NCAA proposes deep cuts in O'Bannnon class counsel fee application

Plaintiffs counsel Michael Hausfeld

The NCAA has filed its opposition to the plaintiff class lawyers' Clayton Act (15 USC 26)  motion for $50 million in counsel fees in O'Bannon v. NCAA.  The NCAA argues that plaintiffs should recover only $9 million in counsel fees and proposes steep reductions in cost recovery.  
In August 2014 U.S. District Judge Claudia Wilken ruled that the NCAA violated antitrust law by preventing student-athletes from being compensated for their name, image and likeness rights.
Wilkens' ruling allows schools to pay athletes licensing money into a trust fund starting in 2016. Financial damages were not part of the trial, but Wilken said the plaintiffs "shall recover their costs from the NCAA."
The NCAA argues that plaintiffs lawyers application is flawed in that it they may not recover fees for work done on the case prior to September 1, 2012 when their theory of the case changed; they  may not recover fees for work done solely to advance claims upon which they did not prevail in substantial part, or for claims that were essentially abandoned; nor may they recover for "work that was unnecessary, redundant and inefficient, unsupported by plaintiffs’ billing records, or that did not reflect sound billing judgment". 
 Finally the NCAA argues that much of plaintiffs's claims of costs are "unsupported by their submission or the law".

How should Chinese military courts be reformed? Global Military Justice Reform:

Zhang Jiantian

Global Military Justice Reform: How should Chinese military courts be reformed?
by Susan Finder, J.D., LLM
"Zhang Jiantian, former Central Military Commission (CMC) Legislative Affairs Commission official (and former military judge), and currently a professor at the China University of Political Science and Law, set out his thinking on the problems of the military courts and how they should be reformed earlier this month on the Chinese national court website (and the People's Court Daily).  His views appear on this blog for the second time. In this article, he provides the world outside the gated Chinese military legal community a window into the issues confronting the reform of Chinese military justice. Professor Zhang notes that although in name Chinese military courts appear to be courts established in the PLA and People's Armed Police, in reality they are a department of the military political authorities, which has created a whole set of problems:

Complete lack of legal protection for the military courts;

Unclear status of the military courts;

Difficult role for military judges;

Military courts operate as a functional department in each military region.  Personnel management of military judges is split from management of their work.

Operating funds are allocated by the political departments of each service, so the independence of the courts is affected by the control of the finance department of the military service over funding.

The current system means that command leadership wherever the court is situated interferes in the trial of cases. 

2008 judicial reforms approved by the Communist Party Central Committee, which included military judicial reforms, were not effectively implemented, which he attributed to the absence of a legal framework."

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A Black Mississippi Judge's Breathtaking Speech To 3 White Murderers : Code Switch : NPR

Carlton Reeves, U.S. District Judge

A Black Mississippi Judge's Breathtaking Speech To 3 White Murderers : Code Switch : NPR: "Here's an astonishing speech by U.S. District Judge Carlton Reeves, one of just two African-Americans to have ever served as federal judges in Mississippi. He read it to three young white men before sentencing them for the death of a 48-year-old black man named James Craig Anderson in a parking lot in Jackson, Miss., one night in 2011. They were part of a group that beat Anderson and then killed him by running over his body with a truck, yelling "white power" as they drove off. The speech is long; Reeves asked the young men to sit down while he read it aloud in the courtroom. And it's breathtaking, in both the moral force of its arguments and the palpable sadness with which they are delivered. We have decided to publish the speech, which we got from the blog Breach of Peace, in its entirety below."
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Affordable Care Act enrollment puts Maine in rare company - The Portland Press Herald / Maine Sunday Telegram

Our town - Friendship - is not a Democratic stronghold.  Self-employed lobstermen tend to vote Republican. And this is a fishing town.  The only sizeable employer is the Friendship Trap Company.  But rather than crying like a Tea Party Member of Congress for repeal of "Obamacare", lobstermen and the self-employed here and across the midcoast are signing up at a high rate.
Why? Good affordable coverage, on a sliding scale (with subsidies for a family of four with income up to $95,000).   - gwc
Affordable Care Act enrollment puts Maine in rare company - The Portland Press Herald / Maine Sunday Telegram

by Joe Lawlor

Midcoast towns where lobstermen make a living also tend to be where the Affordable Care Act is reaching the most Mainers per capita, producing the highest sign-up rates for health insurance, according to an analysis of federal enrollment data.

The Kaiser Family Foundation review of enrollment figures from the U.S. Department of Health and Human Services shows that Mainers have embraced the Affordable Care Act at a higher rate than all but two states and the District of Columbia. But the sign-ups have not been evenly distributed across the state. In some areas, such as Lewiston and Livermore Falls, many have not taken advantage of the subsidized health benefits, while in other areas the ACA has gained much more traction.

ADDITIONAL IMAGES

Home to many self-employed lobstermen, Vinalhaven is among the Maine coastal communities where the rate of enrollment in the Affordable Care Act was comparatively high. 2014 Maine Sunday Telegram/Staff Photographer

RELATED HEADLINES

• Interactive map: Affordable Care Act enrollment in Maine
• Interactive map: National ACA enrollment

Areas with the highest enrollments were mostly towns along the coast such as Vinalhaven, Deer Isle, Stonington and Friendship, where many lobstermen live. Those towns had per-capita ACA enrollment rates more than double the average Maine town, according to ZIP code-level data from DHHS.

But it’s not only lobstermen. ACA sign-ups have surged the most in areas with the highest rates of self-employment, according to a Maine Sunday Telegram analysis of ZIP code-level enrollments and U.S. Census data.

The ZIP codes with high enrollment also tend to contain a higher percentage of self-employment in the workforce, with some ZIP codes having three times as many self-employed workers or more than the state average of 11 percent self-employed.

For lobsterman John Drouin, who lives in the Washington County town of Cutler, the ACA is a mixed bag – even though he’s purchased insurance in the first two years of its existence. He said the bureaucracy and red tape he’s endured to buy benefits have been burdensome, and premiums tripled for 2015 because his income is going up and his household size is decreasing as his young adult children leave home.

But still, he’d rather have insurance than not, after 15 years of living without it.

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Vox Interview with President Obama

David Carr - syllabus - Press Play - BU Journalism School

David Carr, writer (1957-2015)

Press Play — Press Play — Medium

Press Play

Making and distributing content in the present future we are living through.

David Carr
syllabus
Boston University School of Journalism
Fall 2014

Addendum

The good news is that this is the first time that I have taught this class, so boredom will not be an issue. It’s also the bad news, because even though I have done a great deal of teaching over the years, it’s the first time I’ve been an actual professor and have had to string together an entire semester. You are a beta, which means things will be exciting and sometimes very confusing. Let’s be honest with each other when that happens. If you don’t get where I am going or what I want, say so. I care deeply that I do a good job in all endeavors, especially this one. I expect you to work hard and want to respond in kind.

And just so you know, to speak to Mikaela is to speak to me. I lean hard on her and trust her judgment. Just saying.

Not need to know, but nice to know: Your professor is a terrible singer and a decent dancer. He is a movie crier but stone-faced in real life. He never laughs even when he is actually amused. He hates suck-ups, people who treat waitresses and cab drivers poorly, and anybody who thinks diversity is just an academic conceit. He is a big sucker for the hard worker and is rarely dazzled by brilliance. He has little patience for people who pretend to ask questions when all they really want to do is make a speech.

He has a lot of ideas about a lot of things, some of which are good. We will figure out which is which together. He likes being challenged. He is an idiosyncratic speaker, often beginning in the middle of a story, and is used to being told that people have no idea what he is talking about. It’s fine to be one of those people. In Press Play, he will strive to be a lucid, linear communicator.

Your professor is fair, fundamentally friendly, a little odd, but not very mysterious. If you want to know where you stand, just ask.

Is there is a duty to disclose death of client during settlement negotiations? Bernabe/Professional Responsibility Blog

Issues presented include RPC 4.1 - the general duty of truthfulness,  not just truthiness; RPC 8.3 (duty to report misconduct); RPC 8,4 (c) (misrepresentation).
Professional Responsibility Blog: Illinois Appelate court on whether there is a duty to disclose death of client during settlement negotiations:
by Prof Alberto Bernabe
 "About ten days ago, the Illinois appellate court issued a good opinion that deals with several issues we cover in class. The first one is whether an attorney has a duty to disclose the death of his client when the attorney is negotiating a settlement in litigation. The case is called Robinson v. Orthotic & Prosthetic Lab, Inc and it is available here.
 In this case, the plaintiff, Randy Robison, filed a product liability action against the defendant, Orthotic & Prosthetic Lab, Inc. in 2008.   In January, 2013, while the case was still ongoing, the plaintiff died but the plaintiff’s lawyers did not alert the court or the attorneys for the defendant. In September 2013, the attorneys for both sides began settlement negotiations and reached an agreement on September 24. To finalize it, the attorney for the plaintiff sent an e-mail to the attorney for the defendant in which he stated “My client has instructed me to accept . . . in full and final settlement of this matter. Please provide an appropriate release and I will present it to my client for review and approval.”
 The plaintiff's lawyer did not notify the defendant's lawyer of the plaintiff's death until after the defendant had submitted the settlement agreement, and he did so when he sent an amended version of the proposed release in which he asked the defendant's lawyer to agree to substituting the plaintiff's son as plaintiff in the case.  The defendant's lawyer refused and asked how come he had not been informed of the plaintiff's death, to which the plaintiff's lawyer replied that he had researched the issue and determined that he had no affirmative duty to disclose the information because it was against his clients' interests and he had a duty to protect his clients' interests within the bounds of the rules of professional responsibility.
 The defendant refused to follow through on the settlement agreement claiming it was not valid, and the plaintiff moved to enforce the settlement.  Eventually, the lower court eventually granted the motion and the defendant appealed. In a short and well written opinion, the Court of Appeals reversed holding that the agreement was not valid and suggesting that the conduct of the attorney for the plaintiff in not disclosing the death of the client was unethical.  Interestingly, it also suggested that the conduct of the defendant's lawyer was unethical in not reporting the conduct of the plaintiff's lawyer. 
Here are the most important paragraphs of the opinion:

 ... The defendant further argued that the settlement was invalid because the death of the plaintiff was a material fact that had been concealed from the defendant prior to and during settlement negotiations. ... .... Settlement negotiations commenced in September 2013, and an agreement was ostensibly reached on September 24, 2013. The defendant, however, had no knowledge about the plaintiff's death or the appointment of a personal representative throughout the period of settlement negotiations. [These facts were not disclosed until] weeks after the settlement was reached and months after the plaintiff's death. [The plaintiff's lawyer acknowledged that] the disclosure of the plaintiff's death would have adversely impacted the settlement value of the case. He stated that he believed that the decision to withhold the information was in his clients' best interest and was in keeping with the rules of professional responsibility. We strongly disagree. We find that the arguments expressed by [the plaintiff's lawyer] are specious and incredible, and we are concerned about his professional judgment in this case. In failing to disclose the fact of the plaintiff's death, [the plaintiffs lawyer] intentionally concealed a material fact that would have reduced the overall value of the claim for damages. In addition, and equally troubling, [he] led the defendant to believe that he had authority to negotiate a settlement of the litigation on behalf of the party plaintiff, when the action was without a plaintiff as the plaintiff had died and a representative had not been substituted. Given [these] intentional misrepresentations and material omissions prior to and during the settlement negotiations, we conclude that the settlement agreement is invalid and unenforceable, and that the trial court erred in granting the motion to enforce it.  

In my opinion, this is the correct approach to the issue, but it needs to be explained a bit further....."
keep reading

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America's Last Great Convention- San Francisco - 1984

The cold war liberal turned neo-con then UN Ambassador Jeane Kirkpatrick labeled them "the San Francisco Democrats".  I didn't know quite what she meant but knew it was contemptuous.  Neither the Gary Hart nor Jesse Jackson supporters was convinced that all hope for their candidacies so floor fights remained part of the arsenal. I was on the Platform Committee which remained the subject of contentious votes on the floor about nuclear arms control and Israeli settlement policy.  I was dispatched to state caucuses by the foreign policy advisers Barry Carter and Madeline Albright to speak for the Mondale campaign.
  There was the elevated oratory of New York's Governor  Mario Cuomo in his "Shining city on a hill - tale of two cities"  speech.  And the nomination of Fordham Law alum Geraldine Ferraro for vice president.  and there was Grace Slick and Jefferson Airplane playing on the pier at a huge party paid for by then state Senate leader Willie Brown.
But there was a low moment for me -when Vice President Mondale pulled out his "Reagan Charge" card.  He called for a balanced budget amendment (!?) and said "Ronald Reagan will raise taxes and so will I - but I'll do it fairly".  I saw electoral votes slipping away. - gwc
Mondale, Hart, Jackson Dish About the Law Great Convention - San Francisco in 1984 - SLATE
by Phil Hirschkorn

Gary Hart had one more move. It was Sunday, July 15, 1984, the eve of the Democratic National Convention, in San Francisco. He had won the California primary on June 5, seven of the last 11 contests, and more overall than frontrunner Walter “Fritz” Mondale. But Hart was way behind in delegates. Mondale had announced he had enough to be nominated to oppose incumbent Ronald Reagan in the fall. Hart had neither conceded the race nor suspended his campaign.

“Surprises could happen,” Hart recalled to Salon in an interview for this article.

Staying at the old St. Francis Hotel in Union Square, Hart walked across the square to the Hyatt to visit Reverend Jesse Jackson. Jackson had been as much of a revelation as Hart in the primaries and became the first black candidate to mount a very competitive White House run, finishing third in delegates.

“I sat outside Jesse’s door for about half an hour, and finally he let me in,” Hart said. “I wanted him to endorse me and turn his delegates over to me.”

Hart was polling 10 points better than Mondale against Reagan. A deal with Jackson could elevate him closer to Mondale’s delegate total but still short of a majority. “That would have gotten me up to 1,500 and some, and who knows what would have happened then,” Hart said.

Jackson wasn’t ready to quit. He wanted to be officially nominated for president.  “Any idea of placing the delegations together went out the window, but at least I made a try,” Hart said.

Suspense over the nominee is only one factor that distinguishes the 1984 Democratic National Convention from all 15 major party conventions that have followed. There were also historic candidate breakthroughs by race, gender and generation. There was a most memorable keynote address. There were fights over the party platform. It was the first time there were “super” delegates — office holders and party activists who can play a decisive role in the nomination. And there was a huge television audience. Subsequent conventions might have one of these elements, but none had them all, and the gatherings in Cleveland and Philadelphia next summer probably won’t compare to the Democrats in 1984 either.

Congressman John Yarmuth: Why I will not be attending Israeli PM Netanyahu's speech to Congress

Congressman John Yarmuth (D-KY)

Congressman John Yarmuth : Press : STATEMENT: Why I will not be attending Israeli PM Netanyahu's speech to Congress
Thursday February 12, 2015

As a Jewish member of Congress, and as someone who proudly supports the State of Israel, I am saddened by the breakdown of the traditionally bipartisan cooperation on issues affecting that nation, precipitated by the impending speech of Prime Minister Netanyahu to Congress on March 3.
The controversy surrounding the invitation to the Prime Minister and his acceptance has unfortunately made the question of attendance at the speech a matter of public interest. It is both sad and ridiculous that attending this speech will be used as a litmus test for support of Israel.  In short, roll will be taken, and some outside organizations have even threatened potential absentees with electoral repercussions. Since I do not plan to attend the Prime Minister’s appearance, I now find it necessary to publicly explain my intended absence.
Among the many reasons I will not attend are the following:
We know what he is going to say. Netanyahu’s position on the ongoing negotiations on Iran’s nuclear program is not a secret. Like many other members, I have been visited by the Israeli ambassador and understand what they want and how that differs from what U.S. negotiators are attempting to accomplish.
The Prime Minister has plenty of other places to express his opinions. In fact he has done so many times.
Netanyahu will specifically be arguing against the foreign policy of the administration. Speaker Boehner invited the Prime Minister to address Congress specifically to refute President Obama’s position. I will not contribute to the impression that this body does not support the President of the United States in foreign affairs.
The speech is scheduled less than two weeks before Israeli elections and there is a demonstrable risk that Netanyahu will use the perception of congressional support in his campaign. He did it before. A television ad for his 2013 campaign begins with a shot of the U.S. Capitol, and has footage of rousing applause from members. (House ethics rules prohibit members of Congress from using such footage in political ads.)
It will become a matter of score-keeping as to who stands up and applauds and who doesn't. Having visited Israel only months after Netanyahu addressed Congress in 2011, I know how much political impact these scenes have in that country. There is pressure to join the applause even if a member does not agree with statements made.
Congress has a broader responsibility than the security interests of Israel. While it certainly is important that we understand the Israeli perspective, the American people will hear only Netanyahu’s perspective, creating a public perception that could undermine a broadly supported resolution to the Iranian nuclear situation.
The Prime Minister’s appearance will be construed by many to infer congressional support for his position as opposed to US policy.
I do not want my respectful attendance to in any way imply support for his position.
Finally, the speech comes at a delicate period in the negotiations with Iran, coming only three weeks before the deadline established for an agreement on a framework for a program to ensure that Iran does not have the capability to build a nuclear weapon.
I sympathize with the Israeli predicament in this situation. They are forced to sit by while six other nations negotiate an agreement that directly affects their national security. They do not have a seat at the table. On the other hand, the only way a potential Iranian nuclear threat can be averted peacefully is if the world powers use the crippling economic sanctions to force a diplomatic solution. All of those countries have an interest in preventing Iran from developing nuclear weapons. Prime Minister Netanyahu’s position, if adopted by the United States and the other negotiating parties, would make a diplomatic resolution much more difficult, if not impossible.

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FBI Director Comey: Hard Truths about Race Relations

Father Joseph McShane, S.J., President  of Fordham University called on us yesterday to commit to a week of reflection on race relations.  If we take FBI Director James B. Comey's speech as a keynote we will do well. Comey - an Irish Catholic speaks of Michael Patrick Healy, S.J.  The son of a planter and a slave he was legally a slave but raised by his father who sent him and his brothers north to the College of the Holy Cross where he was the first African-American graduate.  He joined the Society of Jesus and was the 29th  President of Georgetown University.   - gwc

FBI — Hard Truths: Law Enforcement and Race

FBI Director James B. Comey

February 12, 2015

at Georgetown University

Let me start by sharing some of my own hard truths:

First, all of us in law enforcement must be honest enough to acknowledge that much of our history is not pretty. At many points in American history, law enforcement enforced the status quo, a status quo that was often brutally unfair to disfavored groups. It was unfair to the Healy siblings and to countless others like them. It was unfair to too many people.

I am descended from Irish immigrants. A century ago, the Irish knew well how American society—and law enforcement—viewed them: as drunks, ruffians, and criminals. Law enforcement’s biased view of the Irish lives on in the nickname we still use for the vehicles we use to transport groups of prisoners. It is, after all, the “paddy wagon.”

The Irish had tough times, but little compares to the experience on our soil of black Americans. That experience should be part of every American’s consciousness, and law enforcement’s role in that experience—including in recent times—must be remembered. It is our cultural inheritance.

There is a reason that I require all new agents and analysts to study the FBI’s interaction with Dr. Martin Luther King, Jr., and to visit his memorial in Washington as part of their training. And there is a reason I keep on my desk a copy of Attorney General Robert Kennedy’s approval of J. Edgar Hoover’s request to wiretap Dr. King. It is a single page. The entire application is five sentences long, it is without fact or substance, and is predicated on the naked assertion that there is “communist influence in the racial situation.” The reason I do those things is to ensure that we remember our mistakes and that we learn from them.

One reason we cannot forget our law enforcement legacy is that the people we serve and protect cannot forget it, either. So we must talk about our history. It is a hard truth that lives on.

A second hard truth: Much research points to the widespread existence of unconscious bias. Many people in our white-majority culture have unconscious racial biases and react differently to a white face than a black face. In fact, we all, white and black, carry various biases around with us. I am reminded of the song from the Broadway hit, Avenue Q: “Everyone’s a Little Bit Racist.” Part of it goes like this:

Look around and you will find
No one’s really color blind.
Maybe it’s a fact
We all should face
Everyone makes judgments
Based on race.

You should be grateful I did not try to sing that.

U.S. Orders Alabama To License Gay Unions - NYTimes.com

U.S. Orders Alabama To License Gay Unions - NYTimes.com
by Campbell Robertson

MOBILE, Ala. — A federal judge here ruled on Thursday that the local probate judge cannot refuse to issue marriage licenses to same-sex couples, potentially adding some clarity to a judicial quarrel that has roiled Alabama for most of a week.

The order by Judge Callie V. S. Granade of Federal District Court came after a brief hearing and prompted cheers and crying in the halls of the probate court here, where several couples obtained licenses and were married before the license office closed.***
In a relatively straightforward order, Judge Granade restated her finding that the state’s ban on same-sex marriage was unconstitutional and concluded that if the couples before her “take all steps that are required in the normal course of business as a prerequisite to issuing a marriage license to opposite-sex couples, Judge Davis may not deny them a license on the ground that plaintiffs constitute same-sex couples.”

Judge Davis almost immediately began issuing licenses to same-sex couples, but it was unclear whether other probate judges would follow suit. As of noon on Thursday, judges in 23 Alabama counties were issuing licenses to all couples, in 18 counties to straight couples only and in 26 to no couples at all, according to a tally kept by the Human Rights Campaign, a gay rights group.'via Blog this'

What Caused the Crime Decline? = New Brennan Center Report

Sentencing Law and Policy: New Brennan Center report asks "What Caused the Crime Decline?"

This press release highlights the publication of this important new report by the Brennan Center for Justice titled "What Caused the Crime Decline?".  This report looks like a must-read for all advocates (and opponents) of modern sentencing reform, and here are excerpts of the summary appearing in the press release:

 Since 1990, increased incarceration had a limited impact on reducing crime nationwide, concludes a new report from the Brennan Center for Justice at NYU School of Law.  In What Caused the Crime Decline?, a team of economic and criminal justice researchers examine over 40 years of data, gathered from 50 states and the 50 largest cities. Among the report’s new findings: Incarceration: Increased incarceration had some effect, likely in the range of 0 to 10 percent, on reducing crime in the 1990s. Since 2000, however, increased incarceration had a negligible effect on crime.

State Success: A number of states, including California, Michigan, New Jersey, New York, and Texas, have successfully reduced their prison populations while crime continues to fall.

Other Factors: Increased numbers of police officers, some data-driven policing techniques, changes in income, decreased alcohol consumption, and an aging population played a role in the crime decline. In particular, the report finds CompStat is associated with a 5 to 15 percent decrease in crime. The report also includes new information on the effects of unemployment, the death penalty, and other theories on crime.

During the 25 years since 1990, incarceration rates have exploded — almost doubling in size — and added about 1.1 million additional people behind bars.  During that same time, crime rates have been cut almost in half. Using an economic model that accounts for the diminishing returns of extremely high levels of incarceration and includes the latest 13 years of data, the report bolsters past research suggesting increased incarceration had little impact on crime rates, but finds an even smaller impact on crime.

“Some have argued that despite the immense social and economic costs of America’s mass incarceration system, it has succeeded at reducing crime,” said report co-author Dr. Oliver Roeder.  “The data tells a different story: if reducing crime is the end goal of our criminal justice system, increased incarceration is a poor investment.”

“This report amplifies what many on the left and the right have come to realize in recent years: mass incarceration is not working. It simply isn’t necessary to reduce crime,” said Inimai Chettiar, director of the Brennan Center’s Justice Program and author of the executive summary.  “The prison explosion has been very expensive.  A better use of public resources would be improving economic opportunities, supporting 21st century policing practices, and expanding treatment and rehabilitation programs, all of which have proven records of reducing crime without incarceration’s high costs.”

“This groundbreaking empirical analysis from the Brennan Center shows that, on examination, the easy answers do not explain incarceration’s effect on crime,” wrote Dr. Joseph E. Stiglitz, a Nobel laureate in economics and University Professor at Columbia University, in the foreword.  “This report presents a rigorous and sophisticated empirical analysis performed on the most recent, comprehensive dataset to date.”"
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In Sharp Words From Xi, Ominous Implications for China’s Legal Reforms - China Real Time Report - WSJ

It's a 矛盾 - a contradiction -that as the Chinese Communist Party announces its commitment to rule of law its leadership employs rhetoric not heard in forty years to emphasize that it is dead serious about remaining in power.  The CP has enacted economic reforms that make them "capitalist roaders" of Mao Tse Tung's worst nightmares.  But they sure as hell are not European Social Democrats who intend 改革开放 opening and reform in the political arena.  They are firmly committed to law as a means of regularizing the resolution of the practical problems of modern (or is it post-modern) urban society.  But they do not intend to stand for election.

The problem they face is that enclosure is stultifying.  The thesis-antithesis-synthesis of China's modernization is that they have absorbed ideology from the west (Marxist socialism) while trying to wall off western liberalism, and welcoming western law (especially commercial law), and technology.  Yet rather than explore contradictions to develop new syntheses, Chinese friends often describe  topics as "sensitive" - from which one shies away.  It is increasingly difficult to exchange information. (e.g. my google blogs are inaccessible to my friends and their gmail accounts have been blocked).

Many Chinese colleagues have said things like "they treat us like children". Marxists believe themselves to be scientists yet science requires data - and much data - like the execution statistics - are "state secrets" inaccessible to researchers and policy analysts. Unless the CPC finds its way to opening the political process its fears will stunt China's economic growth and its intellectual influence in the world. - gwc

In Sharp Words From Xi, Ominous Implications for China’s Legal Reforms - China Real Time Report - WSJ
by Stanley Lubman
"President Xi Jinping’s recent rhetoric on ruling the country according to law has cast a new shadow over legal reform in China. Speaking of the courts and police in a meeting last month, Xi revived a vivid image from the Communist Party’s ideological vocabulary about the role of law, stating that the party must ensure “the handle of the knife is firmly in the hands of the party and the people.” Xi’s invocation of a menacing slogan ratcheted up the volume on a growing chorus of arguments that are being used to distance Chinese law from law in Western democracies."

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Curb False Guilty Pleas - Editorial Board - New Jersey Law Journal

Curb False Guilty Pleas | New Jersey Law Journal

by the Editorial Board  December 5, 2014

Writing in the Nov. 22 issue of the New York Review of Books, U.S. District Judge Jed S. Rakoff of the Southern District of New York addressed the likelihood that there are too many instances in which federal court defendants plead guilty not because they are, but because they have been presented with a plea bargain which must be agreed to promptly or potentially lost or diminished with the passage of time.

Rakoff observed that the prosecutor is at a distinct advantage, because indictments are often structured with multiple counts so as to portend enormous sentences upon conviction, the potential of which frequently serves to bring about early pleas that obviate the need for the government to prepare and go to trial. Rakoff recognizes that with the number of pending criminal cases, plea bargaining is a necessary and important facet of the criminal justice system. 

But to the extent that individuals may be prompted to enter pleas, despite legitimate and significant defenses to be offered at trial, Rakoff believes that efforts should be made to minimize the potential for false guilty pleas. The suggestion offered in the New York Review piece is that, at least on a trial basis, it might be useful for a magistrate judge to meet separately with the prosecutor and defense counsel after an indictment is returned—or even earlier—and for the meeting to be recorded but placed under seal.

As per Rakoff's suggestion, the magistrate would be informed of the evidence and the issues in the case. Evidence might be examined and witnesses interviewed under certain circumstances, all of which would be confidential and without prejudice to either side. While this process is being carried out, the prosecutor would be prevented from offering any plea bargains or making any threats.

There would then be separate meetings with both sides and, if indicated, recommendations as to the disposition of the case, including possible dismissal of the charge or suggestions as to a reasonable plea bargain. Rakoff says that he is "… under no illusions that this suggested involvement of judges in the plea-bargaining process is a panacea. But would not any program that helps to reduce the shame of sending innocent people to prison be worth trying?"

We agree and believe the experiment ought to be carried out. New Jersey would be a good place to start.

Read more: http://www.njlawjournal.com/id=1202678194863/Curb-False-Guilty-Pleas#ixzz3RMPLS2j4

Overturning Obamacare Would Change the Nature of the Supreme Court //Linda Greenhouse - NYTimes.com

Linda Greenhouse on King v. Burwell, the Obamacare wrecking ball case now before the U.S.Supreme Court. - gwc
Overturning Obamacare Would Change the Nature of the Supreme Court - NYTimes.com
by Linda Greenhouse

***To accept the challengers’ narrative, the government’s brief asserts, “the court would have to accept that Congress adopted that scheme not in a provision giving states clear notice of the consequences of their choice, but instead by hiding it in isolated phrases.” The court should interpret the statute “to avoid the disrespect for state sovereignty” inherent in that unlikely account.

Among the two dozen other “friend of the court” briefs filed on the government’s behalf is one from a group of small business owners (significant because the earlier case against the Affordable Care Act was brought by a small-business federation) and several from the health care industry. The Catholic Health Association, representing 600 Catholic hospitals, along with Catholic Charities, filed a brief explaining the significance of the Affordable Care Act for health care providers that serve, as the Catholic hospitals do, a high proportion of low-income patients.

So will the Affordable Care Act survive its second encounter with the Roberts court? I said earlier that this case is as profound in its implications as the earlier constitutional one. The fate of the statute hung in the balance then and hangs in the balance today, but I mean more than that. This time, so does the honor of the Supreme Court. To reject the government’s defense of the law, the justices would have to suspend their own settled approach to statutory interpretation as well as their often-stated view of how Congress should act toward the states.

I have no doubt that the justices who cast the necessary votes to add King v. Burwell to the court’s docket were happy to help themselves to a second chance to do what they couldn’t quite pull off three years ago. To those justices, I offer the same advice I give my despairing friends: Read the briefs. If you do, and you proceed to destroy the Affordable Care Act nonetheless, you will have a great deal of explaining to do — not to me, but to history.
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ERISA Counsel to Pay $246K for failure to supervise claims administrator | New Jersey Law Journal

Judge Adopts Report Calling for ERISA Counsel to Pay $246K | New Jersey Law Journal:

A federal judge in Newark has adopted a special master's report recommending that plaintiffs' lawyers in a class action against Health Net Inc. be ordered to repay $246,224 for failing to properly supervise a claims administrator.

The special master, Paul Zoubek, was appointed in the wake of delays in distribution of the settlement to class members, who filed suit over alleged under-payment of claims for medical services. A $215 million Employee Retirement Income Security Act settlement was reached in 2008 but five years later, $90 million had still not been paid to class members, according to court documents.

Zoubek, of Montgomery, McCracken, Walker & Rhoads in Cherry Hill, N.J., was asked to examine whether class counsel should be replaced or ordered to repay any portion of the $69 million in legal fees from the case, and whether sanctions or other disciplinary actions were warranted against Health Net or the two law firms representing the class, Wilentz, Goldman & Spitzer of Woodbridge, N.J., and Pomerantz Haudek Block Grossman & Gross of New York.

Zoubek's report found that no basis existed for the replacement of class counsel or for a so-called "clawback" of counsel fees it received. The report also said no disciplinary actions or sanctions were warranted against Health Net or the two law firms because neither had demonstrated bad faith.

On Feb. 5, U.S. District Judge Faith Hochberg of the District of New Jersey approved a $6.25 million amendment to the prior $215 million settlement. On the same day, she approved Zoubek's special master report.

Zoubek's report recommended that if the amendment were approved, the court should withhold a payment of $492,448 out of the cash settlement fund in the case to Berdon Claims Administration. Half of that amount, $246,224, should instead be charged to class counsel, with the Wilentz firm and Pomerantz Haudek each required to pay $126,112, Zoubeck's report said.

Read more: http://www.njlawjournal.com/id=1202717423796/Judge-Adopts-Report-Calling-for-ERISA-Counsel-to-Pay-246K#ixzz3RHYk0Fsm

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NY Proposes Amendments that Could Provide Guidance on Confidentiality Issues Regarding Law Firm Mergers and Lateral Moves | Legal Ethics in Motion

NY Proposes Amendments that Could Provide Guidance on Confidentiality Issues Regarding Law Firm Mergers and Lateral Moves | Legal Ethics in Motion: "
by Janelly Crespo
The New York Bar Association’s rule-drafting committee could possibly provide additional guidance on confidentiality issues. On Dec 23, the N.Y. Bar’s Committee on Standards of Attorney Conduct (“COSAC”) issued drafts for amendments to the New York Rules of Professional Conduct in response to the changes made to the Model Rules of Professional Conduct by the ABA. Regarding confidentiality, COSAC did not recommend the new exception in Model Rule 1.6(b)(7), which permits attorneys to disclose client information in order to detect and resolve conflicts of interest in lateral moves or law firm mergers. However, COSAC concluded that New York attorneys needed additional guidance about restrictions on permissible disclosures during lateral moves or law firm mergers.
There are at least three significant differences between the ABA comments of Model Rule 1.6(b)(7) and the N.Y. proposals. First, the N.Y. Committee’s comments address the duty of confidentiality in the context of lateral moves and mergers, rather than addressing the scope of the exception of confidentiality.
Second, the report suggests good practices for when disclosures are permitted in the lateral moves and mergers context under the confidentiality rule.
Third, the proposed updates offer guidance on “disclosures of information needed to enable lawyers and law firms to assess the financial and strategic concerns relevant to going forward with a prospective lateral hire or a law firm merger.” On January 30, the report will be presented to the state bar House of Delegates and voting is expected to take place on March 28. Click here to read more."

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Uninsured Rate Drops to 8.4% Under Obamacare

Just what is the purpose of government if not to provide for the general welfare?
Isn't that just what the Affordable Care Act is doing?  Not that it's perfect - it doesn't cover enough people still.  And I would go for Medicare starting at 50.  Hell, I would go for a Scandinavian public health system. - gwc
Uninsured Rate Drops Under Obamacare:
 "By Dylan Scott // Talking Points Memo
 The percentage of uninsured Americans has fallen from 13.9 percent to 10.2 percent since Obamacare coverage took effect, according to new data from the Urban Institute. The difference is even more pronounced in states that expanded Medicaid under the law. In those states, the uninsured rate dropped from 12.6 percent to 8.4 percent from the second quarter of 2013 to the third quarter of 2014. In states that didn't expand Medicaid, the uninsured rate still fell but not quite as significantly: 16.3 percent to 12.5 percent."

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Ethics Case Over Facebook 'Friending' Can Proceed | New Jersey Law Journal

Ethics Case Over Facebook 'Friending' Can Proceed | New Jersey Law Journal: "Two New Jersey lawyers charged with ethics violations for their use of Facebook in defending a personal injury suit have lost their bid to derail the disciplinary action against them. On Feb. 3, an appeals panel in Robertelli v. New Jersey Office of Attorney Ethics upheld the dismissal of the lawyers’ declaratory judgment action against state ethics authorities for lack of subject matter jurisdiction, saying that only the state Supreme Court can decide whether the ethics case was properly brought. The lawyers, John Robertelli and Gabriel Adamo, allegedly had a paralegal “friend” personal injury plaintiff Dennis Hernandez on Facebook, according to court documents.
Hernandez filed an ethics grievance but the District Ethics Committee (DEC) saw no unethical conduct and declined to docket it, court documents said. Hernandez’s lawyer then wrote to the state Office of Attorney Ethics (OAE), which did its own investigation and wound up filing its own formal complaint. The OAE has charged Robertelli and Adamo with multiple violations of the Rules of Professional Conduct (RPCs), including prohibitions on communicating with someone who is represented by counsel; conduct involving dishonesty, fraud, deceit and misrepresentation; and conduct prejudicial to the administration of justice.
In addition, both lawyers are accused of failing to supervise a non-legal assistant and Robertelli, a partner with the Hackensack, N.J., office of Rivkin Radler, is accused of failing to supervise a subordinate lawyer, Adamo, who was then an associate at the firm. Robertelli and Adamo represented the Borough of Oakland, N.J., its police department and police sergeant Brian Coughlan in a suit by Hernandez, who claimed he was injured in 2007 when hit by a police car Coughlan was driving, according to court documents.  Hernandez, then 18, claimed he fractured his femur, requiring multiple surgeries.
According to the ethics complaint, Rivkin Radler paralegal Valentina Estela Cordoba was instructed to search the Internet for information about Hernandez and accessed his Facebook page at the direction of Robertelli and Adamo. The page was initially public, but when Hernandez tightened his privacy settings, Cordoba maintained her access by submitting a friend request, using her real name but without revealing that she worked for Rivkin Radler, the complaint says. The appeals court mentioned a video recording of Hernandez wrestling, that was later determined to have pre-dated the accident."

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11th Circuit Denies Alabama Stay of Same-sex Marriage Ruling

The United States Court of Appeals for the 11th Circuit has refused to stay a District Judge's order striking Alabama's state constitution's ban on same sex marriage. The order takes effect tomorrow.  It has been denounced by Chief Justice Roy S. Moore, in a public letter to Governor Robert Bentley, as a usurpation of state sovereignty. "The laws of this state have always recognized the Biblical admonition stated by our Lord:

But from the beginning of the creation God made them male and
female. For this cause shall a man leave father and mother, and cleave to his wife; And they twain shall be one flesh: so then they are no more twain, but one flesh. What therefore God hath joined together, let not man put asunder. (Mark 10:6-9)."

Moore was removed from office  in 2003 because he refused to obey an order to remove a Ten Commandments monument from the courthouse grounds.  Moore's bio page explains that the federal court order denied "the sovereignty of God".  He was again elected Chief Justice in 2012.

The ABA Journal reports that Alabama's filing asked the 11th Circuit to wait until the U.S. Supreme Court reaches a decision in a pending appeal, granted cert (PDF) on Jan. 16. That appeal which focuses on whether the 14th Amendment requires states to license same-sex marriages, and if it requires states to recognize same-sex marriages licensed out-of-state.

On Jan. 24, U.S. District Judge Ginny Granade found (PDF) that the Alabama Marriage Protection Act was unconstitutional. The case was filed on behalf of Cari Searcy and Kimberly McKeand, a same-sex couple who legally married in California. They now reside in Alabama, and want Searcy to adopt McKeand’s biological son, who is 8.

The Alabama attorney general’s office has said it will appeal the stay denial to the U.S. Supreme Court, the Alabama Media Group reports.- gwc

Eleventh Circuit Denies Alabama's Request for Stay of Same-Sex Marriage Ruling | Daily Report:

A federal appeals court panel on Tuesday denied the state of Alabama's request for a stay of court orders finding the state's ban on same-sex marriage unconstitutional.

The one-page order by judges Gerald Tjoflat, Frank Hull and Stanley Marcus rejected the stay request without discussion in a two-page order. Tuesday's ruling means gay couples may soon begin marrying in Alabama.

U.S. District Judge Callie V.S. Granade's orders, issued last month in favor of gay couples who had sued, said that the ban on same-sex marriage found in Alabama's constitution and statutory code violate the due process and equal protection clauses of the Fourteenth Amendment. She enjoined the state from enforcing the laws, but stayed her rulings until Feb. 9 to give the state a chance to ask the Eleventh Circuit to extend the stay while the appeals court considers any appeal.

In asking the Eleventh Circuit for a longer reprieve, Alabama's lawyers acknowledged the Eleventh Circuit already had denied a similar request by the state of Florida to pause a federal ruling declaring that state's same-sex marriage ban unconstitutional.

But Alabama argued that the Florida case was different because the federal judge hearing the Florida case already had put his ruling on hold for several months, giving officials an opportunity to prepare for its implementation. Moreover, Alabama's lawyers pointed out, the Florida stay request was denied by the Eleventh Circuit before the U.S. Supreme Court had agreed to consider whether the constitution requires recognition of same-sex marriage in a group of cases out of the Sixth Circuit, meaning any stay would last only a few months until the Supreme Court ruled. A stay would avoid the "chaos and confusion" that will result if same-sex marriages are temporarily legal in Alabama, but then not legal, Alabama's lawyers argued.

Read more: http://www.dailyreportonline.com/id=1202716890868/Eleventh-Circuit-Denies-Alabamas-Request-for-Stay-of-SameSex-Marriage-Ruling#ixzz3Qmf6PCss

NJ Supreme Court Considers Disgorgement Remedy for Disloyal GC // NJLaw Journal

In Kaye v. Rosefielde the Appellate Division of Superior Court held that a lawyer who worked as an independent contractor at the jobs of General Counsel and Chief Operating Officer had an implied attorney-client relationship with Kaye the principal of two Atlantic City businesses.  That subjected the lawyer to RPC 1.8 governing lawyers business involvements with current clients.
The App Div affirmed most of the trial judge's findings but limited the remedies.  Upheld were voiding the lawyer's interests in businesses he formed for the client, awarding counsel fees, and punitive damages. But Judge Nugent  denied the demand that the lawyer disgorge the $550,000/year he had been paid as in-house counsel and personal counsel.  Wages paid are not damages defendants have argued.

The New Jersey Supreme Court granted certification "limited to the issue of whether the Appellate Division erred by affirming the trial court's holding that economic damages are a necessary prerequisite for disgorgement of the employee's salary." - gwc

NJ Supreme Court Considers Disgorgement Remedy for Disloyal GC // NJLaw Journal

The New Jersey Supreme Court is considering whether proof of economic damages is necessary to disgorge two years’ worth of salary earned by a company’s general counsel in a case of legal malpractice and fraud.

The court heard arguments in the case, Kaye v. Rosefielde, on Feb. 3. At stake is whether plaintiff Bruce Kaye, the chief executive officer of Flagship Resort Condominiums, can recoup at least $1 million in salary from Alan Rosefielde, a New York tax attorney who served as both general counsel and chief operating officer for the company.

Kaye alleged that Rosefielde, who had set up three entities that gave him partial ownership in two of Kaye’s businesses, fraudulently enriched himself at Kaye’s expense, wasn’t licensed to practice in New Jersey and otherwise harmed the company, according to court documents.

Following a 2007 bench trial in Atlantic County, N.J., Superior Court Judge William Nugent ruled almost entirely in Kaye’s favor, finding malpractice, fraud and breach of fiduciary duty by Rosefielde, but he denied the demand for disgorgement.

The only compensatory damages awarded were $4,000 that Rosefielde had charged to the company for a junket to Las Vegas, plus legal fees on the malpractice claim under Saffer v. Willoughby to Kay’s firm, Jacobs & Barbone, of Atlantic City, N.J. The firm was awarded 75 percent of the $1.03 million in fees it requested, or $803,190. Nugent deducted 10 percent because Rosefielde successfully defended part of the malpractice claim, leaving a net fee award of $717,000.

The Appellate Division ruled, in a case of first impression, that a fee award in the legal malpractice context is akin to compensatory damages and thus may be the basis for a punitive damages award. However, the panel nevertheless struck down the $717,000 in fees and $250,000 in punitive damages that Nugent had awarded, and remanded to the trial court to reexamine whether those awards were warranted.

The appeals court did, however, affirm Nugent’s denial of a salary disgorgement. The Supreme Court then agreed to hear Kaye’s appeal on that issue.

Read more: http://www.njlawjournal.com/id=1202716913233/NJ-Justices-Consider-Disgorgement-for-GCs-Alleged-Disloyalty#ixzz3Qjn5jQCF

Youthful ignorance and vaccine freedom of choice

Dumb and dumber.  That is the conclusion to be drawn from a recent survey.  People my age remember the polio epidemic of the 1950's and the peace of mind that Jonas Salk's vaccine gave us.  A generation before me saw that the scourge of small pox was eliminated by vaccination. But the generations without that experience tilt increasingly toward the "freedom of choice" to which  Americans give much too much credence. - gwc

Evangelicals and white supremacy GOP Lifer

http://goplifer.com/2015/01/31/evangelicals-and-white-supremacy/

China IPR - Intellectual Property Developments in China | China: patents, trademarks, copyright, infringement, piracy, innovation policies

China IPR - Intellectual Property Developments in China | China: patents, trademarks, copyright, infringement, piracy, innovation policies: 
by Mark Cohen
"A program on January 28, 2015 at Brookings in DC, demonstrated how China indeed is “crossing the rule of law river by feeling the IP stones.” Two Chinese judges – Supreme Peoples Court Vice President Tao Kaiyuan and SPC No. Four Civil Tribunal Chief Judge Luo Dongchuan, gave an upbeat overview of China’s quickening pace of judicial legal reform which was deeply informed by their experience on IP matters. The presentation of Judge Tao is available on line."

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Defense Lawyers Must be Heard in Death Cases: China Supreme People's Court

Defense Lawyers Must be Heard in Death Cases: China Supreme People's Court

by CaoYin

China's top court will take the opinions of lawyers into consideration when handling reviews of death sentences.

The Supreme People's Court issued a guideline asking judicial officers to take defense lawyers' opinions into account when deciding whether or not to execute a convict, aiming to ensure decisions are more accurate and avoiding wrongful convictions.

Under the guideline, with 10 articles, lawyers can contact the court to read, copy and record cases other than those that cannot be disclosed due to legal restrictions.

The court must arrange for judges to meet attorneys applying for a face-to-face defense in a timely manner, the guideline said, adding that such talks should be undertaken in the Supreme People's Court and must be recorded.

The result of a review must be delivered to lawyers within five days of a decision being taken, it added.

The guideline will be effective from Feb 1.

In 2010, procedures for dealing with reviews of death sentences were regulated by the court. After negotiating with lawyers' associations and seeking their opinions, the court issued a guideline, hoping to clarify procedures and respecting lawyers' rights.

Now, the court has established reading rooms for lawyers to research cases. Those who cannot visit Beijing are permitted to read materials and share opinions in local courts.

The court added that the guideline will be more practical for both judges and lawyers to tackle cases relating to death sentence reviews. It is also seen as an effective solution to reduce wrongful verdicts.