Senator Menendez - making sense of Massachusetts

Democratic Senatorial Campaign Committee Chairman Robert Menendez (DNJ) just issued the following statement regarding the special election in Massachusetts. Here's the full text.

I have no interest in sugar coating what happened in Massachusetts. There is a lot of anxiety in the country right now. Americans are understandably impatient. The truth is Democrats understand the economic anger voters feel, that's in large part why we did well in 2006 and 2008.

In the days ahead, we will sort through the lessons of Massachusetts: the need to redouble our efforts on the economy, the need to show that our commitment to real change is as powerful as it was in 2008, and the reality that we cannot take a single thing for granted and cannot afford even a second of complacency.

We must be aggressive in defining our opponents and framing the choice voters face. We cannot be timid about staking out our ground and we must be strong in reminding voters the cost of what the Republicans did on their watch and that they remain on the side of Wall Street, and the special interests.

But it is important to keep in mind that today's special election in Massachusetts was just that: a special election, with a whole host of circumstances that are unique. I would caution against taking a single unique election and extrapolating what it means for the midterms ten months away.

Massachusetts voters fail in Senate race

“I’m hoping that it gives a message to the country,” said Marlene Connolly, 73, of North Andover, a lifelong Democrat who said she cast her first vote for a Republican on Tuesday. “I think if Massachusetts puts Brown in, it’s a message of ‘that’s enough.’ Let’s stop the giveaways and let’s get jobs going.”

Appalling is what I have to say for the voters of Massachusetts.  To replace Ted Kennedy with a militant opponent of health care reform?  What motivates them?  We have health insurance - why should we pay for them? What kept minority turnout low?  Short-sightedness.  Labor?  More of the same. Democrats on the left whose complaint was the health care bill didn't go far enough.  And didn't vote in high numbers?


Whatever it is, the voters lost the election, set the country back, energized the wrong forces.  Those who call themselves progressive need to grow up and recognize how complicated it all is, how fearful people are, and re-commit themselves to the fight.  Did they think change would be easy?


On the big question: the House should approve the Senate bill.  Let the majority rule.

History Lesson

Most Federal Clerkship Applicants are law grads now

1,200 jobs - 400,000 applications.  That is the tangle created by the ease of online application for federal judicial clerkships - and the disruption of the market for high-scoring law school graduates, according to a recent article in the New Jersey Law Journal.  Most applicants now are graduates - not students in their final year.

One reaction of judges is to withdraw from the OSCAR system, according to Judge Nicholas Garaufis, who heads up the federal judiciary's OSCAR committee and sits in the Eastern District of New York.

Garaufis is one of a growing numbers of federal judges who no longer hires clerks directly out of law school. His clerks come from the ranks of young lawyers who have worked in firms. Garaufis says that restricting his hiring to experienced lawyers reduces the pile of resumes to be reviewed.

The OSCAR system allows a judge to sort applications by law school, law journal experience, specific areas of legal experience and numerous other criteria.

Even so, it's hard to get a sense of an applicant's suitability from raw data, says U.S. District Judge Dennis Cavanaugh in Newark. Even a valedictorian might not be the best person to hire, he says.

He says he can't come close to reviewing all 1,000 or so resumes he receives. Instead, he finds many of his clerks from recommendations and also has selected from a number of judicial interns who have shown their mettle.

Noel Hillman, one of six federal judges in New Jersey who do not accept online applications, says he has cut the number of applications from 1,500 to about 500 by accepting mail queries only.

Cavanaugh and Hillman are examples of judges who are benefiting from the emergence of practitioners as applicants on the district court level.

One of Cavanaugh's current clerks is a former law firm associate. And Hillman has no 2009 graduates among his three clerks. One has held the job permanently since 2006, one clerked for a year for another judge, and the other had a prior stint as a clerk and had worked in private practice.

National Catholic Reporter: Health Care Bill Must Pass

Catholic swing voters, backed by the U.S. Conference of Catholic Bishops, have upped the ante on health care: not just neutrality but no complicity on abortion has become their demand.  I generally mistrust the "right to life" movement, seeing it as a wedge issue of the right - like the racism and militarism that have driven the post-Civil Rights sun belt Republican "southern strategy" the past 40 years.  But it is clearly more than that.  A religion with rituals of birth and resurrection at its center certainly will place life on the highest pedestal. 


So there has been a great tension among Catholics: can we advance health care and reduce abortion at the same time? 

The editors of National Catholic Reporter think so.  
The Health Care Bill Must Pass, they say.

Krugman: Keeping it simple on healthcare

KISS, as we used to say about building your case for trial:

One health care reform, indivisible

by Paul Krugman
(so nice he won the Nobel as the Chicago School sinks into the dustbin, after incalculable damage to the economies of the world - not to mention their desiccation of legal theory. -gwc)

Jonathan Chait reads Peggy Noonan, so I don’t have to:

The public in 2009 would have been happy to see a simple bill that mandated insurance companies offer coverage without respect to previous medical conditions. The administration could have had that—and the victory of it—last winter.

Instead, they were greedy for glory.

Chait explains why this is nonsense. But let me explain at fuller length, because this is one of the great misunderstood keys to the whole health care debate.

Start with the proposition that we don’t want our fellow citizens denied coverage because of preexisting conditions — which is a very popular position, so much so that even conservatives generally share it, or at least pretend to.

So why not just impose community rating — no discrimination based on medical history?

Well, the answer, backed up by lots of real-world experience, is that this leads to an adverse-selection death spiral: healthy people choose to go uninsured until they get sick, leading to a poor risk pool, leading to high premiums, leading even more healthy people dropping out.

So you have to back community rating up with an individual mandate: people must be required to purchase insurance even if they don’t currently think they need it.

But what if they can’t afford insurance? Well, you have to have subsidies that cover part of premiums for lower-income Americans.

In short, you end up with the health care bill that’s about to get enacted. There’s hardly anything arbitrary about the structure: once the decision was made to rely on private insurers rather than a single-payer system — and look, single-payer wasn’t going to happen — it had to be more or less what we’re getting. It wasn’t about ideology, or greediness, it was about making the thing work.
from Paul Krugman's blog The Conscience of a Liberal,  New York Times online, January 8, 2010

Ineffectiveness of Counsel: 4 Capital Cases - Coherence or Incoherence?

Four capital cases - each a gruesome crime - presenting ineffective assistance of counsel claims - have been decided (three without without argument)  by the U.S. Supreme Court. In two the death penalty is reinstated - in the third it is vacated.


Looking at the cases through the narrow lens it set in the landmark case Strickland v. Washington, 466 U.S. 668 (1984) the Court uses the harmless error approach.  The Court asks not whether the sentence is just - but whether the defense lawyers did enough to meet the constitutional minimum required by its understanding of the 6th Amendment.  It then asks whether an "error by counsel, even if professionally unreasonable" had an "effect on the judgment", that is the defendant must "affirmatively prove prejudice".  

In a larger frame questions arise:

What principle, if any, unites the three decisions?

Or do they reflect the biases, passions, and prejudices of the nine?
Is the Court improperly denying the right to a fair trial with a competent defense lawyer, interposing its own judgment for that of a jury?

Are the practice guidelines of the American Bar Association entitled to any particular weight - or do they reflect the views of an excessively protective minority as Justice Alito's concurrence in Van Hook seems to suggest?

Does service in combat really warrant decisive consideration as a mitigating factor when 40 years later a gruesome crime is committed, as the Court's opinion in Porter says it does?

In the first, Van Hook, the killer was the alcoholic child of abusive parents, who had been expelled from the military. The Court reversed the 6th Circuit Court of Appeals and reinstated the death penalty.

Is the court right to disregard the ABA's much more stringent practice guidelines developed after Van Hook's conviction? Is Van Hook's waiver of a jury trial irrelevant here?

In Wong v. Belmontes the killer experienced a religious conversion after the offense and made positive contributions to a youth rehabilitation program - but at the time of trial only evidence that mitigated the severity of the crime could be considered by the jury under California law. The Court reversed the 9th Circuit and reinstated the death sentence.

Is Justice Stevens right that since the evidence was inadmissible at the time in California there was no prejudice?

In Porter v. McCollum the court was moved to vacate the 11th Circuit decision which upheld the death sentence because George Porter, who shot his ex-girlfriend and her boyfriend,

is a veteran who was both wounded and decorated for his active participation in two major engagements during the Korean War; his combat service unfortunately left him a traumatized, changed man. His commanding officer’s moving description of those two battles was only a fraction of the mitigating evidence that his counsel failed to discover or present during the penalty phase of his trial in 1988.

Is the fact that Porter's "horrible" family life - which led him to join the Army at 17 - was compounded by the ordeal of combat so important that it should be given decisive weight in mitigation of a crime that occurred 35 years later - as the Supreme Court does?

Are there really any consistent standards at work here?


Smith, Warden v. Spisak
Decided January 12, 2009
Merits Briefs


The Supreme Court unanimously reversed the 6th Circuit and reinstated the death sentence of Frank G. Spisak, Jr. (who has been in jail over a quarter century for three murders committed at Cleveland State University).  Spisak's attorney had argued at closing, according to Justice Stevens's concurring opinion:

“Sympathy, of course, is not part of your consideration. And even if it was, certainly, don’t look to himfor sympathy, because he demands none. And, ladies and gentlemen, when you turn and look at Frank Spisak, don’t look for good deeds, because he has done none. Don’t look for good thoughts, because he has none. He is sick, he is twisted. He is demented, and he is never going to be any different.

And then the strategy really broke down: At no point did counsel endeavor to direct his negative statementsabout his client toward an express appeal for leniency. On the contrary, counsel concluded by telling the jury that “whatever you do, we are going to be proud of you,” which I take to mean that, in counsel’s view, “either outcome, death or life, would be a valid conclusion”.

Leading trial lawyers and teachers of trial advocacy (including Steven Lubet, Michael Tigar, and Herbert J. Stern) wrote as amicus curiae:

Amici are unsurprised that the Sixth Circuit commented that the same argument, if made by a prosecutor, “would likely have been grounds for a successful prosecutorial misconduct claim.” Spisak v. Mitchell, 465 F.3d 684, 706 (6th Cir. 2006)... See generally JOSEPH F. LAWLESS, PROSECUTORIAL MISCONDUCT §§ 9.14-9.15, 9.19, 9.21 (3d ed. 2003) (typical prosecutorial abuses in a closing argument include “appeals to the * * * prejudices of the jury,” “[a]ttacking the defendant—name calling,” and “express[ing] his personal opinion as to the * * * guilt of the defendant”).

If a fair trial requires the effective assistance of counsel, which includes zealous advocacy for one's client, not being a "friend of the court" and Spisak didn't get such a defense, wasn't the 6th Circuit right - and the Supreme Court wrong - that the courts have failed in their constitutional duty to assure a fair trial?

Securities Reform: Dodd Measure Would Restore Aiding & Abetting Liability

Last September Sen. Arlen Specter introduced S. 1551 which would overturn the Supreme Court's Stone Ridge Investments decision which barred "aiding and abetting" liability in securities fraud cases, as we reported here. Specter held hearings but as a free-standing measure it had little chance of passage.

K. Stewart Evans of Pepper Hamilton reports that [retiring] Sen. Christopher J. Dodd (D-Conn.)’s draft Restoring American Financial Stability Act of 2009 contains a provision (page 795 of 1,136) that amends Section 21D of the Securities Exchange Act of 1934 (15 U.S.C. 78u-4) to overruleStoneridge. It provides:

(g) PRIVATE CIVIL ACTIONS.—For purposes of any private civil action implied under this title, any person that knowingly or recklessly provides substantial assistance to another person in violation of this title, or of any rule or regulation issued under this title, shall be deemed to be in violation of this title to the same extent as the person to whom such assistance is provided.

Evans laments that

the proposed amendment 15 U.S.C. 78u-4 would allow plaintiffs to pursue secondary actors such as accountants, underwriters, lawyers, customers, and suppliers without having to prove they relied upon their statements or representations when purchasing or selling securities.

In an action under Sec. 10(b)(5) of the Securities and Exchange Commission Act a plaintiff must prove (1) a material misrepresentation or omission by the defendant; (2) scienter; (3) a connection between the misrepresentation or omission and the purchase or sale of a security; (4) reliance upon the misrepresentation or omission; (5) economic loss; and (6) loss causation.See Dura Pharms., Inc. v. Broudo, 544 U.S. 336 (2005)."

Evans's alarm is overstated because the reliance element was eased by the Supreme Court in Basic v. Levinson, 485 U.S. 224 (1988). the Court said

“Requiring a plaintiff to show a speculative state of facts, i.e., how he would have acted if material information had been disclosed, or if the misrepresentation had not been made, would place an unnecessarily unrealistic evidentiary burden on the Rule 10b-5 plaintiff who has traded on an impersonal market.”

Thanks to Kevin LaCroix, D & O Diary for the update. Kevin's latest is always available on my blogroll on the right.

Linda Greenhouse: Judges and the political art of compromise

Image: Frank M. Coffin - U.s. Court of Appeals for the First Circuit

New York times

OPINION

Opinionator: A Judge and a Politician

By LINDA GREENHOUSE

Published: December 31, 2009

Why it's unfortunate that more politicians don't become judges.

A Place in Between - Russ Hoyle on Rory Stewart's stance on Obama's Afghan Surge

above: Rory Stewart - Kabul; below: Russ Hoyle - NYC

Rory Stewart is a wunderkind who has managed to find a place neither plainly right nor left without being centrist. He is a darling of the left as the New York Review of Books' in-house commentator on Iraq (where he served as colonial provincial governor for the Coalition Provisional Authority - writing Prince of the Marshes), and Afghanistan (where his legendary solo walk in 2002 yielded The Places in Between). Yet he has also appealed to the political right. He is trekking the remote Penrith and The Border constituency as the Conservative Party candidate for House of Commons. He is now Director of the Carr Center at Harvard's Kennedy School of Government. Stewart's recent opinion pieces include "Afghanistan - a war we cannot win" in the London Telegraph, July 10, 2009.

Russ Hoyle, guest writer and veteran editor, is the author of Going to War - a history of how the Bush-Cheney administration drove the country to invade Iraq on premises all now acknowledge were, to be charitable, factually incorrect.

- GWC

I have determined that it is in our vital national interest to send an additional 30,000 US troops to Afghanistan. After 18 months, our troops will begin to come home.

- Barack Obama, West Point, December 1, 2009

I felt as though I had come to hear a fifteenth-century scholastic and found myself suddenly encountering Erasmus: someone not quite free of the peculiarities of the old way, and therefore haunted by its elisions, omissions, and contradictions; but already anticipating a reformation.

Obama's central—and revolutionary—claim is that our responsibility, our means, and our interests are finite in Afghanistan. As he says, "we can't simply afford to ignore the price of these wars." Instead of pursuing an Afghan policy for existential reasons—doing "whatever it takes" and "whatever it costs"—we should accept that there is a limit on what we can do. And we don't have a moral obligation to do what we cannot do.

- Rory Stewart, New York Review of Books, January 14, 2010

For a guy who's been contemptuous of military action in Afghanistan, utterly dismissive of counterinsurgency, and whose opening six paragraphs are at best idiosyncratic and hard to figure, I find "Afghanistan - What Could Work" - Rory Stewart's new New York Review of Books essay to be a hard right lurch from the left that lands him in moderate, pro-Obama territory.

In the larger political circus, it may also be a measure of how effectively Obama's Afghan policy has mollified the Democratic left, at least for now.

Perhaps more than anything else, Stewart is accommodating himself to the reality that Obama's Afghan policy has gotten at least tepid approval from the policy world. The essay appears to be his bid, as the director of the Carr Center at Harvard's Kennedy School of Government, to come in from the cold and position himself as a serious analyst among the policy-making elite, using his long critical stance to bolster the persuasiveness of his newly conciliatory views.

Stewart sees Obama's view of limited U.S. means, interest, and responsibility in Afghanistan as "revolutionary" and appears to mean it. Obama, in his view, has avoided key traps, most importantly, not using the language of counterinsurgency, which allows him freedom from its strictures (such as the 1-counterinsurgent-for-every-50-population rule), and avoiding Bushesque cliches like "defeat is not an option" or "victory whatever the cost."

Though true enough, these seem to me windy abstractions that are largely meaningless except to allow Stewart to maneuver around his own objections to the U..S. escalation of armed force. He more or less winds up embracing Obama's policy as holding out the possibility of "the responsible exercise of limited power and knowledge in concurrent situations of radical uncertainty" (pg. 63, col.3), abetted by smart regional diplomacy -- which this former British diplomatic officer (and artillery officer) always has been comfortable with. Born in Hong Kong, his “smart imperialist” roots run deep.

In short, Stewart has twisted his antiwar views like a pretzel to come up with a position essentially agreeing with Obama's escalation, which IS counterinsurgency, IS nationbuilding, DOES link Afghanistan and Pakistan, and, as Stewart clearly grasps, WILL take a helluva lot longer than 18 months -- but probably without further escalation.

That, at least, is what Obama is gambling on, and, because of what he sees as Obama's careful but probably as-yet incomplete articulation of the policy, Stewart pretty much buys it hook, line, and sinker.

- Russ Hoyle

January 1, 2010

Fosamax: 2d bellwether case dismissed

Osteonecrosis of the jaw is a widely reported phenomenon among patients taking bisphosphonates - the class of drugs to which Fosamax belongs.

In 2005 Merck, with FDA approval, changed its label, adding this Precaution:

Dental

Osteonecrosis of the jaw, generally associated with tooth extraction and/or local infection, often with delayed healing, has been reported in patients taking bisphosphonates. Most reported cases of bisphosphonate-associated osteonecrosis have been in cancer patients treated with intravenous bisphosphonates, but some have occurred in patients with postmenopausal osteoporosis.

Known risk factors for osteonecrosis include a diagnosis of cancer, concomitant therapies (e.g., chemotherapy, radiotherapy, corticosteroids), poor oral hygiene, and co-morbid disorders (e.g., pre-existing dental disease, anemia, coagulopathy, infection).

Patients who develop osteonecrosis of the jaw (ONJ) while on bisphosphonate therapy should receive care by an oral surgeon. Dental surgery may exacerbate the condition. For patients requiring dental procedures, there are no data available to suggest whether discontinuation of bisphosphonate treatment reduces the risk for

ONJ. Clinical judgment of the treating physician should guide the management plan of each patient based on individual benefit/risk assessment.

The American Association of Oral and Maxillofacial Surgeons, in a Position Paper on Bisphosphonate-Related Osteonecrosis of the Jaws Approved by the Board of Trustees September 25, 2006 expressed the conviction of practitioners that the hazard was well established for some patients. In legal argot this is evidence in favor of "general causation" - that the drug can have the toxic effect in at least some patients.

The first of the 950 Fosamax cases to be selected for trial in the consolidated Multi District Litigation was declared a mistrial because of a bitter interpersonal conflict within the jury. The second - Bessie Flemings v. Merck - pitted a 73 year old cancer patient against Merck. U.S. District Judge John Keenan - manager of the cases - dismissed Fleming's case after a Daubert motion narrowed the class of cases which he deemed were sufficiently supported to go to a jury.

The court was dismissive of the quality of the medical evidence. Keenan found that plaintiff's dentists had not presented adequately reasoned opinions linking Fosamax to Fleming's affliction - one to which cancer patients are particularly prone. The treating physicians' `subjective belief' was inadequately supported by reasoning and could not establish the necessary individual causal link ["specific causation"], Keenan ruled.

Particularly sensitive patients are very risky for plaintiffs. While the vulnerability of the plaintiff is appealing, the presence of a strong pre-disposition is very dangerous for proof of the drug's causal role. Weak dose-response evidence often proves fatal unless the biological mechanism strongly implicates the drug. That was fatal to Flemings' claim - and is an ill omen for the upcoming plaintiffs. Judge Keenan finished the job he began in July 2009. He ruled then in Daubert motions that plaintiffs had no proof sufficient to establish that stopping Fosamax led to any improvement in patients with active osteonecrosis.

Plaintiff does not provide the Court any scientific literature or studies that would support Dr. Rose’s theory of causation. Through the course of this multi-district litigation, other experts have opined based on scientifically valid methodologies that Fosamax can cause ONJ. However, nowhere in its opposition to Defendant’s motion for summary judgment, or in the exhibits attached thereto, does Plaintiff provide the Court information regarding Dr. Rose’s theory — that a patient’s ONJ would heal soon after she stopped taking Fosamax only if in fact the injury was caused by the drug.5

5 The Court observed in its ruling on the parties’ Daubert motions that the Plaintiffs’ Steering Committee and its experts “did not defend the reliability” of a similar theory — that a “drug holiday” before dental surgery reduces the risk of developing ONJ. In re Fosamax Prods. Liab. Litig., No. 06 MD 1789, 2009 WL 2222910, at *31 (S.D.N.Y. July 27, 2009). The Court therefore granted Merck’s motion to preclude testimony that “cessation of Fosamax treatment is appropriate before major dental surgery.” Id.

Complete opinion dismissing Bessie Flemings v. Merck & Co., Inc., November 26, 2009, SDNY, 1:06-cv-7631 (JFK)

Resources:

Medline Plus: Fosamax (alendronate) page [National Institutes of Health]

FDA Postmarket safety page

Journal of Oral & Maxillofacial Surgey

Fosamax: Inventing a diagnosis, creating a blockbuster drug

Pillbox Biography: The Creation Of A Blockbuster Drug - NPR

With millions of women affected by osteoporosis, Merck knew it had a potential blockbuster drug when it developed Fosamax. The problem: A lack of bone density scanners and high costs meant not many women were getting diagnosed. Merck worked hard to make bone scan machines cheaper and more prevalent — and was wildly successful. By 2005, Fosamax sales peaked at almost $3.2 billion worldwide. Medicare claims for bone screening exams continued to increase, reaching 2.8 million in 2007. The drug went off patent in 2008. Currently, Congress is considering reducing Medicare payments for many types of scans.

How Merck did it - NPR

1992 World Health Organization osteoporosis meeting coins term osteopenia

1993 Fosamax approved in Italy

1994 Fosamax approved in Mexico

1994 77,000 file for Medicare reimbursement for mineral density studies

1995 Merck creates the Bone Density Institute

1995 Fosamax approved by FDA

1995 Only 1,000 U.S. sites have bone density testing machines

1997 Fosamax approved by FDA for preventive use Merck SEC filing says number of eligible women increases from 20 million to 39 million

1997 Pres.Clinton signs Bone Mass Measurement Act requiring Medicare to pay for bone density studies for post-menopausal women

4,000 sites have capacity to measure bone density

1998 Bone Mass Measurement Act goes into effect

1999 1.25 million women file Medicare claims

2000 Fosamax sales are $1.2 billion

2004 2.6 million women file Medicare reimbursement claims

Jeremy Allen - Merck strategist:

Images: graph - NPR, photos: Coburn Dukehart/NPR

Katie Benghauser, 57, has been diagnosed with osteopenia and takes Fosamax as treatment to prevent osteoporosis; Jeremy Allen

Drug problems: Menopause

Menopause, as Brought to You by Big Pharma

By NATASHA SINGER and DUFF WILSON

New York Times - Published: December 13, 2009

Lawsuits and internal documents show how Pfizer and its predecessors promoted the idea of taking hormone drugs.

Lauren Hutton video

Wyeth video on menopause

In re: Prempro Products Liability Litigation. Donna Scroggin, Plaintiff/Appellant, v. Wyeth, and its divisions; Pharmacia & Upjohn Company, L.L.C., Defendants/Appellees, 8th Cir., 2009 Opinion

Pfizer petition for rehearing and hearing en banc

Menopausal Hormone Litigation Documents

China: Jerome Cohen on Akmal Shaikh execution

NYU law professor Jerome Cohen, in an opinion piece in the South China Morning Post, laments China's courts' refusal to allow psychiatric evaluation of the defendant in the drug smuggling prosecution of a British citizen, Akmal Shaikh, who is to be executed tomorrow. China's obstinacy in the face of an appeal by British Prime Minister Gordon Brown on behalf of the UK citizen has drawn much criticism.

Cohen observes:

in some recent highly publicised capital cases, in which mentally disturbed defendants were charged with heinous offences such as multiple murders, the Supreme People's Court failed to insist on psychological evaluations in accordance with fair procedures. Last year's execution of police-killer Yang Jia is only the most notorious illustration.

Yet, Chinese courts have sometimes met the challenge. Several years ago in Beijing, for example, an American, ultimately diagnosed as a paranoid-schizophrenic, killed his Chinese wife because of the delusion that she was poisoning him. The trial court called for a thorough examination by experts at a local mental hospital.

Sadly, it is now too late for a similar evaluation in Shaikh's case, although British clemency pleas may yet succeed. In any event, the National People's Congress should enact legislation that will confirm detailed procedural protections to guarantee a fair and accurate mental assessment whenever the defence reasonably requests.

China's leaders continue to affirm their commitment to advancing the rule of law, so I welcome the passage of the tort law which I translated, and welcome the recent vigorous legislative discussion of the State Compensation Law - a means of redress for governmental misconduct.

But China's leaders are equally committed to disappointing those of us who want to see adherence to the norms that we have come to consider elementary. The other day Lu Xiaobo, author of a liberal manifesto, was sentenced to 11 years in prison for incitement of subversion under Art. 105 (2) of the Criminal Code. The judgment was by a court of the first instance and is subject to second instance trial and appeal.

But there is little reason for optimism that liberal advocacy such as Lu's will be tolerated, given the breadth of the statute's prohibitions. Banned are efforts to subvert the socialist system by "publishing, printing, reproducing, disseminating or airing publications", according to an Interpretation by the Supreme Peoples Court. ( 最高人民法院关于审理非法出版物刑事案件具体应用法律若干问题 的解释)."

Similar advocacy was criminalized in America 60 years ago in the Smith Act under which the leaders of the Communist Party were tried and convicted in U.S. v. Dennis. This law was determinedly beaten back by the Communists, their sympathizers, but more consequentially by civil liberties advocates, and, ultimately, the members of the United States Supreme Court who in the Yates case, 354 U.S. 298 (1957) limited prosecution to speech which presented a clear and present danger. Finally, in Brandenburg v. Ohio (1968) the United States Supreme Court limited criminal prosecution to speech "likely" to produce "imminent" lawless action.

The prospects for successful push back against anti-libertarian measures in China is markedly poorer than it was in the United States. The Chinese constitution's rights measures are not guaranteed by a court system that has neither a tradition of autonomy nor of using the Constitution to provide protections not afforded by legislation. That a legislative majority can amend the Constitution of China deprives the courts of a foundation for independent interpretive judgment.

Nor does China have the tradition of the trial as contest that is embedded in the 6th Amendment to our Constitution. The right to counsel, to confrontation of witnesses, to compel favorable testimony are not similarly embedded in Chinese criminal law or practice. It is the lack of the tradition of the trial that perhaps most dramatically divides our criminal justice system from China's. The things that flow from that - autonomous bar organizations and a bar committed to preserving the right and duty of vigorous advocacy - are absent in China. Disappointment is likely our fate - but for us, as observers, it matters little. For citizens of China the consequences are great.

Images: Akmal Shaikh, Gordon Brown, Jerome Cohen

5 more death sentences in Xinjiang riot killings

5 more death sentences have been announced bringing to 22 the number of people sentenced to death in the ethnic street violence early this year in Xinjiang between Uighurs and Han. It appears that the violence was initiated principally by Uighurs and that the bulk of the victims were ethnic Han who are the overwhelming majority of China's citizens. Nearly 200 died in the strife. This group of condemned is reported to be Uighur.

The Times account is HERE

Pitfalls of fame: Tiger's not alone

New York Times: Opinionator

Doug Glanville, who played for the Cubs and the Phillies from 1996 - 2004, points out in his Times column that the tiger pit into which Tiger Woods fell is the product of the deadly sin of pride into which it is particularly easy for a professional athlete to fall.

China: NPC adopts new tort code

The National People's Congress, after the fourth reading, adopted the Tort Law chapter of the revised civil code, Xinhua news Service announces:

The 92-provision law covers liabilities for a range of circumstances, including traffic accidents, medical accidents, work-related injuries, pollution, harm caused by other people's pets and mental distress.

It also covers infringements of personal rights, such as name, reputation, portrait and privacy.

The law, with equal importance with another civil rights law, the Property Law, was endorsed by the National People's Congress (NPC) Standing Committee. It takes effect next July.

The first draft was issued by the NPC in December 2002. The document, though more modest in scope, had a gestation period quite like that of the current (3rd) Restatement of the Law: Torts.

I have translated the first two drafts. Changes in the 3rd draft (tabled in October) and the 4th (final) draft are modest. Links to my work can be found HERE. The complete text (in Chinese) can be found HERE.

TNR: Why the health care bill is the greatest social achievement of our time.

The New Republic

And the Rest Is Just Noise

Why the health care bill is the greatest social achievement of our time.

At some level, it is possible to understand the roots of liberal frustration. The machinery of Congress has ground away at the health care bill, as it does to almost any bill. But at a broader level, the liberal mood is insane. What has emerged from that machinery is not merely “better than nothing” or “a good start.” It is the most significant American legislative triumph in at least four decades. Why can so few people see that?

- Jonathan Chait

For his full reasoning click HERE.

Thanks for the tip to James Fallows. Embarrassing to admit, but James Fallows only grabbed my attention about a year ago. Better late than never. It was his analysis of the Democratic primary debates in The Atlantic that got my attention. Then I found his blog - and his observations during the last of this three years in China and I was hooked. No regrets.

Legal aid lawyers: Congress lifts bar on attorneys fee awards for federally funded Legal Services Corp. lawyers

It is easy for progressives to draw false conclusions from the superficial reports of the "mainstream media". One of those false conclusions is that "nothing has happened". Actually a lot has happened - if you count that the economy is now in a stall rather than collapse.

But there is much more. One small item is an important reversal of a Reagan-era assault on Legal Services: the bar on recovering attorneys fees when a federally funded legal services organizations wins a case asserting citizens's rights.

The Congress has passed and President Obama signed on December 16 a repeal of that punitive statutory bar. The measure also increased Legal Services' federal funds from $390 to $420 million. It is not the $750 million proposed by Senator Tom Harkin  [D. Iowa] - the pre-Reagan funding level - but it is a step forward.

Legal Services programs continue to suffer from the collapse in the markets which deprives them of interst on lawyers trust accounts.

Thanks to the Brennan Center at NYU for helping to lead the charge on this issue.

Interactive guide to Recent Republican Sex Scandals

Thanks to Talking Points Memo

I considered that this is really low. It's unfair. What about Eliot Spitzer, and the Diamond rated escort who now has her own column or something? But what the F. It's pretty funny. And look at the hammering we took for Bill Clinton's peccadilloes, which forced us to defend him when we really wanted to smack him for putting us in that position.