedy these problems—in the past, conflict policies were weak, record-keeping on conflicts was incomplete, and awareness of conflict rules, which should have influenced case assignments and handling, was low.

The 2021 Lazar report revealed errors made in case closures over the four decades of Girardi’s career. In particular, the report identified significant issues regarding the investigation and evaluation of high-dollar, high-volume trust accounts. The 2021 Lazar report prompted the Board to undertake the May investigation and to take several actions by the Board to strengthen the discipline system.

Actions already taken

Current Board and staff leadership have already taken many steps to reform the agency. Many of the failures outlined in the May report occurred before 2018, when the State Bar shed its professional association functions and focused more sharply on its public protection mission. Examples of these reforms include:

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