Bishop: Synod questionnaire shows most reject teaching on contraceptives | National Catholic Reporter

"The train left the station long ago" is the report of St. Petersburg, Florida Bishop Robert Lynch.  Catholics pay little heed to Church teaching on birth control - and don't have much to say for its approach to divorced Catholics, people living together, and same-sex couples.  This will come as no surprise to conservative Catholic legal theorists like Doug Sisk at St. Thomas (Minneapolis) who appear to have thrown in the towel on stopping the secular juggernaut which conflates religion with conscience.  Abandoning the conservative critique of rights as irresponsibility he has now positioned himself in the debate over the contraception mandate as a defender of diversity: the right of the minority to adhere to its countercultural norms.  Fine with me - so long as they don't establish their reactionary religious norms and impose them on others: which is what the contraceptive mandate objectors seek to do, as Nelson Tebbe, et al. argue.
 - GWC
Bishop: Synod questionnaire shows most reject teaching on contraceptives | National Catholic Reporter:

In an unusually blunt report to the Vatican, Bishop Robert Lynch of St. Petersburg, Fla., said that even most regular churchgoing Catholics in his diocese find the church's teaching on artificial contraception no longer relevant.
"On the matter of artificial contraception, the responses might be characterized by saying, 'That train left the station long ago,' " he wrote in a Feb. 7 blog about his report. "Catholics have made up their minds and the sensus fidelium [the sense of the faithful] suggests the rejection of church teaching on this subject."
In the blog on his diocesan website, Lynch said more than 6,800 Catholics in the diocese responded to a Vatican request worldwide for local church feedback on pastoral issues of marriage and family life, in preparation for October's special synod on that topic. He said he sent his report on the results to the Vatican in mid-January.
Most of the respondents agreed with church teaching that marriage -- or at least sacramental marriage -- is strictly a union of one man and one woman, he said, but at the same time many had serious problems with the church's pastoral approach to divorced and remarried couples and to same-sex couples.
He said they also had issues concerning the way the church deals pastorally with young couples cohabiting before marriage, a phenomenon that has grown significantly in recent years.

'via Blog this'

Case Tests Restraints on Lawyers Quoting Judges' Accolades in Ads | New Jersey Law Journal

Newark lawyer Andrew Dwyer

Andrew Dwyer - a plaintiff's employment law practitioner - is by all accounts (including a recent adversary with whom I have spoken) a fine lawyer.  New Jersey law provides for fee shifting in discrimination cases.  Where he has succeeded judges have made findings regarding Dwyer's skill and performance.  He has advertised those judicial statements as facts - which they are.

But according to the Committee on Attorney Advertising of the New Jersey Supreme Court they are misleading statements that run afoul the Court's Advertising Guideline 3 which the Committee adopted.  It provides:

Attorney Advertisements: Use of Quotations or Excerpts From Judicial Opinions About  the Legal Abilities of an Attorney
An Attorney or law firm may not include, on a website or other advertisement, a
quotation or excerpt from a court opinion (oral or written) about the attorney’s abilities or legal services. An attorney may, however, present the full text of opinions, including those that discuss the attorney’s legal abilities, on a website or other advertisement. 

In the Committee's view the statement while factually accurate as reports are misleading regarding their meaning.  The statements are findings of fact - not judicial endorsements of a an attorney.  To make such an endorsement would be improper for a judge and Dwyer's use of them gives a misleading impression.  Dwyer challenged the Guideline in federal courtas a violation of his First Amendment right to commercial speech.  The disciplinary stricture was upheld last year in an opinion by by District Judge Faith Hochberg who granted summary judgment to the state.  Dwyer has now taken the matter to the Third Circuit Court of Appeals. - GWC

Case Tests Restraints on Lawyers Quoting Judges' Accolades in Ads | New Jersey Law Journal:
by Mary Pat Gallagher

A federal appeals court is pondering whether New Jersey's gag on lawyers using complimentary quotes from judges to advertise their services constitutes an illegal restraint on speech.In a case argued Feb. 18 to the Third Circuit, Newark employment lawyer Andrew Dwyer challenges the constitutionality of Attorney Advertising Guideline 3, adopted in response to his posting on his website of laudatory comments about him from two court opinions, along with the judges' names.In one, Judge Jose Fuentes, then a state judge in Hudson County but now a state appellate judge, called Dwyer "one of the most exceptional lawyers I've had the pleasure of appearing before me."He described Dwyer as "tenacious, professional in his presentation to the Court, a bit too exuberant at times, certainly passionate about his position," and beyond fault or question as to his zeal, loyalty to his client and his intellect.The other quote, from Union County Judge William Wertheimer said Dwyer achieved a "spectacular result" for his client and termed him a "fierce, if sometimes not disinterested advocate."In April 2008, Wertheimer wrote to Dwyer, asking him remove the quote, but Dwyer refused, leading Assignment Judge Walter Barisonek to contact the Committee on Attorney Advertising.The panel spent several years formulating the guideline, with input from Dwyer. As adopted May 24, 2012, bars lawyers and law firms from using quotes or excerpts from oral or written opinions about the lawyer's abilities or services on a website or other advertisement. Only the full text of the opinion with the comments can be presented..Dwyer brought suit to block the guideline just days before its June 1, 2012, effective date on the basis that it would infringe on free speech.U.S. District Judge Faith Hochberg in Newark dismissed the case last June. In her view, the guideline was not a ban on speech but merely a regulation requiring additional disclosure—i.e. the full opinion, to provide context.Without it, "judicial quotations relating to an attorney's abilities could easily be misconstrued as improper judicial endorsement of an attorney, thereby threatening the integrity of the judicial system," she wrote.

Read more: http://www.njlawjournal.com/id=1202644134049/Case-Tests-Restraints-on-Lawyers--Quoting-Judges%27-Accolades-in-Ads#ixzz2uF9UqMEa

'via Blog this'

Legal Ethics Forum: "Entry-level Law Firm Recruiting Remains Mostly Flat"

Legal Ethics Forum: "Entry-level Law Firm Recruiting Remains Mostly Flat":

Details from NALP. Excerpt:

In the fall of 2013, for the fifth year in a row, law firms continued to engage in limited entry-level hiring. With the large law firm business model still facing significant challenges five years after the Great Recession, recruiting volumes by U.S. law firms on the campuses of U.S. law schools remained mostly flat during the late summer and early fall of 2013 compared with recruiting activity the year before. There were variations by region and by city, but overall law firms continued to exhibit caution in recruiting new associates. These are among the key findings reported in NALP's just released Perspectives on Fall 2013 Law Student Recruiting, an annual report based on NALP surveys on selected aspects of fall recruitment activity and the experiences of both legal employers and law schools. A total of 123 U.S. law schools and more than 400 law firms provided information in response to NALP’s surveys on fall 2013 law student recruiting activities.

'via Blog this'

Asylum Fraud in Chinatown: An Industry of Lies - NYTimes.com

FBI agents outside a Chinatown, NY law office.

Chinese seeking to stay in New York have been aided by people who sought to help them get asylum.  To do that they have to prove a likelihood persecution if they returned.  Aiding false applications became a lucrative business in Chinatown, New York.  Unfortunately employees of ten law firms were among those indicted in a federal crackdown. - GWC 
Asylum Fraud in Chinatown: An Industry of Lies - NYTimes.com:
by Kirk Semple Joseph Goldstein and  Jeffrey E. Singer

"A Chinese woman walked into a law office in New York’s Chinatown and asked to see her lawyer. She had applied for asylum, claiming that she had been forced to get an abortion in China to comply with the country’s family-planning laws, and she was anxious about her coming interview with immigration officials.She had good reason to be worried: Her claim, invented by her lawyer’s associates, was false.But the lawyer, John Wang, told her to relax. The process, he said, was straightforward, and as long as she memorized a few details, everything would be fine. “You are making yourself nervous,” he said in Mandarin. “All you would be asked is the same few rubbish questions.”“Just make it up,” the lawyer added.The conversation, in December 2010, was secretly recorded by federal officials conducting a wide investigation of immigration fraud in New York’s Chinese population. The inquiry has led to the prosecution of at least 30 people — lawyers (including Mr. Wang), paralegals, interpreters and even an employee of a church, who is on trial, accused of coaching asylum applicants in basic tenets of Christianity to prop up their claims of religious persecution. All were charged with helping hundreds of Chinese immigrants apply for asylum using false tales of persecution."

'via Blog this'

Christie’s Lawyer in Bridge Scandal Quits Case Over Tolls - Bloomberg

Randy Mastro - Chris Christie's $650/hour lawyer (really? whose money is going to that?)  -has announced that he will no longer personally defend the Port Authority toll increase challenge which he has til now been handling for the bi-state agency.  I don't see what good that does if his firm Gibson Dunn continues the representation.  If Mastro is conflicted so is his firm.  He and the firm should quit both representations.
Frankly the whole thing stinks.  I don't know what Bridgegate will turn out to have been about.  But the soft underbelly of the Christie operation has been exposed.  The state government, like the Port Authority, is a pork barrel operation for them.  They can steer state and Port Authority contracts to themselves, their friends, and clients. - gwc
Christie’s Lawyer in Bridge Scandal Quits Case Over Tolls - Bloomberg:

The lawyer representing New Jersey Governor Chris Christie’s office in probes over deliberate traffic jams at the George Washington Bridge withdrew from unrelated litigation involving the span’s operator, a move that may have avoided a potential conflict of interest.
Randy Mastro leads a legal team coordinating Christie’s response to probes by state lawmakers and U.S. prosecutors into the closing of access lanes to the bridge from Sept. 9 to 12 in Fort Lee, New Jersey. The borough’s Democratic mayor has said allies of Christie, a Republican, created the gridlock to punish him for not endorsing the governor’s re-election last fall.
Mastro, 57, will no longer defend the Port Authority of New York and New Jersey, which operates the bridge, against separate claims that it illegally raised tolls for the span and other facilities in 2011, according to a Feb. 20 filing in Manhattan federal court. The filing gave no reason for his withdrawal.

'via Blog this'

Our Secular Future | America Magazine

The conservative religious magazine First Things - founded by Fr. Richard John Neuhaus - is a prime venue for conservative Catholics.  They are certain that the Church's most conservative stands (e.g..the ban on artificial contraception, adherence to heterosexual-only marriage) are at the center of Christian belief.  I find that proposition baseless.  But here is an offering from that quarter.  Personally I think it is...well, just read it. - gwc
Our Secular Future | America Magazine:
by R.B. Reno  - Editor, First Things

The Heart of the Conflict

To be blunt: Religious people who hold traditional values are in the way of what many powerful people want. We are in the way of widespread acceptance of abortion, unrestricted embryonic stem cell research and experimentation with fetal tissue. We are in the way of doctor-assisted suicide, euthanasia and the mercy-killing of genetically defective infants. We are in the way of new reproductive technologies, which will become more important as our society makes sex more sterile. We are in the way of gay rights and the redefinition of marriage. We are in the way of the nones and the engaged progressives and their larger goal of deconstructing traditional moral limits so that they can be reconstructed in accord with their vision of the future.
Traditional religious people are in the way, and many of our fellow Americans are doing their best to push us out of the way. The outspoken among us have been largely expelled from higher education and other institutions of cultural authority. This exclusion should not surprise us. Traditional Christianity and churchgoing no longer define the social consensus in the United States. The Protestant era is over, and in its demise we have not seen the Catholic moment that the Rev. Richard John Neuhaus, founder of First Things, hoped for. Instead, we seem to be heading into the secular moment, which is almost certain to find ways to redefine religious liberty, or at least try.

'via Blog this'

New Jersey State Bar Association - New Jersey State Bar Association resolution calls for Chief Justice Rabner’s renomination

New Jersey State Bar Association - New Jersey State Bar Association resolution calls for Chief Justice Rabner’s renomination:
NEW BRUNSWICK: The New Jersey State Bar Association supports the renomination of Chief Justice Stuart Rabner. 
     
In a resolution released today, the state’s largest group of legal professionals said Rabner has unquestionably demonstrated the knowledge and decorum to continue to serve as head of the state’s highest court. His scholarship, fair administration of the courts, establishment of programs to help residents resolve conflicts, and outreach to the community has distinguished the judicial branch. 
 
Further, the resolution states it would be an “unprecedented intrusion of politics into the third co-equal branch, and continued evidence of attempts to undermine the independence of that branch, to decline the reappointment of the sitting Chief Justice, the person entrusted to lead the judicial branch of government, as no chief justice has been denied tenure under our current constitution.” 
 
The text of the resolution is below. Click here (PDF) to download the pdf.

NJSBA Resolution
 
A resolution expressing the position of the New Jersey State Bar Association in support of the renomination of Supreme Court Chief Justice Stuart Rabner
 
WHEREAS, it is the mission of the New Jersey State Bar Association to serve as the voice of New Jersey attorneys to other organizations, governmental entities and the public, with regard to the law, the legal system and the legal profession, and
 
WHEREAS, Chief Justice Stuart Rabner was nominated and earned confirmation to the position in June 2007 and was sworn-in as Chief Justice that month, and 
 
WHEREAS, Chief Justice Stuart Rabner has unquestionably demonstrated the knowledge and decorum to serve, and has, in fact, served on the Supreme Court with distinction, as is obvious through his thoughtful opinions, his fair administration of the Courts, his establishment of programs aimed at resolving New Jerseyans’ conflicts before they reach the courts, and his outreach to the community to educate citizens about the courts and respond to the needs of users of the courts, and
 
WHEREAS, during his tenure on the Supreme Court, Chief Justice Rabner has authored dozens of opinions that exhibit intellectual rigor, clear reasoning and an unbiased commitment to improving New Jersey law, and 
 
WHEREAS, during his tenure, Chief Justice Rabner has implemented significant administrative and institutional reforms aimed at outreach to the public and the bar, including: commencing a foreclosure mediation program aimed at expeditiously resolving the many foreclosure actions filed in the wake of the recent economic recession; expanding the Judiciary’s website to enable the public easier access to “self-help” information about court filing requirements and procedures; launching the Benchmarks Civics Program that makes volunteer judges and lawyers available to address community organizations; implementing a “one-judge/one school” program that allows judges to talk to school children about the court system; appointing women and minority judges and lawyers to leadership positions within the Judiciary and its many Supreme Court-appointed committees; and being responsive to the concerns of members of the bar including frequent meetings with organized bar leaders and speaking at bar functions, and
 
WHEREAS, the independence and integrity of our judges and an independent judicial branch, to whom New Jersey residents can confidently turn to resolve their differences in a fair and equitable manner, is one of the crowning achievements of this state, and is the foundation upon which the well-deserved reputation of New Jersey’s court system is grounded, and
 
WHEREAS, it would be an unprecedented intrusion of politics into the third co-equal branch, and continued evidence of attempts to undermine the independence of that branch, to decline the reappointment of the sitting Chief Justice, the person entrusted to lead the judicial branch of government, as no chief justice has been denied tenure under our current constitution, and
 
NOW, THEREFORE, BE IT RESOLVED that New Jersey State Bar Association calls for the reappointment of Chief Justice Stuart Rabner, who throughout his tenure by his leadership, scholarship, sound judgment and demeanor has distinguished himself and the Supreme Court of New Jersey. 
 
I, John E. Keefe Jr., Secretary of the New Jersey State Bar Association, do hereby certify that the above is a full, true and correct copy of a resolution unanimously passed by the Board of Trustees at a regularly scheduled meeting on Jan. 24, 2014. 

In witness whereof, I have hereto set my hand as such Secretary and affix the corporate seal of the New Jersey State Bar Association on this fourteenth day of February, 2014.

'via Blog this'

Editorial: N.J. archbishop's retirement home an assault on parishioners' goodwill | National Catholic Reporter

Newark Archbishop John Myers may be headed for hot water at the Vatican where humility not majesty is the order of the day.  - GWC

Editorial: N.J. archbishop's retirement home an assault on parishioners' goodwill | National Catholic Reporter:

Newark, N.J., Archbishop John Myers' decision to expand his summer residence cum retirement home -- already a model of luxury with five bedrooms, three full bathrooms, an elevator, a three-car garage and a large outdoor pool and valued at nearly $800,000 -- is nothing short of an assault on the goodwill and trust of the people of God.The 3,000-square-foot addition, at a minimum cost of $500,000 (it is reported that furnishings, architectural costs and landscaping are not included in that figure), will bring the total area of the residence to 7,400 square feet and the total value to at least $1.3 million.The addition will house an indoor exercise pool, a hot tub, three fireplaces, a library, another elevator and a "gallery" to provide a panoramic view of the grounds below, according to a report in The Star-Ledger of Newark.Gasp. Yes, a gasp is appropriate. The arrogance and self-importance required to undertake such a project on one's own behalf and funded, at least partially, with the proceeds from the sale of other archdiocesan-owned property is breathtaking.

'via Blog this'

The Stimulus Tragedy - NYTimes.com

The nation's budget and your household budget do not operate by the same rules.  Thinking that it does has buttressed deficit reduction mantras that have retarded, not spurred recovery. Krugman explains how he was right, Obama mostly right, and the deficit hawks utterly, tragically wrong. - GWC
The Stimulus Tragedy - NYTimes.com:
by Paul Krugman

Five years have passed since President Obama signed the American Recovery and Reinvestment Act — the “stimulus” — into law. With the passage of time, it has become clear that the act did a vast amount of good. It helped end the economy’s plunge; it created or saved millions of jobs; it left behind an important legacy of public and private investment.

It was also a political disaster. And the consequences of that political disaster — the perception that stimulus failed — have haunted economic policy ever since.

Let’s start with the good the stimulus did.

 for the complete article click HERE

'via Blog this'

What courses should law students take? Harvard Survey of Law Firms

Harvard Law School commissioned a survey of lawyers at "big law" firms that hire Harvard Law grads.  They asked what courses would you recommend.  Not much surprising.  Basically "take classes in what we do".  No pitch for clinics, etc. Recommendations are on a scale to 1 to 5.  - GWC

Business Organization courses offered at Harvard.

Non Business Organization courses offered at Harvard.

Japanese bishops: Vatican mindset doesn't fit Asian church | National Catholic Reporter

Ignorance is bliss for Japanese Catholics, say their bishops in a report to the Vatican.  The Church there is not "obsessed" with sexual matters.  No crisis of conscience over contraception there.  It's the norm.  So get with it, the Japanese bishops say to the Vatican in preparation for the upcoming Synod on the family.  It's going to be an interesting meeting. - GWC
Japanese bishops: Vatican mindset doesn't fit Asian church | National Catholic Reporter:
by Joshua J. McElwee

In response to a question on how Japanese Catholics accept the church's teachings prohibiting artificial contraception, for example, the Japanese [bishops] state: "Contemporary Catholics are either indifferent to or unaware of the teaching of the Church."
"Most Catholics in Japan have not heard of Humanae vitae," the Japanese state, referring to Pope Paul VI's encyclical letter banning the practice. "If they have, they probably do not make it an important part of their lives. Social and cultural values as well as financial considerations are more important."
"There is a big gap between the Vatican and reality," they continue. "Condom use is recommended in sex education classes in schools."
Responding as to whether Japanese Catholics promote so-called natural methods of birth control, the Japanese respond: "There are some attempts to introduce such practices as the Billings Method, but few people know about it. For the most part, the Church in Japan is not obsessed with sexual matters."
In response to a question on couples who live together before marriage, the Japanese say, "The pastoral practice of the Church must begin from the premise that cohabitation and civil marriage outside the church have become the norm."

Update: 
The Japanese bishops are an interesting contrast to the self-righteousness of Robert George - the prominent conservative Catholic lawyer/philosopher at Princeton.  In a post at  Mirror of Justice he states his views on the case of a young teacher at a Montana Catholic school who was fired because she was pregnant and unmarried, giving scandal.  Professor George writes:

“If [the teacher] were repentant, then I, as her fellow sinner, would support keeping her on. I’d even host the baby shower. The example being set for the school children in that case would be one of repentance and forgiveness—loving the sinner, even while rejecting the sin. Of course, if her intention is to flout the Church’s teachings, then it’s a different story. That’s what is going on when a teacher, say, moves in with his or her boyfriend or girlfriend or enters into a civil marriage with a person of his or her own sex—or goes into the strip club business.”

As the Japanese bishops said "The pastoral practice of the Church must begin from the premise that cohabitation and civil marriage outside the church have become the norm.".

'via Blog this'

Public Defenders, Bolstered by a Work Analysis and Rulings, Push Back Against a Tide of Cases - NYTimes.com

Public Defenders, Bolstered by a Work Analysis and Rulings, Push Back Against a Tide of Cases - NYTimes.com: 
by Erick Eckholm

"CLAYTON, Mo. — On a typical recent morning Colleen M. Polak, a St. Louis County public defender, ran upstairs and down and up again and in and out of four courtrooms, simultaneously representing clients in 10 cases. She consulted, negotiated and sometimes just waited. On this day, one client was sentenced to six years for illegal gun possession after a judge dismissed Ms. Polak’s objections to what she called questionable evidence. Ms. Polak, 32, was disappointed, saying that she had spent weekends on the case so as not to deprive other clients of her time but that it was impossible to spread herself as thinly as the job required."

'via Blog this'

Court should take up a new opportunity to repudiate Korematsu

Peter Irons - a lawyer and political science professor at UC San Diego has campaigned long and successfully for justice for the Japanese Americans rounded up on a racial basis and put in camps during World War II.  Although convictions have been reversed and token compensation offered by Congress, the U.S. Supreme Court decision upholding the internments has never been overruled.  Irons says there is a another chance for the court to go on record. . - GWC
Court should take up a new opportunity to repudiate Korematsu:
by Peter Irons

The time has come—and is long overdue—for the Supreme Court to provide a proper burial of its discredited but still dangerous decisions upholding the wartime internment of more than 110,000 Americans of Japanese ancestry in what President Franklin D. Roosevelt correctly labeled as “concentration camps.”Ruling in April 1943, the Court affirmed the criminal convictions of Gordon Hirabayashi and Minoru Yasui for violating military curfew orders that were imposed on “all persons of Japanese ancestry.”  In December 1944, the Court upheld the conviction of Fred Korematsu for defying an “exclusion” order that would have forced him into a “relocation center” hastily constructed in the Utah desert....

'via Blog this'

Hobby Lobby Part VI: The parties' common ground . . . and a fundamental divide about religious exemptions for for-profit employers

Hobby Lobby filed its brief this week, as did the United States in Conestoga Wood.  Final briefs are due March 12 in the contraception mandate cases. Oral argument is March 25.
 = GWC
Balkinization: <i>Hobby Lobby</i> Part VI: The parties' common ground . . . and a fundamental divide about religious exemptions for for-profit employers:
by Marty Lederman

The common ground is the parties' agreement that individuals can and do exercise religion in all aspects of their lives, including when they are engaged in commercial activities.  As the Solicitor General puts it:  "[T]he government’s argument in no sense depends on the proposition that people of faith must check their religious convictions at the door when they enter the commercial arena. . . .  The government does not question the importance of religious exercise to the Hahns [the owners/directors of Conestoga Wood] or to the millions of other believers in this Nation.  Nor does the government fail to appreciate that faith guides adherents throughout their day, including when they carry out responsibilities as corporate managers and directors."  

... the basic message of the government's brief is clear--namely, that to grant a religious exemption here, to a for-profit employer whose employees would bear the burden of accommodating the owners' religious commitments, would be a groundbreaking departure from the judiciary's (and Congress's) historical practice, one that could well pave the way for religious exemption claims by for-profit employers with respect to many of the myriad other statutes governing commercial enterprises, including nondiscrimination requirements, zoning regulations, taxes, and the like.

'via Blog this'

Second Amendmentism allows arms to the un-threatened: 9th Circuit

9th Circuit Judge Diarmuid O'Scannlain, Second Amendmentista

U.S. Court of Appeals Judge  Diarmuid O'Scannlain, despite his charming name, is more druid than christian.  Or perhaps we should just recognize Second Amendmentism as a religion.  Only faith can explain why someone would believe there is a fundamental right for these men to be armed.  In Peruta v. San Diego County a divided Ninth Circuit panel, in an opinion by O'Scannlain, ruled 2 -1 in favor of these plaintiffs:

"Wishing to carry handguns for self-defense but unable to document specific threats against them, plaintiffs Edward Peruta, Michelle Laxson, James Dodd, Leslie Buncher, and Mark Cleary (collectively “the applicants”), all residents of San Diego County, were either denied concealed-carry licenses because they could not establish “good cause” or decided not to apply, confident that their mere desire to carry for self-defense would fall short of establishing “good cause” as the County defines it. An additional plaintiff, the California Rifle and Pistol Association Foundation, comprises many San Diego Country residents “in the same predicament as the individual Plaintiffs.” No plaintiff is otherwise barred under federal or state law from possessing firearms." 

'via Blog this'

Democracy in action, kinda | xpostfactoid

So 28 Republicans voted for the "clean" bill to increase the national debt.  A vote most of the 226 House Republicans favor, we assume, because they can't actually imagine forcing the United States to default on its debts.  But surely they don't really "want" to increase the debt.  It's just that they want weapons, prisons, and even Social Security, and Medicare.  Just not more than that.  So is this democracy? "Kinda" says Andrew Sprung. - gwc
Democracy in action, kinda | xpostfactoid:

So yes, our political system is dysfunctional, in that it can't pass legislation that in some cases a clear majority of reps in both houses of Congress would like to pass. The dysfunction is  a product of divided government, polarized districts, our constitutional "triple veto" on legislation, self-imposed House and Senate rules, a yellow media that inflames the right, a corrupt campaign finance system, residual racism, and inherited distrust of government.  But it ain't exactly undemocratic.

'via Blog this'

China Law Translate | Xu Zhiyong Opinion

Beijing Intermediate People's Court No.1

"Defendant Xu Zhiyong has committed the crime of gathering a crowd to disturb order in a public place. He is sentenced to a fixed-term imprisonment of four years."
- Beijing Municipal No. 1 Intermediate People’s Court Criminal Division, First-Instance Verdict No. 5268 (2013)

IN 1948 in Terminiello v. Chicago the U.S. Supreme Court confronted a question much like that of the Beijing Intermediate People's Court.

Father Arthur Terminiello, a right-wing demagogue, in an auditorium in Chicago, delivered a vitriolic speech in which he criticized various political and racial groups and viciously condemned the protesting crowd that had gathered outside the auditorium. Policemen assigned to the event were unable to prevent several disturbances by the "angry and turbulent" crowd. The police arrested Terminiello for "breach of the peace." He was then tried and convicted for his central role in inciting a riot.

In a 5-to-4 decision, the Court held that the "breach of the peace" ordinance unconstitutionally infringed upon the freedom of speech. Noting that "[t]he vitality of civil and political institutions in our society depends on free discussion," the Court held that speech could be restricted only in the event that it was "likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest." 

Justice William O. Douglas wrote that "a function of free speech under our system is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger." 

China has a long way to go - and there's no reason to think they are going to get there.  Xu Zhiyong - an advocate of western-style liberal democracy - is a determined adversary of the Chinese Communist party which maintains a virtual monopoly of political power.

Jeremy Daum and the China Translate project volunteers have translated the judgment of the court.  One small irony is that the Chinese Supreme People's Court has directed that all judgments be posted on the internet.  In that respect they are well ahead of us.  But in tolerance of political speech and dissent they are not in the ballpark - gwc

China Law Translate | Xu Zhiyong Opinion:

Beijing Municipal People’s Procuratorate Branch No. 1 charged that:

Between July 2012 and March 2013, the defendant Xu Zhiyong, individually and together with others, exploited social issues of great public concern to organize, orchestrate and incite many people to take multiple actions to gather crowds to distrub order in public places, including in front of the Ministry of Education, in front of the Beijing Municipal Education Commission, the South Gate of Chaoyang Park, Zhongguancun, and the Xidan Cultural Square. After committing the offenses, the defendant Xu Zhiyong was apprehended by public security organs.

The Beijing Municipal People’s Procuratorate Branch No. 1 turned over evidence to this court, including physical evidence, written evidence, witness testimony, evaluation opinions, records of crime-scene inspections, audio-visual materials, digital data and the defendant’s statements and explanations. [The procuratorate] found that the defendant Xu Zhiyong repeatedly organized and orchestrated the gathering of crowds to disturb the order of public places and resisted and obstructed state public safety management personnel's lawful performance of their duties; that the circumstances were serious, and that qualify him as a ringleader; that his acts have violated the provisions of Article 291 of the Criminal Law of the People’s Republic of China so that criminal liability should be pursued for the offense of gathering a crowd to disturb the order of a public place; and requested this court to punish him in in accordance with law.

During the trial, the defendant Xu Zhiyong raised objections on jurisdiction and the separation of the case into multiple trials, and did not express opinions on the facts and offenses charged in the indictment. During the court investigation and debate phases, the collegiate bench on repeatedly informed Xu Zhiyong that he enjoys the right to a defense and may express his opinions regarding the facts and evidence in the case. Xu Zhiyong neither expressed his opinions regarding the facts and evidence in this case nor mounted a defense. During the closing statement phase of the trial, Xu Zhiyong discussed his motives for his actions and indicated that the agitation of individual participants were caused by other factors.

During the pre-trial conference, the defendant Xu Zhiyong’s defenders raised objections to the jurisdiction and separation of the case into multiple trials. During the court investigation and debate phases, the collegiate bench repeatedly reminded the defenders that they have a duty of defense in accordance with the law, and should to present materials and opinions, on the basis of facts and the law, showing the the defendant’s innocence or the lightness of the offense, and preserve the defendant’s procedural rights and other lawful rights and interests. During the court’s investigation phase, Xu Zhiyong’s defenders neither posed questions to Xu Zhiyong nor offered opinions on the evidence and no defense arguments were expressed during the court debate phase..
'via Blog this'

NJ State Bar Calls on Christie to Re-appoint Chief Justice Rabner

Governor Chris Christie took office five years ago with a vow to rein in the courts which had long been an object of conservative disdain.  Chief among the grievances were that in the twenty five years between capital punishment's legislative restoration and repeal none of the sixty persons sentenced to death had been executed; the state Supreme Court's open and affordable housing principles of Mt. Laurel had been the source of friction; and large sums were spent by the state in hopes of achieving parity of urban-suburban public school spending and educational results mandated via the Abbott v. Burke rulings.

Shortly thereafter the Governor took the unprecedented step of denying tenure to a long-sitting Associate Justice of the Supreme Court.  A protracted battle with the Democrat-controlled legislature followed.  Christie has gotten only two nominees onto the court which operates now with temporary assignments of two senior Appellate Division judges.
A third vacancy is imminent - that of Christie's former deputy at the U.S. Attorney's office - Democrat and Chief Justice Stuart Rabner.  His seven year term expires in June.  Ralph Lamparello, the State Bar Association's President has spoken out on the issue in an op-ed published in Sunday's Star Ledger.  It follows.  - GWC

Christie should keep Rabner as Supreme Court chief justice: Opinion
Last month, in his State of the State address, Gov. Chris Christie apologized to the people of New Jersey for actions taken regarding lane closures on the George Washington Bridge.

The governor acknowledged that as the leader of the state, he is responsible for its achievements and its missteps. He uttered the phrase so many before him have said: “Mistakes were clearly made.”

While the governor was referring to the Bridge­gate controversy, parallels can be drawn to his actions toward the judicial branch — our third, separate and co-equal branch of government.

The New Jersey State Bar Association believes a mistake was clearly made when the governor took the unprecedented action to not reappoint Justice John Wallace Jr. Another mistake was clearly made when he chose to personally vilify Justice Barry Albin. And, of course, a mistake was clearly made when he refused to nominate Justice Helen Hoens for reappointment last fall.

Mistakes are part of the human experience. We can and do make them every day in the course of our personal and professional lives. It is such a part of the fabric of our existence that magnets and bumper stickers abound bearing commentator Esther Dyson’s entreaty to “always make new mistakes.”

The reverberations of these past mistakes continue to be felt throughout the judiciary. This spring, Chief Justice Stuart Rabner will complete his initial term of seven years as head of the state’s judicial branch, making him eligible for tenure. Through his opinions and his administration of the courts, he has demonstrated the qualities every chief justice should have. In fact, he epitomizes the very qualifications the governor recently said he looks for in a justice.

“What you’re looking for is someone who understands the exalted nature of the work, but does not believe it makes them personally exalted,” the governor said last month at the ceremonial swearing-in of Justice Faustino Fernandez-Vina.

Those words and sentiments describe our chief justice’s tenure and demeanor precisely.

Even more, in 2007, when his nomination was being held up by senatorial courtesy, the governor, as U.S. attorney, said he couldn’t stand by while no one in Trenton spoke up for his former colleague.

At a speech in West Windsor, he stated, “When I read that no one was standing up for him, I turned to my wife and said, ‘I’m doing it today.’ Because good and decent people need to have someone out there who is willing to tell the truth, and not first make a political calculation about whether this is a convenient moment to tell the truth. It’s time for people who believe in people like Stu Rabner to stand up and say enough is enough.”

The New Jersey State Bar Association believes strongly that judges, and the chief justice in particular, deserve tenure — save some demonstration that they lack the knowledge or decorum to serve. We are here “to stand up and say enough is enough.”

It would be an unprecedented intrusion of politics into the judicial branch to decline the reappointment of the sitting chief justice, the person entrusted to lead this branch of government. In fact, no chief justice has been denied tenure under our current constitution. It would be a clear mistake in the case of this chief, a “good and decent” person, who has so admirably led our judiciary for the past seven years.

This is more than just about him rightfully receiving tenure. This is about recognizing and honoring the integrity of the judiciary. To decline the chief justice’s reappointment would strike a body blow to the concept of an independent judiciary, one where the residents of this state seek to resolve their differences in a fair and equitable manner. It would be a clear and blatant attempt to co-opt the judiciary by another branch that is supposed to be its equal, not its superior. Further, it would diminish the democracy envisioned by the Founding Fathers of this country and the framers of the 1947 New Jersey Constitution.

Besides talking about mistakes, the governor further promised in his State of the State message to “do better.” He should apply that mantra not just to governing the state’s highways and bridges, but also to the state’s judiciary.

Ralph J. Lamparello is president of the New Jersey State Bar Association and managing partner of Chasan Leyner & Lamparello PC in Secaucus.

If Legal Education Were More Experiential, Would It Really Matter? | William Henderson - JDSupra

Bill Henderson at Indiana University does very good innovative empirical studies [e.g. his identification of the bi-modal distribution of young lawyers's salaries - basically $150k jobs and $60k jobs and little in between].  People like me in People's Electric and Paul Tractenberg celebrate the exemplary merits of clinical legal education. But  Henderson is a numbers guy.  Now he has turned his attention to Northeastern Law School whose work-study model provides forty five years of experience to assess.  Of course - as he notes - there is a lot of self-selection which leads to government, non-profits, etc. He is announcing in this essay how he going to go about the assessment.  I look forward to seeing what it yields. - GWC

(Historical note - I was admitted to BU, BC, and Berkeley - turned down at Harvard - and gave not a moment's thought to ranking in my decision to follow the pied piper Arthur Kinoy to Rutgers to work on the Chicago 8 case.  But I doubt I'd have turned down the Crimson. - gwc)
If Legal Education Were More Experiential, Would It Really Matter? | William Henderson - JDSupra: "I think the answer is yes. But, unfortunately, in virtually all of the debate surrounding legal education, there is a tremendous lack of clarity and precision about how we assess improvements in quality. And equally relevant, if a gain is real, was it worth the cost? The purpose of this essay is to chip away at this serious conceptual gap. Until this gap is filled, experiential education will fall significantly short of its potential."

'via Blog this'

A Functional Analysis of China's Guiding Cases by Jinting Deng :: SSRN

The new policy of identifying Guiding Cases is a significant innovation by the Supreme Peoples Court of China.  It obviously draws on the common law tradition of precedent.  But the SPC is a broader administrative body than the U.S. federal system permits our Supreme Court to be.  Beyond appellate review the SPC has a variety of tools: guidances, interpretations, rule-making power, and now Guiding Cases to enhance its ability to govern China's sprawling yet under-developed court system. Jinting Deng, an assistant professor at Renmin (People's) University Law School discusses the development. - GWC

The Stanford Project translates
Guiding Cases

A Functional Analysis of China's Guiding Cases by Jinting Deng :: SSRN:
Abstract

This article starts from the essential differences of the generation and effects of China’s guiding cases from the common law. Then, it takes a factual study of what guiding cases have done in relation to the well-known functions of case law. Based on closed analysis of guiding cases no. 5, 6, 9, 15, 17, 18, 21 and 22, and briefly discussions of other guiding cases, it finds that guiding cases similarly function to adapt law to social needs and strengthen judicial autonomy. After that, it uses a cost-benefit approach to analyze previous differences in relation to the realization of those functions. It finds that the Supreme People's Court of China (SPCC) has reformed several aspects of the case law model in the common law system to realize those equivalent functions in China’s situation, which has resulted in the differences between the two. Finally, as guiding cases are only one thing that SPCC has been pushing, I have also done a holistic study of SPCC’s current reforming activities, concluded that guiding cases shall be understood as one of the many tools of the SPCC in realizing those functions, and warned of the limits of the functions of guiding cases.

'via Blog this'

Abortion, Poverty, Contraception, and Promiscuity | Commonweal Magazine

Abortion opponents are the leading opponents of contraception, thus shooting their strategy in the foot.  Their real demand is "stop having sex outside marriage and live with the consequences if you do".  It has a low rate of success.  The public health argument is have sex responsibly - and have sex without contraception only when you are ready to accept the consequences.  That is the European approach and it gives them the lowest rates of abortion in the world.  That is why the Affordable Care Act's contraception witout coost-sharing approach is addressed to a compelling governmental interest. - gwc

Abortion, Poverty, Contraception, and Promiscuity | Commonweal Magazine:

by Prof. David Cloutier // Mt. St. Mary's University

"The first issue is the relationship of economic security to abortion. (All data here is taken from Guttmacher’s fact sheets from their last survey.) 69% of abortions are for women at 200% of poverty level or below. The abortion rate for women at or below poverty is 52 per 1,000 women (15-44), but their “unintended birth” rate is also very high: 70 per 1,000. Thus, the “unintended pregnancy” rate for poor women is 137 per 1,000 – a number near six times high than that of 200%+ poverty women (26). Guttmacher actually reports that the higher income group is more likely to choose abortion for an unintended pregnancy… but of course is dramatically less likely to have an unintended pregnancy in the first place.
***
The third issue to raise is the question of the long-term goal. Let’s say we have a system of effective contraception access and use, more comprehensive health care, somewhat higher restrictions on abortion availability – where will that get us? This is a description perhaps not far from the situation in Western Europe or (excepting the legal restrictions) among higher-income American women. Western Europe has the lowest abortion rate of any region in the world (about 12 per 1,000) and Guttmacher’s numbers suggest an abortion rate of about 14 per 1,000 for higher-income women. If we consider these numbers a kind of ideal-condition floor, let’s say the overall abortion rate dropped to 14 or even 12 in the U.S. – a stuation where we would have between 600,000 and 800,000 abortions every year. It would be hard for anyone to suggest that we had reached a point where abortion is “rare” with these kinds of numbers. I’m not sure what proposals pro-contraception-availability advocates have to lower the rate any further than this. I suppose “long-acting” birth-control methods, which reduce error rates, are the key ones. However, I think this is also a situation where we again have to talk about sexual behavior and say that avoiding risky – and perhaps the better term is “promiscuous” – sexual behaviors is a necessary and reasonable part of reducing abortions and even unintended pregnancies."

'via Blog this'

Robert Dahl Understood Our Democracy - Bloomberg

 

Robert Dahl has died. Like James Madison (the actual one, not the mythical "originalist" Federalist Society version) Dahl understood that politics was about interest group bargaining.  That resource transfer is at its heart. And that democracy means getting your oar in.  Jonathan Bernstein gets it - as usual.

Robert Dahl Understood Our Democracy - Bloomberg:
by Jonathan Bernstein

Dahl taught us, perhaps more than any other modern thinker, to understand democracy as a complex and contested process – not as a simple question of whether elections are held in which majorities win and rule, but as a combination of elections, governing processes and social conditions.

'via Blog this'

What’s Wrong with the US News Rankings? - Concurring Opinions

The rankings game has transformed the way applicants and perhaps employers look at law schools.  Corey Yung of University of Kansas Law School is beginning a series of posts. He is asking how US News & World Report rankings may have influenced the way law schools got to their current difficulties: declining enrollments, financial pressures.  He starts off by listing the factors in the order the weight given.  The first is a guarantor of stability, I would guess.  We'll see what he does with it. - GWC
What’s Wrong with the US News Rankings? - Concurring Opinions:
by Corey Yung

Peer Assessment 25%
Practitioner Assessment 15%
Employment at 9 months 14%
Median LSAT 12.5%
Median GPA 10%
Classroom/Library/Support 9.75%
Employment at Graduation 4%
Student/Faculty Ratio 3%
Acceptance Rate 2.5%
Bar Passage 2%
Other/Financial Aid 1.5%
Library Books 0.75%

'via Blog this'

Synod on family surveys: German, Swiss Catholics reject teachings on marriage, sexuality | National Catholic Reporter

While the U.S. Conference of Catholic Bishops pursues its jihad against the Affordable Care Act's mandate that health benefit plans must provide birth control benefits without cost sharing, the message from Catholics is coming in clear: The Church is out of touch with Catholic practice and personal belief regarding birth control, divorce, and homosexuality.  German and Swiss bishops are the first to report on the results of the Vatican-mandated survey of parishioners in preparation for a Bishops Synod regarding the Church's family teaching and pastoral work. - GWC
Synod on family surveys: German, Swiss Catholics reject teachings on marriage, sexuality | National Catholic Reporter:

Pope Benedict XVI, Pope Francis and many bishops around the world have considered the status of divorced and civilly remarried Catholics a pressing pastoral problem; it is one of the problems Pope Francis has said is a matter to be considered at the synod.
Both the German bishops' and the Swiss bishops' summaries said Catholics in their countries believe the church is unmerciful to Catholics whose first marriages have failed.
"Divorce and remarrying frequently lead to a process of becoming distant from the church or of widening the existing gap," the German bishops reported. "Many no longer wish to be associated with an institution which they regard as unforgiving."
Both the German and Swiss bishops' surveys found the vast majority of Catholics reject or simply ignore church teaching that every sexual act between a husband and wife should be open to the transmission of life, therefore ruling out the use of artificial contraceptives.
The Swiss bishops said that "approximately 60 percent of participants in the consultation support the recognition of and a church blessing for homosexual couples," though the responses showed "no consensus, but rather a polarization," with strong negative reactions.
While Catholic teaching insists homosexual people should not be discriminated against, it holds that homosexual acts are always immoral and that marriage can only be a union between one man and one woman.
The German bishops said Catholics in their country, which has recognized "civil partnerships" of same-sex couples since 2000, largely "regard the legal recognition of same-sex civil partnerships and their equal treatment vis-a-vis marriage as a commandment of justice."

'via Blog this'

Coca Cola - America the Beautiful

Coca Cola really got it right with their stirring Super Bowl ad.

Abortion rate declines to lowest level in thirty years

One of the most infuriating things about those on the right - particularly Catholics - is that while they ceaselessly claim the high moral ground on abortion, they with high moral dudgeon oppose the ACA's expansion of contraceptive care without cost to insured women.  As this Guttmacher Institute study shows, the abortion rate declines with the expansion of use of contraceptives. - gwc
Abortion rate declines to lowest rate in three decades  // NY Times
by Erik Eckholm

The abortion rate among American women declined to its lowest level in more than three decades in 2011, according to a new report released Monday that is widely considered the country’s most definitive examination of abortion trends.

The 1.1 million abortions reported in 2011 represented a rate of 16.9 per thousand women of childbearing age, down from 2008, when a similar study estimated that 1.21 million abortions were performed at a rate of 19.4 per thousand women.

Well, That Escalated Quickly - Chris Christie's shipwreck

disaster at the Port Authority -
an attachment to a David Wildstein email

Brian Murphy and Steve Kornacki - both former reporters for David Wildstein's Politics.nj - are bloodhounds on the trail of the Chris Christie train wreck.  I did not want to believe that the grandstanding bullying, hot-tempered then U.S.Attorney would really get to be Governor of New Jersey.  I overestimated (always dangerous) the ability of the electorate to judge character.  When I heard his trashing of "Trenton" on the night of his 2009 election I thought - he's out to create enemies and that will bring him down.  Then he surprised me - his wheeling and dealing found Democrats willing to make deals - particularly at the expense of sot targets like school teachers, public employees, the "liberal" courts, etc.  But this is a different kind of debacle - the populist hero exposed as a bare-knuckle help your friends punish your enemies sort of real estate wheeler and dealer.  That seems to be the current accelerator of humpty-dumpty's descent. - GWC
Well, That Escalated Quickly: 
by Brian Murphy // Talking Points Memo
"Over Chinese food at the fabulous Lao Sze Chuan in Milford, Ct. I had the pleasure of reading Chris Christie’s 700-word-long attack on David Wildstein and the New York Times. This came moments after I opened a fortune cookie that advised me to “Enjoy yourself while you can.” (!) I am trying to summon the requisite mood to seriously ponder the implications of the email that Governor Christie apparently sent to supporters/donors/ Politico/Beltway Republicans (as if there’s any… never mind). But I can’t. I just can’t. It is hard for me to believe that the governor of an American state could author such a piece of risible juvenilia, except it is even harder for me to believe a paid communications professional could have been behind this. The “argument” Christie (or possibly one very very close longtime advisor) is making here is that David Wildstein is a bad guy."
The Wildstein Take-down Rant

  Christie Email by tpmdocs

'via Blog this'

Super Bowl weekend spoiled for Chris Christie

Super Bowl weekend in New Jersey figured to be a triumphant moment for its attention-loving Governor who has attended many Bruce Springsteen concerts at that venue in the Hackensack River meadowlands. But instead he has been swamped by more details and allegations arising from the punitive traffic jam his office ordered.
"Evidence exists" that Gov. Chris Christie knew of the allegedly retaliatory lane closings says David Wildstein, the Port Authority executive who ordered the creation of a traffic jam at the entrance to the George Washington Bridge in September 2013.  The Christie camp responded today with allegations that "David Wildstein will do and say anything to save David Wildstein".  He has been like that since he was young man according to a memo circulated by the Governor's Office yesterday which appeared in Politico.  Christie, after an initial response that minimized the assertions by Wildstein has now gone into attack mode, something more like the hot-headed man we have come to know.