Federal Regulations - the good news

Like a typical trial lawyer I think that regulations are minimum requirements that a jury should consider but not be bound by in deciding whether reasonable care was being taken for another persons's safety and security.  Issuance of federal regulations is a complicated process of notice, comment, response, White House review (by the Office of Information and Regulatory Affairs - OIRA), and, finally, judicial review.  A little appreciated consequence of the Presidential election is who staffs OIRA, and who is chosen to become a federal judge.  The consequences of both are significant.  Cass Sunstein (who recently concluded three years at OIRA before returning to the Harvard Law School faculty) lays out in a New York Review of Books article what it is all about.  He begins with a catalog of what the Obama administration has accomplished, then turns to what happens when judges review them.  The partisan divide is plain.

Much of the Affordable Care Act cannot go into effect until the Department of Health and Human Services issues rules that actually implement its provisions. Governor Romney has repeatedly said that he would like to repeal the act (and to eliminate or scale back many other regulations). Among other things, recent rules (1) prevent the denial of coverage to people with preexisting health conditions; (2) eliminate annual and lifetime limits on coverage; (3) limit the percentage of premium dollars that can be used for purposes other than health care; and (4) ensure that parents can keep children on their plans until the age of twenty-six.

The Obama administration has also issued rules designed:

• to increase fuel economy requirements for cars and trucks, saving consumers billions of dollars while reducing dependence on foreign oil;

• to protect food safety, with one rule preventing up to 79,000 cases of salmonella every year;

• to prevent hundreds of deaths and injuries on the highways, among other things by reducing the distance in which trucks are required to be able to come to a full stop;

• to protect workplace safety, among other things by requiring new and clearer hazard warnings;

• to ensure fair dealing and to avoid exploitation of college students, with new rules preventing abuses by for-profit colleges;

• to promote energy efficiency with new standards for refrigerators, clothes washers, clothes dryers, small motors, and more;

• to reduce the health risks associated with smoking, among other things by requiring graphic health warnings on cigarette packages;

• to prevent discrimination on the basis of disability and sexual orientation;

• to reduce air pollution, among other things by ensuring that states are not prevented from meeting federal air quality requirements because of pollution from other states (the “cross-state air pollution rule”).

These regulations, like almost all others, can be challenged in a court, which is typically a federal court of appeals consisting of a three-judge panel. As it turns out, a lot depends on whether the panel consists of Republican or Democratic appointees.

Here is a simple way to test whether political convictions matter in legal disputes over regulations. Ask just two questions. (1) Is the regulation being challenged by industry or instead by a public interest group? (2) How many of the three judges were appointed by a Republican president and how many by a Democratic president? If you know the answers to these two questions, it turns out that you know something important about the likely outcome. Here are three facts:

1. When the affected industry challenges a rule, Republican appointees are significantly more likely than Democratic appointees to vote to strike down that rule.
2. When a public interest group challenges a rule, Democratic appointees are significantly more likely than Republican appointees to vote to strike down that rule.
3. Judges’ likely votes are greatly affected by the positions of their colleagues. Sitting with two fellow Republican appointees, a Republican appointee becomes even more likely to side with industry. Sitting with two Democratic appointees, a Democratic appointee becomes even more likely to agree with a public interest group.

The Founders in their own words: the "artificial scaffolding" of Christian belief - Mirror of Justice

If it became known this week that this private letter was written as a college student by a candidate for - Senate?  Member of Congress? President? or Governor , what would be the consequence? - GWC
Mirror of Justice: The Founders in their own words: the "artificial scaffolding" of Christian belief: 

"And the day will come when the mystical generation of Jesus by the supreme being as his father in the womb of a virgin will be classed with the fable of the generation of Minerva in the brain of Jupiter. But we may hope that the dawn of reason and freedom of thought in these United States will do away [with] all this artificial scaffolding." — Thomas Jefferson to John Adams, 11 April 1823, Adams-Jefferson Letters,  Lestor J. Cappon, ed., II, 594 "

posted by Patrick Brennan
'via Blog this'

Stile: Christie fight over state Supreme Court is one for the ages : page all - NorthJersey.com

Stile: Christie fight over state Supreme Court is one for the ages : page all - NorthJersey.com:

A bitter partisan feud more than 150 years ago gave birth to the tradition of bipartisan balance on the New Jersey Supreme Court.
The two-year, bitter partisan feud between Governor Christie and Senate Democrats over the Supreme Court will enter a new stage when the governor offers two new nominees — possibly as early as this week. Christie’s next move could put that bipartisan tradition on trial. Or maybe redefine it.
In the eyes of lawmakers and governors, the tradition is an important hedge against partisan excess. And in the eyes of the public, a bipartisan Supreme Court is far more credible than one handed down by a court “chosen exclusively or preponderantly from one political party,” as Arthur T. Vanderbilt, the first chief justice of the modern court, wrote.
The stakes are high. The court rules on public school funding, environmental regulations, affordable housing and scores of other issues that affect the day-to-day lives of New Jersey residents.
Governors of both major parties have since stuck by the unwritten rule by “common consent” since the 1890s, making sure that the party of the sitting governor should hold a slight, 4-3 majority on the Supreme Court when possible.
The tradition is at the root of the current standoff between Christie and the Senate Democrats, led by Senate President Stephen Sweeney of Gloucester.
It also is why the Democrats say they rejected Christie’s two nominees to the court this year, Bruce K. Harris, a Republican lawyer from Chatham, and Phillip Kwon, the state’s first assistant attorney general, an independent from Closter. Christie argued that the nominations complied with the spirit of the bipartisan tradition, yielding a balance of three Republicans, two Democrats, and two independents.

'via Blog this'

"You are the change" - Obama's rhetoric and the abstract truth

Andrew Sprung writes

It didn't take a four-year crawl back from a financial industry meltdown to make Obama warn that change is slow and frustrating and unromantic. And understanding change as a joint project of leader and led is a concept that Obama has held, and expressed,  since he was a 24 year-old neophyte organizer.

The occasion for that insight into President Obama's consistent rhetorical theme (we are in this together) is Frontline's production of two contrasting personal letters - from Mitt Romney about his work as a Mormon missionary in France and Obama's as a community organizer.  Sprung lays out the consistency in Barack Obama's vision going back to his early twenties when he was a neighborhood organizer in Chicago. - GWC

The credo of a community organizer - Xpostfactoid

Frontline has put up a series of "artifacts" from the lives of Obama and Romney, including a letter, highlighted by Fallows, that Obama wrote to a friend in 1985 (at age 25) when he was a few months into his job as a community organizer on Chicago's South Side. One sentence leaped out at me, because it's echoed in Obama's rhetoric throughout his career in a strain that's often written off as mystical hooey -- including last month, in Charlotte. Not to be coy, I've highlighted it below.
"Promises I hope they can help me keep": Obama's speech at the Democratic Convention this year cast his presidency as such a joint operation. Carefully blended together were the things that "I've" done as president, the tenets that "we" believe, and the choice that "you" must make. That I-you-we blend prepared this peroration:

I work in five different neighborhoods of differing economic conditions. In one neighborhood, I'll be meeting with a group or irate homeowners, working class folks, bus drivers and nurses and clerical administrators, whose section of town has been ignored by the Department of Streets and Sanitations since the whites moved out twenty years ago. In another, I'll be trying to bring together a group of welfare mothers, mothers at 15, grandmothers at 30, great-grandmothers at 45, trying to help them win better job training and day care facilities from the State. In either situation, I walk into a room and make promises I hope they can help me keep. They generally trust me, despite the fact that they've seen earnest young men pass through here before, expecting to change the world and eventually succumbing to the lure of a corporate office. And in a short time I've learned to care for them very much and want to do everything I can for them.

Mrs. Parberry for President - she'll make the country purr!

created by Critter Outfitter - just up the block

Whither The Choice Election? | TPM Editors Blog

This is an excellent poost by   by TPM's Brian Beutler.  Romney went rogue last night: by bailing out on his Republican primary commitments and back-flipping to being the Governor of Massachusetts (which conservatives always feared).  And the etch-a-sketch caught Obama off guard.  If this is the new, "real Romney" who showed up it is a fundamental change in strategy - that could change the momentum in the race! - gwc
Whither The Choice Election? | TPM Editors Blog: 
by Brian Beutler

"As barefaced as it was I honestly don’t think Mitt Romney’s live-action Etch-a-Sketching Wednesday night should have come as such a big surprise. Yes, that’s easy to say with the benefit of hindsight. But this wasn’t a stump speech to base Republicans, it was his great entree to the full spectrum of voters, most of whom like President Obama pretty well. What is a big surprise to me — and what I think has the real potential to shake up the nature of the campaign — is how hungrily all the conservatives who’d crapped on Romney for being a moderate squish lapped up all that mushy centrism. Think about it. Romney talked up Romneycare, disavowed the central tent pole of his tax plan, downplayed his radical Medicare plan, claimed he wouldn’t reduce education spending, lauded key parts of the Wall Street reform law, and was silent about every potential budget cut except his bold plan to eliminate public broadcasting subsidies. And today his typically absolutist base couldn’t be happier."

'via Blog this'

Wilted? | TPM Editors Blog

This wories me, too. - gwc
Wilted? | TPM Editors Blog: by Josh Marshall
"I’m not sure I’d agree with this. But I did see several readers who cast President Obama’s debate performance last night as part of a larger problem of resisting or retreating from confrontation. One of them was TPM Reader HM. It’s something the campaign and the president need to take note of … Longtime reader with a take on the debate that I’ve not seen stated elsewhere:

 I’ve been an avid Obama supporter, voted for him in 2008 and will be voting for him again, but Obama’s performance last night highlights the very real, absolute worst thing about him as a president and leader: He can’t handle confrontation. He wilted at Romney’s aggressive approach. It totally threw him off his game and he never rebounded in any effective way. And, it’s highly representative of a wider problem. To his credit as a human being, Obama’s wired to irrepressibly seek compromise, to hold out the possibility of unifying the most polarized and entrenched forces, because he wants everyone to just get along. How many times have we heard him say, “I will listen to and consider any good ideas, whether they’re from Democrats or Republicans.”?"

'via Blog this'

The Verdict is in: Romney takes Round 1

There is no point in providing citations.  It is a unanimous verdict: Romney was on the attack with a barrage of well-delivered (if largely untrue) attack lines for which the President was unprepared.  Obama the Explainer was on full view.  He does not like to go for the jugular.  Neither do I but sometimes you have to.  And it is not that hard:  everybody knows that if you are going to cut $5 trillion in taxes it's going to cost somebody.  And you know it won't be Romney whose taxes are already 10 points lower than ours.  And you know that the monthly health insurance check you'll get instead of Medicare - Ryan-Romney care - will cost you.  I could go on, bu that's really enough now for post-debate blogging. - GWC
p.s. - except to add that Jim Lehrer really should be retired.  - gwc

CCP Central Committee Notice concerning Strengthening Propaganda and Ideology Work | China Copyright and Media

Construction of socialist legality is not just a slogan in China.  The Party means it.  Development of the legal system is designed to strengthen socialism, not to edge toward a western liberal model.  This 1989 Central Comittee memo makes that point.  h/t Rogier Creemers  - GWC
CCP Central Committee Notice concerning Strengthening Propaganda and Ideology Work | China Copyright and Media:

"To realize Party leadership over news, publishing and cultural work, it is necessary to rely on the efforts of all levels’ Party Committees in many areas. Talking about management, at the same time as relying on policy and administrative means, legal system construction must also be strengthened and management according to the law implemented. It is necessary to further determine and concretize citizens’ rights and obligations in speech, publication and other aspects, the Socialist orientation of  propaganda, ideological and cultural work, the leadership position of the Party in ideological work and the guiding position of Marxism." 

'via Blog this'

Judicial Independence - But from Whom? - Jotwell: Legal History

Jed Shugerman is a brilliant young historian  Amazing how going back to the record explodes myths.  One is that we freed judges from politics by making them appointed rather than elected.  That is certainly the received wisdom.  But Jed Shugerman looks back to the 19th century and reports that people elected judges in order to insulate them from interference by governors and legislators.
So when we lament - as I do - the successful campaign to remove Iowa Supreme court judges who voted for same sex marriage, it is good to remember that the electorate elections is only one pressure group ofr many - as we are seeing in the stalemate in New Jersey over nominees to the Supreme Court - whose liberal character Gov. Chris Christie unashamedly wants to change. - GWC
Judicial Independence, But From What? - Jotwell: Legal History:
by Stuart Banner

 If you’ve ever been in a state with contested judicial elections and seen the TV commercials in which the candidates all claim to be the toughest on crime, you start to worry about the intrusion of politics. I imagine that’s the conventional understanding of judicial elections. It was certainly mine.
No other country has this system, so why do we? To the extent there is a conventional historical account, it is that judicial elections were a product of Jacksonian democracy. The idea was to reduce the independence of judges, to bring them closer to the will of the people, to shift power from insulated elites to accountable citizens. That’s a plausible enough story. I believed it.
In The People’s Courts, Shugerman shows that this isn’t true at all.

h/t John Steele - Legal Ethics Forum 


'via Blog this'

The Single-Issue Trap | Commonweal magazine

A thoughtful essay about the U.S. Catholic Bishops guide for voters by Notre Dame law professor Cathleen Kaveney.  In my view the Bishops - having failed the biggest moral crisis of our era (clerical sex abuse) - seek to redeem themselves by elevating abortion above all others, while making the fight against same-sex marriage a priority, helping to further isolate youth (and me) from the Church hierarchy.  
Archbishop John Myers of Newark has now gone so far as to say, in a nearly interminable pastoral letter to the faithful that those who don't accept the hierarchy's absolute prohibition of gay marriage (in fact anything but heterosexual marital sex) should not receive communion.  By this measure the overwhelming majority of American Catholics should not being going to Communion because, at a minimum, they don't accept the Church's teaching on contraception.  - GWC
The Single-Issue Trap | Commonweal magazine: 
by Cathleen Kaveney 

"Voters cannot blind themselves and focus single-mindedly on one issue in the abstract, even if the issue is abortion. They must select among candidates, not among issues—and they are morally required to do so in light of the concrete challenges and possibilities for the common good posed by a specific election at a specific time. This, and not a litmus test of issues, is what forming consciences for faithful citizenship is really all about."

'via Blog this'

Eric Hobsbawm, 1917 – 2012

dotCommonweal » Blog Archive » Eric Hobsbawm, 1917 – 2012: "Eric Hobsbawm, 1917 – 2012 October 1, 2012, 10:14 pm Posted by Matthew Boudway 

In one of those coincidences that heighten—or at least change—one’s experience of a book, I had just started reading Eric Hobsbawm’s How To Change the World: Reflections on Marx and Marxism, when I learned that he died earlier today at the age of ninety-five. Hobsbawm kept working right up until the end of his life: How To Change the World appeared last year; next spring his British publisher will release a new collection of his essays on culture and politics. Hobsbawm’s reputation as a historian was so great that it could coexist securely, if not always happily, with his reputation as an unrepentant Communist. He was a historian’s historian. Conservatives like Niall Ferguson and anti-Communist liberals like Tony Judt revered his three-volume survey of “the long nineteenth century”: The Age of Revolution: 1789-1848, The Age of Capital: 1848-1875, and The Age of Empire: 1874-1914."

'via Blog this'

Argument recap: In search of an ATS compromise : SCOTUSblog

Update:  Alberto Bernabe has collected commentary on the ATS argument at his Torts Blog

Kiobel v. Royal Dutch Shell was re-argued today. The result could immunize corporations which aid tyrannies from liability under the Alien Tort Statute (ATS). In fact it could render the ATS a nullity for non-citizens harmed in other countries despite the law's broad protecive language. The plaintiff's Alien Tort Statute case in Kiobel v. Royal Dutch Shell appears to be in grave jeopardy. There was not much support today at re-argument in the Supreme Court for this claim by a foreign national against a foreign corporation for conduct that occurred entirely outside the United States. Sonia Sotomayor appeared to embrace the approach urged by the European Commission: that the U.S. courts should provide a "forum by necessity" where there was no remedy where the rights violation occurred. - gwc

Argument recap: In search of an ATS compromise : SCOTUSblog:
by Lyle DennistonPaul L. Hoffman, a California lawyer representing Nigerian nationals claiming killing and torture in their homeland, faced claims that his approach would mean no limits on a worldwide pursuit of human rights justice, potentially disrupting diplomatic relations generally. Kathleen M. Sullivan, a New York lawyer for the big foreign oil companies sued in the case and seeking to head off almost all ATS claims, encountered suggestions that her view would cut back even on ATS claims that the Court has already allowed. And U.S. Solicitor General Donald B. Verrilli, Jr., arguing against the Kiobel claim but pleading to keep the courts open to at least some ATS cases, ran up against arguments that he was switching away unpersuasively from the more clear-cut position taken by the government in the past...

Three lawyers ask Supreme Court to Spurn Alien Tort claims act cases | Reuters

Conservative superstar lawyer Paul Clement - who lost the Obamacare case - has teamed up with John Bellinger - a former Bush administration State Department lawyer - to destroy the 1789 Alien Tort Statute (28 USC 1350) which has been used to bring suit for human rights violations against foreign states and corporations.  The U.S. lacks jurisdiction over such claims, they argued in a friend of the court brief in Kiobel v. Royal Dutch Shell.  The conservative Supreme Court justices saw an opportunity and schedled reargument.  The Court appears poised to gut the ATS. - GWC

Insight: Three lawyers ask U.S. Supreme Court: Why here? | Reuters:
 By Rebecca Hamilton 
"For more than three decades survivors of human rights abuses in foreign countries have turned to U.S. federal courts to seek justice. On Monday the U.S. Supreme Court hears a case that could make that impossible."
h/t John Steel - Legal Ethics Forum

'via Blog this'

Robert Francis, the Texan judge closing America's jails | World news | The Observer

Texas Judge Robert Francis

Drug courts - a big trend in criminal justice - championed most prominently not by sympathetic social workers but by Republican who have overcome their tough on crime bent by recognizing that jails are costly and unsuccessful. Rehab reduces recidivism is the message.  - gwc 
Robert Francis, the Texan judge closing America's jails | World news | The Observer:

They are beneficiaries of a revolution in justice sweeping the United States, one with illuminating lessons for Britain. It is a revolt led by hardline conservatives who have declared prison a sign of state failure. They say it is an inefficient use of taxpayers' money when the same people, often damaged by drink, drugs, mental health problems or chaotic backgrounds, return there again and again.

Remarkably, this revolution was unleashed in "hang 'em high" Texas, which prides itself on its toughness and still holds more executions than other states. But instead of building more prisons and jailing ever more people, Texas is now diverting funds to sophisticated rehabilitation programmes to reduce recidivism. Money has been poured into probation, parole and specialist services for addicts, the mentally ill, women and veterans. And it has worked: figures show even violent crime dropping at more than twice the national average, while cutting costs and reducing prison populations.

'via Blog this'

The N.F.L. Lockout and the Modern Economy - NYTimes.com

The NFL locked out the football referees to kill their pension plan, convert it to a 401k, which transfers the risk of loss to labor.  That's the modern way - now that socialism is dead.  The Dean of the school of management at the University of Toronto calls a spade a spade.  - gwc
The N.F.L. Lockout and the Modern Economy - NYTimes.com
by Roger L.Martin

"But why the lockout, and why did the N.F.L. fight so hard? Because the league was fighting a bigger fight, one that is representative of a war beneath the surface of the modern economy — the war between capital and talent. Since the Industrial Revolution, two groups have fought for the spoils of their joint production. On one side is capital — the owners and investors who provide the means of production. On the other side is labor — the workers who turn invested capital into profits. "...

'via Blog this'

Sen. Jim Webb on `givers and takers'

Jim Webb (D-VA), who is not running for re-election, choosing to spend only a single term in the Senate speaks powerfully about veterans benefits at an Obama rally.   An ex-Marine - like his father and son - he served in the Reagan administration then ran for Senate as a Democrat.

Gallup: race is Obama's to lose

Barack Obama has a strong lead over Mitt Romney.  It's the President's race to lose.  Not long ago triumphant Tea Partiers were wearing buttons that said "Is it 2012 yet?".  Talk of the unconstitutionality of `Obamacare' was rife.  What happened?  The Republican primaries, I would say.  That long running TV show drove Romney - a non-ideological center-right politician sharply to the right.  It turned the campaign into what Senator Lindsey Graham (R-SC) called a "demographic election".  The Republican Party's attachment to bible belt white conservatism appears to be its undoing. - GWC

The 47% - Romney in his own words

I have a high regard for Jonathan Bernstein, John Sides, et al - political scientists and commentators whose work I follow on their blogs - A Plain Blog About Politics ((JB) and The Monkey Cage (Sides, et al.).  They have a respect for data which I appreciate for keeping narrative history types like me from getting too far off track.  But the general take they have is gaffes don't matter, they're just indistinguishable blips that don't move the partisans and are too small to identifiably move the undecided - who are, after all what swings elections.  But my quarrel is with identifiable.  You can overdo generalizing from past gaffes.  At some point you have to say that the beat of the heart matters.  It did for John Kerry and I think it will for Mitt Romney.  But Gov. Romney's damage will be worse for being self-inflicted.

I think that John Kerry had an uphill fight (don't switch horses in the middle of the stream - even when the stream was the horrors of the post-invasion Iraq civil war).  But I think that Swift Boating hurt.  So easy to say "oh, another self promoter" who got a Silver Star cause he is a rich guy, a politician.  Here are guys who were there (well, nearby).  And they say he was just a successful opportunist."  I think it had an effect - because the charges were irrebutable (you weren't there).  The Swift Boaters' accusations neutralized the theme Kerry put at the center of his personal message "I am John Kerry and I am reporting for duty".

The Obama campaign obviously thinks the heart matters too.  I agree - the power of the 47% meme is much greater than the Swift Boat meme - because it seems to be Mitt Romney himself speaking from the heart.  Below is the new Obama ad.  Mitt Romney audio, 47%'ers on the screen. - gwc

In the Bronx, Resistance to Prosecuting Stop-and-Frisk Arrests - NYTimes.com

Robert Johnson - the Bronx D.A. - has taken the bold step of putting a spanner in the street patrols that subject residents of public housing projects to a reign of random searches and, often arrest.  Prosecutors often have trouble remembering that the public, not the police, are their clients.  Cops and prosecutors are, naturally, a team.  But the culture of aggressive patrols which characterize life on the street for Black and Hispanic New Yorkers has eroded police and prosecutors respect for basic principles like the need for reasonable suspicion to stop a person and probable cause for arrest.  One of the nastiest tricks is to stop people,  compel them to empty their pockets, then arresting them for open public possession of the marijuana cigaret the unwarranted search forced into the open.  - GWC 
The Times reports:
In the Bronx, Resistance to Prosecuting Stop-and-Frisk Arrests - NYTimes.com:
by Joseph Goldstein

In a significant blow to New York City’s use of stop-and-frisktactics, the Bronx district attorney’s office is no longer prosecuting people who were stopped at public housing projects and arrested for trespassing, unless the arresting officer is interviewed to ensure that the arrest was warranted.

Related

• For Women in Street Stops, Deeper Humiliation (August 7, 2012)

• Street Stops in New York Fall as Unease Over Tactic Grows (August 4, 2012)

• Times Topic: Stop and Frisk Policy - New York City Police Department

Related in Opinion

• Editorial: Stop-and-Frisk in New York City (August 9, 2012)

• Editorial: Stop-and-Frisk in New York City (August 9, 2012)

• Op-Docs: ‘The Scars of Stop-and-Frisk’ (June 12, 2012)

Connect with NYTMetro

Follow us on Twitterand like us on Facebookfor news and conversation.

Readers’ Comments

Share your thoughts.

• Post a Comment »
• Read All Comments (54) »

Prosecutors quietly adopted the policy in July after discovering that many people arrested on charges of criminal trespass at housing projects were innocent, even though police officers had provided written statements to the contrary.

By essentially accusing the police of wrongfully arresting people, the stance taken by Bronx prosecutors is the first known instance in which a district attorney has questioned any segment of arrests resulting from stop-and-frisk tactics.....

'via Blog this'

Working Conditions: The Persistence of Problems in China's Factories - China Real Time Report - WSJ

Police riot squad outside an iPhone factory

China's proletariat - whose dictatorship is the declared form of rule - labors under lamentable conditions.  Despite formal legal protections many work under sweatshop conditions, shortchanged on wages, health, and social insurance by law-breaking companies.  Prominent are those that make our favorite gadgets like iPhones.  I often look at China and see what Gunnar Myrdal called a "soft state" in his classic Asian Drama.  Workers rights are declared in China but are unreliably enforced. - GWC Working Conditions: The Persistence of Problems in China's Factories - China Real Time Report - WSJ: "By Stanley Lubman

A riot involving 2,000 workers at a factory in the northern Chinese city of Taiyuan on Sunday night has once again shined a light on conditions at factories owned by Apple Inc. supplier Foxconn. The cause of the riot appears to have been a fight between workers that somehow escalated into larger-scale unrest. While the precise dynamics that led workers in the factory to run rampant remain unclear, it’s noteworthy that news of the incident comes with Apple recently announcing that advance sales of its iPhone5 have broken all previous records. The success of the iPhone and similar products means competition among companies like Apple and Samsung, both of which rely heavily on Chinese factory supply chains, is likely to increase. This increase in competition, in turn, will crank up pressures in factories whose workers are already struggling under harsh conditions"

'via Blog this'

President Obama at the UN - waving the flag of reason and freedom

Among the editorial board members at the New Jersey Law Journal we debated how to frame the right response to the tragedies following the recent anti-Muslim video by a Los Angeles-based provocateur.  In an editorial called "Blasphemy" we explained: 

Whoever Bakoula and his backers are, our government has done its duty by making it clear that under our law the United States cannot prevent this kind of stupid and malicious provocation and is not responsible for anything, however vile, that private individuals choose to say about someone else's religion. It is true that other free countries do these things differently. Based on the experience of fascism, many European countries prescribe racist or anti-religious speech. So do countries like India, which have a long history of intercommunal violence. Great offense has been given, and diplomacy requires the government to regret what Nakoula has said. But both candor to the world and our national values require us remind the world why it can freely be said here.  But both candor to the world and our national values require us remind the world why it can freely be said here.

President Obama eloquently delivered the message we hoped he would at the UN General Assembly today.  

Beyond Guns & God - the complex politics of the white working class

President Obama once regrettably remarked that some people are bitter and "cling to guns and religion".  Brian, erstwhile owner of Brian's wharf, Hatchet Cove, Friendship, Maine has a decal on his pickup truck that says "Guts, Guns & God - we need all three".  This despite the fact that nobody around town has ever used a gun to ward off an intruder, or protect himself against a police garrison state.  God has helped him find his way free of the sauce, and guts has served him well in a life of fishing - hauling traps and boxes of bait.  But his guns have never bagged more than deer.  Now comes the Public Religion Research Institue (PRRI) to instruct us in a nuanced way on how working class and the college-educated people see god, guns, and guts.   Turns out where you are may be more important than who you are.  = GWC

Prri white working class presentation final from Public Religion Research Institute

Romney: Uninsured Can Go To The Emergency Room (VIDEO) | TPMDC

Romney: Uninsured Can Go To The Emergency Room (VIDEO) | TPMDC: 'via Blog this'

Rory Stewart's sorrowful assessment of the Afghanistan project | xpostfactoid

Rory Stewart's sorrowful assessment of the Afghanistan project | xpostfactoid:
by Rory StewartRory Stewart, the man who walked across central Afghanistan in winter, and later urged light-touch, sustainable engagement underpinned by modest expectations, is back with a sorrowful assessment of the West's options as the training mission collapses:

"In the absence of “victory”, three alternative strategies have been proposed: training the Afghan security forces, political settlement with the Taliban and a regional solution. But training Afghan forces, which cost $12bn in 2010 alone, will not guarantee their future loyalty to a Kabul government. Two years and many regional conferences have passed since the formation of the Afghan Higher Peace council, and the clear Nato endorsement of reconciliation: but there is no sign that insurgents, the Kabul government or its neighbours will reach a deal, or feel much desire so to do. So there is no military solution, and no political solution either. Nor will there be before the troops leave. We will have to deal for decades with a troubled Afghanistan, which is not likely in my lifetime to be as wealthy as Libya, as effectively governed as Iraq, as educated as Syria, or as institutionally mature as Pakistan. "

'via Blog this'

A record to run on | xpostfactoid

Obama's message is jelling | xpostfactoid:
by Andrew Sprung

We often hear that Romney has a challenger's advantage in a down economy. He can stick to a simple message: the economy is broken and Obama can't fix it -- I can.  And the Romney campaign has indicated that he regards offering detail as a disadvantage and distraction. Don't say what you'd cut; don't say what tax loopholes you'd close or what "simple, effective" regulation would look like; just offer yourself as a problem solver who "knows how jobs come and how they go."
Such a strategy could work if the economic news is bad enough. But there's a flip side. Obama, unlike Romney, has a record to run on -- a record of engagement with national problems that he doesn't have to run away from, as Romney does from his signature achievement as governor of Massachusetts. And now, Obama is running on that record. Here he is at UVA on Aug. 29, combating the notion that he failed to bring hope and change: 

'via Blog this'

Ezra Klein's unconvincing theory that Obama misunderstands (or misrepresents) "change" | xpostfactoid

Ezra Klein's unconvincing theory that Obama misunderstands (or misrepresents) "change" | xpostfactoid:

"Maybe not as far forward as in 2009-10. But as James Fallows argued at length, reaping the harvest of the potentially transformative legislation of those two years depends on Obama's reelection. The ultimate success of the ACA and Dodd-Frank depend on a long hard slog of implementation. Meaningful electoral reform depends on the next Supreme Court appointments. Continued effective environmental regulation depends on not letting in the dereg wrecking crew -- and that goes for virtually all regulatory channels. And as Obama says, he is holding the line against further rollback of women's rights. " 'via Blog this'

When Hitler learned about the secret Romney video

All hell broke loose.  For any reader who is not a political junkie the target is not Romey but Jennifer Rubin - the conservative attack schnauzer who writes the Right Turn column for the Washington Post. - GWC

Democrats for Nixon

That 47% number has a long pedigree in the politics of resentment. - GWC

If We’re Lucky, Romney’s Misguided Comments Will Remind The Public It Likes Government More Than It Realizes | The New Republic

Jonathan Cohn exlains that there are two key issues: first - who pays taxes and who receives government benefits.
Taxes: payroll taxes, and state sales  taxes are generally regressive: everyone pays the same sales tax, and Social Security (FICA) stops at about $105,000.  It is only income tax that is somewhat progressive.  And when it comes to that people who live on investment income pay low federal income taxes.  High salary earners (yes lawyers and mid-level executives) pay a lot more (around 25% like Obama and Biden) .
Second who receives government benefits and how costly are they?  Almost everyone (good), and how costly?  Well the poor are getting less and less (surprise).  But health care costs are going up.  That's a legitimate debate. Some (like me) think Medicare (single-payer) is the most efficient and desirable.  But that will leaves the questions of how to control costs - limit benefits, reduce compensation, or force systemic cost reductions (e.g. - decide based on evidence that some tests/treatments/medicines will not be covered.

- GWC
If We’re Lucky, Romney’s Misguided Comments Will Remind The Public It Likes Government More Than It Realizes | The New Republic:
by Jonathan Cohn

"Will Moocherpalooza have an impact on the presidential campaign? It might. Mitt Romney, Paul Ryan and their allies have been decrying the “entitlement society” and supposedly low number of Americans paying federal taxes for some time now. But the specific language and circumstances of Romney’s comments at a May fundraiser, first reported in Mother Jones on Monday, may capture the attention of average Americans in a way those previous speeches and writings did not. "

'via Blog this'

Trial and Error - ACLU Report on Prosecutorial Trial Error in New Jersey

A careful study of prosecutorial conduct by the New Jersey ACLU reaches some unsurprising conclusions: that [a]s general rule, prosecutors in New Jersey deserve praise for avoiding repeated error in the overwhelming majority of cases. But there is nonetheless significant repeated prosecutorial error which requires "policies that provide for training, supervision and discipline."  That "summation errors...continue to occur with “numbing frequency.” And that  courts must develop policies — including publicly naming offending prosecutors and reporting them to appropriate  bodies — that will ensure that prosecutorial error happens less often. 
The ACLU authors (including Rutgers law professor George C. Thomas, III) notably conclude, in their most dramatic recommendation that:

A system of mandatory reporting of all findings of prosecutorial error to the Office of the Attorney General would create a database to track prosecutors with repeated violations. 

Under this model, the Office of the Attorney General would be required to forward a complaint to the appropriate district ethics board whenever error contributed to a reversal of a conviction and whenever a prosecutor had been cited for a subsequent finding of error.

Trial and Error - A Comprehensive Study of Prosecutorial Conduct in New Jersey - ACLU of NJ
by Alexander Shalom and Prof. George Thomas

from the Executive Summary

As a whole, prosecutors understand the unique role they play in the administration of justice and take their responsibilities seriously. They seek diligently to avoid errors that could undermine both the integrity of the criminal justice system and the validity of their hard-fought convictions. They proceed confident in the knowledge that they seek not only convictions, but justice, and often without competitive remuneration.

When prosecutors err, and transgress rules established for their conduct, they generally learn from their mistakes and avoid repeated missteps. However, a small group of prosecutors commits multiple errors without seeming to learn from those missteps. This American Civil Liberties Union of New Jersey study aims to survey comprehensively prosecutorial error in New Jersey by examining the prevalence of error and determining which errors occur most frequently.

After compiling the foundational data, the study’s authors quantitatively analyzed the data’s meaning. Specifically, researchers examined the extent of inter-county disparities among rates of error, correlations between error and experience and prevalence of individual prosecutors with repeated instances of error.  The report examines the contexts in which prosecutors were cited for error on multiple occasions and explores the costs of prosecutorial error for criminal defendants,  for society and for individual prosecutors.

'via Blog this'

Romney: Obama Voters Pay No Taxes - Video - Mother Jones/TPM

Mitt Romney, born on third base, thinks he hit a triple - in Ann Richards memorable phrase.  Think he doesn't pay enough taxes?  Romney thinks Obama's voters are people who pay no income taxes and refuse to take responsibility, depend on government.  He'll spend a good deal of time explaining just what he meant in this fundraiser talk which will surely be heard in Democratic attack ads.  David Corn broke the story in Mother Jones, where there are lots more video clips = and more to come.  Josh Marshall reports. - GWC
Devastating | TPM Editors Blog: 'via Blog this'

Kevin Michels, "What Conflicts Can Be Waived? A Unified Understanding of Competence and Consent"

Legal Ethics Forum: Kevin Michels, "What Conflicts Can Be Waived? A Unified Understanding of Competence and Consent":
This article by NJ Ethics treatise author Kevin Michels  looks promising.  How do you tell if a conflict is "consentable", i.e. permissible despite the conflict of interest?  I have been groping toward an answer to this problem with what I cal "the distraction test".  If something is distracting you from undivided loyalty to your client you must ask if there is a conflict requiring consent.  But how must distraction is too much?  Michels proposes: "An informed conflict waiver must be rejected as incompetent if limitations on the means or procedures by which the attorney pursues the matter caused by the conflict of interest are likely to defeat the client’s objectives for the representation. " - GWC

h/t John Steele at Legal Ethics Forum
'via Blog this'

Pensylvania: Gideon fail. New Jersey: Gideon Fulfilled

The New Jersey Law Journal Editorial Board, commenting on the travesty that is Pennsylvania’s county-based Public Defender system, observes that the joint state government commission that studied the problem failed to point to the solution next door in New Jersey where the 550 lawyer statewide Office of the Public Defender has maintained independence and competence. That was most dramatically seen in the 25 years of capital defense from 1982 – 2007.  The capital defense unit tried over 200 cases.  Over 60 death sentences were handed down.  Yet no one had been executed when the legislature in 2007 replaced capital punishment with life without parole. - GWC

Gideon v. Wainwright and its progeny are the font of contemporary jurisprudence on the right to a fair trial. But this right too often has been honored in the breach and courts have struggled to implement the constitutional mandate. The National Right to Counsel Committee’s comprehensive 2009 report, “Justice Denied,” shows “there is uncontroverted evidence that funding still remains woefully inadequate and is deteriorating in the current economic difficulties that confront the nation. Because of insufficient funding, in much of the country, training, salaries, supervision, and staffing of public defender programs are unacceptable for a country that values the rule of law”.Unfortunately, one of the most dramatic instances of that failure is in our neighboring state, Pennsylvania. It is the only state in the country which does not provide state funding of criminal defense for the indigent. Indigent defense is left to the counties. A thorough report by a committee of the Pennsylvania Supreme Court concluded in 2003 that “indigent criminal defendants are not assured of receiving adequate, effective representation.” Nothing changed. But the exposure of the dreadful corruption of juvenile justice by two now-jailed judges in Luzerne County prompted the Legislature to commission a new study. Its December 2011 report, “A Constitutional Default,” concluded that the “Kids for Cash scandal showed how failure to maintain professional independence of defense attorneys from political interference by the judiciary can create systemic injustice [and that] Pennsylvania’s overly localized indigent defense system can lead to inadequate supervision and training, which in turn can lead to a shocking deterioration in professional standards….…[In New Jersey the statewide Office of the Public Defender] demonstrated the necessity of, and provided key support for, our Supreme Court’s unparalleled proportionality review of capital cases. The OPD’s participation from beginning to end in nearly every capital case made possible our Supreme Court’s commitment that, as Justice John Wallace Jr. observed, “[w]hen life hangs in the balance, error has no place.

  'via Blog this'

Other Men's Flowers and the Art of Persuasion - NYTimes.com

We read Cicero in 3rd year of high school.  Everyone read Cicero because everyone studied Latin. We learned hyperbole, apostrophe, ad hominem attack, and many more modes of argument - as we dissected Cicero's First Oration against the conspiracy of Lucius Catilina in 63 B.C. It begins

WHEN, 1 O Catiline, do you mean to cease abusing our patience? How long is that madness of yours still to mock us? When is there to be an end of that unbridled audacity of yours, swaggering about as it does now? Do not the nightly guards placed on the Palatine Hill—do not the watches posted throughout the city—does not the alarm of the people, and the union of all good men—does not the precaution taken of assembling the senate in this most defensible place—do not the looks and countenances of this venerable body here present, have any effect upon you? Do you not feel that your plans are detected? Do you not see that your conspiracy is already arrested and rendered powerless by the knowledge which every one here possesses of it? What is there that you did last night, what the night before—where is it that you were—who was there that you summoned to meet you—what design was there which was adopted by you, with which you think that any one of us is unacquainted?

Other Men's Flowers and the Art of Persuasion - NYTimes.com:
by Sam Leith
 "Rhetoric, simply put, is the study of how language works to persuade. So any writer seeking to make a case, or hold a reader’s attention — which is more or less any writer not in the service of the Democratic People’s Republic of Korea — has something to learn from it. If the classical orators have modern counterparts in the realm of the written word, pre-eminent among those counterparts are the authors of opinion pieces. Here is persuasion overt, persuasion front and center. The techniques that served Cicero will just as effectively serve modern writers of opinion"

'via Blog this'

V.P. Biden at Shanksville 9/11 Memorial

A week before Christmas 1972 Vice President Biden's wife and daughter were killed when her car pulled out of a parking lot into the path of a truck.  His two young sons nearly died.  That terrible loss informs his very thoughtful remarks today at the Shanksville 9/11 Memorial. - GWC

The Other Side Of Joe Biden | TPM Editors Blog:

THE VICE PRESIDENT: Thank you, Mr. Secretary. Superintendent — Jeff, you’ve done a remarkable job here. And the thing I notice when I speak to you about is you’re invested in this place. It sort of has a — sort of stolen a piece of your heart. And that’s why I’m confident that all that you plan will happen.

Patrick, you’re keeping the flame alive, and keeping the families together is — from my experience, I imagine you all find solace in seeing one another. There’s nothing like being able to talk with someone who you know understands.

And it’s an honor — it’s a genuine honor to be back here today. But like all of the families, we wish we weren’t here. We wish we didn’t have to be here. We wish we didn’t have to commemorate any of this. And it’s a bittersweet moment for the entire nation, for all of the country, but particularly for those family members gathered here today.

Last year, the nation and all of your family members that are here commemorated the 10th anniversary of the heroic acts that gave definition to what has made America such a truly exceptional place — the individual acts of heroism of ordinary people in moments that could not have been contemplated, but yet were initiated.

I also know from my own experience that today is just as momentous a day for all of you, just as momentous a day in your life, for each of your families, as every September 11th has been, regardless of the anniversary. For no matter how many anniversaries you experience, for at least an instant, the terror of that moment returns; the lingering echo of that phone call; that sense of total disbelief that envelops you, where you feel like you’re being sucked into a black hole in the middle of your chest.

My hope for you all is that as every year passes, the depth of your pain recedes and you find comfort, as I have, genuine comfort in recalling his smile, her laugh, their touch. And I hope you’re as certain as I am that she can see what a wonderful man her son has turned out to be, grown up to be; that he knows everything that your daughter has achieved, and that he can hear, and she can hear how her mom still talks about her, the day he scored the winning touchdown, how bright and beautiful she was on that graduation day, and know that he knows what a beautiful child the daughter he never got to see has turned out to be, and how much she reminds you of him. For I know you see your wife every time you see her smile on your child’s face. You remember your daughter every time you hear laughter coming from her brother’s lips. And you remember your husband every time your son just touches your hand.

I also hope — I also hope it continues to give you some solace knowing that this nation, all these people gathered here today, who are not family members, all your neighbors, that they’ve not forgotten. They’ve not forgotten the heroism of your husbands, wives, sons, daughters, mothers, fathers. And that what they did for this country is still etched in the minds of not only you, but millions of Americans, forever. That’s why it’s so important that this memorial be preserved and go on for our children and our grandchildren, and our great-grandchildren, and our great-great-grandchildren — because it is what makes it so exceptional. And I think they all appreciate, as I do, more than they can tell you, the incredible bravery your family members showed on that day.

I said last year my mom used to have an expression. She’d say, Joey, bravery resides in every heart, and someday it will be summoned. It’s remarkable — remarkable — how it was not only summoned, but acted on.

Today we stand on this hallowed ground, a place made sacred by the heroism and sacrifice of the passengers and the crew of Flight 93. And it’s as if the flowers, as I walked here, as if the flowers were giving testament to how sacred this ground is.

My guess — and obviously it’s only a guess; no two losses are the same. But my guess is you’re living this moment that Yeats only wrote about, when he wrote, pray I will and sing I must, but yet I weep. Pray I will, sing I must, but yet I weep.

My personal prayer for all of you is that in every succeeding year, you’re able to sing more than you weep. And may God truly bless you and bless the souls of those 40 incredible people who rest in this ground.

Amen.

'via Blog this'

Patent wars: Apple kills Star Trek

Thanks to Prawfsblawg for the link to this video demonstrating potential consequences of Apple winning the big patent infringement suit against Samsung.  Apple alleged that the bells and whistles of the Google Android touch screen infringed Apple patents.

Cardinal Timothy Dolan's Benedictions At RNC And DNC (FULL TEXT)

Diplomatic - the art of the political prayer.  The Republicans were urge to remember huddled masses yearning to be free, and the Democrats to respect the laws of nature and to protect those waiting to be born.  Archbishop Dolan threaded the needle, preserving his claim that his campaign for religious freedom (especially the no coverage for contraception lawsuit) is principled not partisan.  I, however, would bet an uncomfortable sum on the proposition that he votes Republican. - GWC
Cardinal Timothy Dolan's Benedictions At RNC And DNC (FULL TEXT)

'via Blog this'

DNC 2012: Obama’s speech to the Democratic National Convention (Full transcript) - The Washington Post

DNC 2012: Obama’s speech to the Democratic National Convention (Full transcript) - The Washington Post:

'via Blog this'

Inside Bill Clinton's Epic Convention Speech

Inside Bill Clinton's Epic Convention Speech: 'via Blog this'

The former president's brought down the house with a speech twice as long as planned. He made a few changes from his prepared remarks: You can see the original speech in black below, with deletions in red and additions in blue.

Why Bill Clinton's Speeches Succeed - James Fallows - The Atlantic

Why Bill Clinton's Speeches Succeed - James Fallows - The Atlantic:
Because he treats listeners as if they are smart.

That is the significance of "They want us to think" and "The strongest argument is" and "The arithmetic says one of three things must happen" and even "Now listen to me here, this is important." He is showing that he understands the many layers of logic and evidence and positioning and emotion that go into political discussion -- and, more important, he takes for granted that listeners can too.

The main other place you hear discussion based on the same assumption that people of any background, education level, or funny-sounding accent can understand sophisticated back-and-forth of argument and counter-claim is sports-talk radio. ("I understand the concern about Strasburg's arm. But ... ") You hear insults and disagreements and put-downs on sports-talk discussions. You rarely hear the kind of deliberate condescension, the unconcealable effort as if talking to slow learners, of many political "authorities" addressing the unwashed.

It's the difference between clarifying, and over-simplifying. Clarification, with the confidence that people can understand the back and forth, lies behind passages like this, which characterized most of the speech. Emphasis on the parts that show his approach being applied:

We Democrats, we think the country works better with a strong middle class, with real opportunities for poor folks to work their way into it, with a relentless focus on the future, with business and government actually working together to promote growth and broadly shared prosperity. You see, we believe that "We're all in this together" is a far better philosophy than "You're on your own."

'via Blog this'