Monday, April 22, 2019

SPC President Xiao Yang & internationalizing the Chinese judiciary | Supreme People's Court Monitor

Screenshot 2019-04-19 at 3.40.34 PM.png
When people ask me about law in China they are mostly skeptical that it means much at all.  Perfectly understandable since the word on the street here is that intellectual property theft is rampant, and violations of rights widespread - as in the compulsory Sinfication camps in the Uyghu Muslim autonomous region of Xinjiang.
But the Chinese courts have in the past 40 years been increasingly professionalized and law codified as one hundred fifty law schools educated two full generations of undergraduates in law.  As My experience with Chinese visiting scholars and LLM students is that the Chinese universities have done what we do here: teach people to "think like lawyers".
Susan Finder - Distinguished Scholar at Peking University's Transnational School of Law in Shenzhen discusses the role of the recently deceased President of the Supreme People's Court.  He played a key role in the internationalization of Chinese law and judiciary - an essential step for China to integrate itself into the world economy.  - gwc
SPC President Xiao Yang & internationalizing the Chinese judiciary | Supreme People's Court Monitor
by Susan Finder [Peking University School of Transnational Law (Shenzhen)]

***
I’d like to focus one small aspect of his work that likely won’t be considered important enough to be included in his obituaries in either the Chinese or foreign media–his vision, as SPC president, that internationalizing the education of Chinese judges would be beneficial to China. It was done because he was able to take the view at that time that learning about foreign law was beneficial:
In rule of law construction, it is not possible to close the door; copying and blinding transferring [what is done abroad] is not possible: therefore, as for foreign legal civilization, we must creatively absorb the content that conforms to the general principles of the rule of law according to our situation. In fact, a considerable part of our rule of law construction achievements in the past 40 years have been achieved on the basis of absorbing foreign advanced experience. When we formulated the General Principles of Civil Law, the Contract Law, the Property Law, and even the General Principles of Civil Law, we absorbed a lot of advanced concepts and systems from the civil law system and even the Anglo-American legal system. The principle of crime established in the Criminal Law of 1997 is also modern, contains commonalities with the modern rule of law.搞法治建设,关起门来不行,照搬照抄也不行;因此,对外国法律文明,我们要根据自身情况创造性地吸收借鉴那些符合法治一般规律的内容。事实上,四十年来我们的法治建设成就,有相当一部分是在吸收借鉴外国先进经验的基础上取得的。我们制定民法通则、合同法、物权法乃至民法总则时,就大量吸收了大陆法系甚至是英美法系的先进理念和制度;我们在1997年《刑法》中确立的罪刑法定原则,也正是现代法治中共通性的内容。[please feel free to make corrections to this translation]
He considered sending judges abroad an accomplishment that should be included in reports to the NPC:
  • More than 200 outstanding young and middle-aged judges have been selected from the national courts to study abroad and in the Hong Kong Special Administrative Region. More than 100 people have returned from their studies and become the backbone of foreign-related trial operations. (从全国法院选送200多名优秀中青年法官到国外和香港特别行政区进修深造,目前已有百余人学成归来,并成为涉外审判业务骨干.)(2002)
  • Continue to organize judges to study and exchange in the Hong Kong Special Administrative Region, the Macao Special Administrative Region, and abroad.(继续组织法官到香港特别行政区、澳门特别行政区以及国外学习交流。)

SPC Report Emphasizes Absolute Party Leadership and Xi Jin Ping Thought ~ Susan Finder

https://supremepeoplescourtmonitor.com/2019/04/22/signals-in-the-2019-supreme-peoples-court-work-report-to-the-npc/

Hong Kong~PRC Arbitration Accord Approved by SPC of PRC

https://www.lexology.com/library/detail.aspx?g=01dc0ebb-b220-401e-a3c8-8f88a083dc02

Sunday, April 21, 2019

Did Trump obstruct justice? Congress must determine that | Corey Brettschneider | Opinion | The Guardian

Did Trump obstruct justice? Congress must determine that | Corey Brettschneider | Opinion | The Guardian:
by Corey Brettschneider (Fordham Law School)
 If Congress finds enough evidence to support this claim, it is not only up to them to impeach and remove the president; it is up to future prosecutors to indict him.
In my view, the arguments for the current DOJ policy are so flawed that it should have been overridden. The indignity to the office comes from allowing a criminal president to continue to occupy it, not from indictments. And the idea that presidents are too busy to be indicted is simply false. The constitutionally enshrined impeachment process is also time-consuming. And as the example of President Clinton’s subpoenaed testimony in Clinton v Jones made clear, presidential schedulers can figure out how to balance a president’s responsibilities as chief executive with his participation in a legal proceeding. The failure to indict the president on obstruction was Barr’s responsibility, not Mueller’s. And in light of Barr’s heavily partisan pre-release press conference, this failure is both predictable and regrettable.

John Roberts and the decline of democracy. Charles Kaiser ~ Guardian

The Chief review: John Roberts and the decline of American democracy https://www.theguardian.com/law/2019/apr/21/the-chief-john-roberts-supreme-court-justice-joan-biskupic?CMP=Share_AndroidApp_Blogger

Thursday, April 18, 2019

Robert Mueller let Donald Trump Jr. off the hook too easily. - Rick Hasen - Slate

Robert Mueller let Donald Trump Jr. off the hook too easily
Slate
by Rick Hasen (UCLA)

The redacted Mueller Report and the Executive Summaries

It's a beige wash, not a whitewash.  Robert Mueller - the brave soldier - the all business FBI Director - was a wimp when it came to Trump.  didn't even issue a subpoena to compel Trumpolini to testify.
The redacted Mueller Report
Searchable!  Thank you Bloomberg!

And The Executive Summaries
Thank you Lawfare

Helvetica

I'm a Georgia fan, hate courier, think Tahoma is OK.  But as a subway rider, gotta hand it to Helvetica. ~gwc

Loved and loathed, iconic Helvetica font enters a new era https://www.bostonglobe.com/business/2019/04/17/loved-and-loathed-iconic-helvetica-font-enters-new-era/dBwf6YWjbkvKsTYmGrN4mJ/story.html

Tuesday, April 16, 2019

Congrats to Pulitzer Prize-wining WSJ team for TRUMP’S HUSH MONEY

TRUMP’S HUSH MONEY - WSJ: Key articles from The Wall Street Journal’s investigation of the president’s role in secret payoffs.
Very proud of Michael Rothfeld, father of two of my granddaughters, and member of the Pulitzer Prize winning WSJ team for Trump’s Hush Money: Key stories from The Wall Street Journal’s investigation of the president’s role in secret payoffs.

Barr’s Playbook: He Misled Congress When Omitting Parts of Justice Dep’t Memo in 1989 - Just Security

As soon as William Barr's name appeared as possible Attorney General Beltway-insider and old school ties syndrome began to seep into the commentary of normally level-headed commentators (names omitted to protect the guilty).  NYU's Ryan Goodman tells a story  that shows that Barr is a con artist, rather than the "rule of law" DOJ man that many serious commentators told us. - GWC

Barr’s Playbook: He Misled Congress When Omitting Parts of Justice Dep’t Memo in 1989 - Just Security: When Bill Barr was head of Office of Legal Counsel, he gave Congress the legal conclusions and reasoning of an important Justice Department memo but left out major portions of it. When the full memo was finally released nearly two years later it was clear what Barr had covered up, writes Ryan Goodman.


On Friday the thirteenth October 1989, by happenstance the same day as the “Black Friday” market crash, news leaked of a legal memo authored by William Barr. He was then serving as head of the Justice Department’s Office of Legal Counsel (OLC). It is highly uncommon for any OLC memo to make headlines. This one did because it was issued in “unusual secrecy” and concluded that the FBI could forcibly abduct people in other countries without the consent of the foreign state. The headline also noted the implication of the legal opinion at that moment in time. It appeared to pave the way for abducting Panama’s leader, Gen. Manuel Noriega.
Members of Congress asked to see the full legal opinion. Barr refused, but said he would provide an account that “summarizes the principal conclusions.” Sound familiar? In March 2019, when Attorney General Barr was handed Robert Mueller’s final report, he wrote that he would “summarize the principal conclusions” of the special counsel’s report for the public.
When Barr withheld the full OLC opinion in 1989 and said to trust his summary of the principal conclusions, Yale law school professor Harold Koh wrote that Barr’s position was “particularly egregious.” Congress also had no appetite for Barr’s stance, and eventually issued a subpoena to successfully wrench the full OLC opinion out of the Department.
What’s different from that struggle and the current struggle over the Mueller report is that we know how the one in 1989 eventually turned out.
When the OLC opinion was finally made public long after Barr left office, it was clear that Barr’s summary had failed to fully disclose the opinion’s principal conclusions. It is better to think of Barr’s summary as a redacted version of the full OLC opinion. That’s because the “summary” took the form of 13 pages of written testimony. The document was replete with quotations from court cases, legal citations, and the language of the OLC opinion itself. Despite its highly detailed analysis, this 13-page version omitted some of the most consequential and incendiary conclusions from the actual opinion. And there was evidently no justifiable reason for having withheld those parts from Congress or the public.

Monday, April 15, 2019

Opinion | Brent Staples’s Pulitzer Prize-Winning Work at The Times - The New York Times

Opinion | Brent Staples’s Pulitzer Prize-Winning Work at The Times - The New York Times: The editorial board member’s work tackled head-on the uncomfortable truths about race in America.

CREW Calls for Release of Full Mueller Report, Citing Barr’s Conflicts - CREW

CREW Calls for Release of Full Mueller Report, Citing Barr’s Conflicts - CREW: Barr's conflicts include his involvement with President Trump’s legal team, as well as his 19-page memo criticizing a possible obstruction charge.
Washington—The only appropriate way to address Attorney General William Barr’s potential conflicts of interest and apparent lack of impartiality is for the Department of Justice (DOJ) to release Special Counsel Robert Mueller’s report in its entirety, according to a request sent today to DOJ by Citizens for Responsibility and Ethics in Washington (CREW).
CREW’s letter raises potential conflicts of interest for Barr, including his involvement, while in private practice, with President Trump’s White House legal team, Trump’s personal lawyers, and lawyers who represented likely subjects of Special Counsel Mueller’s investigation, as well as Barr’s 19-page legal memo criticizing possible obstruction of justice charges against the President written before he was nominated to be our country’s top law enforcement officer.
The letter further critiques Barr’s decision to issue a four-page summary on the Mueller report: “Your subsequent decision as Attorney General to release a four-page summary in which you conclude that President Trump did not obstruct justice further contributed to the impression that you prejudged the matter based on your prior involvement and undermines public confidence in DOJ’s decision-making process,” the letter reads. “This action appeared to be an attempt to skew public opinion in advance of the full release of the report. Your actions in this matter have already damaged the public’s trust in your service as Attorney General on a matter with national security implications.”
“After 215 criminal charges, 38 indictments or pleas, five prison sentences, 500 search warrants, 2800 subpoenas, and 13 requests to foreign governments for evidence, there is overwhelming public interest in the Special Counsel Report,” CREW Executive Director Noah Bookbinder said in the letter. “The American people are entitled to full transparency into the Russian government’s attack on the 2016 Presidential election process, any established links between the Russian government and individuals associated with the Trump campaign, and any actions taken by President Trump to obstruct the related federal investigations.”

Notre Dame - nous la rebatirons. Tous ensemble. - Macron

“Notre Dame is our history, our literature, part of our psyche, the place of all our great events, our epidemics, our wars, our liberations, the epicentre of our lives ... So I solemnly say tonight: we will rebuild it together.” - Emmanuel Macron



Thousands of Parisians – many weeping and some praying – watched as vast orange flames soared from the roof for hours, threatening one of the greatest architectural treasures of the western world. There were gasps on the southern bank of the river Seine as locals watched fire sweep across the roof, which slowly caved in.


Hints, but no proof of crime, in Mueller's hunt for a Trump-Russia conspiracy - Reuters

The hunt for a Democrat at the FBI must evoke Greek mythology, so it was inevitable that we would be dependent on types like Comey.  And we were Mueller and Rosenstein never even tried to depose Trump or call him before a Grand Jury. (Remember how that worked out for Bill Clinton?)  Maybe he figured that with the deck stacked at SCOTUS it was pointless.  But what was the harm in trying? 
Hints, but no proof of crime, in Mueller's hunt for a Trump-Russia conspiracy - Reuters: As recently as February, Special Counsel Robert Mueller's team dropped hints that the inquiry into Russia's role in the 2016 U.S. election might unearth evidence of active cooperation between Moscow and President Donald Trump's campaign.

Sunday, April 14, 2019

How the Great Leftist Thinkers of the 20th Century Contended With Zionism - The New York Times

How the Great Leftist Thinkers of the 20th Century Contended With Zionism - The New York Times: In “The Lions’ Den,” Susie Linfield tours the minds of eight thinkers, including Hannah Arendt and Noam Chomsky, investigating their relationship to the Jewish state.
Reviewed by J.J. Goldberg
"“The Lions’ Den” illustrates the individual struggles of Jewish leftists in the World War II generation to reconcile their conflicting impulses, the particularist pull of Zionism and the universalist pull of socialism. Their stories precisely anticipate the tension today’s Jewish liberals experience trying to reconcile their own pro-Israel particularism and their social-justice universalism."

Saturday, April 13, 2019

Pete Buttigieg reacts to Trump incitement against Rep. Ilhan Omar




Benedict's Letter is a Regrettable Text - Michael Sean Winters - National Catholic Reporter

Why was there no one to protect the retired Pope Joseph Ratzinger from this damaging text?
by Michael Sean Winters //National Catholic Reporter

When a friend first sent me Pope Emeritus Benedict's article about the root causes of clergy sex abuse, I thought the text was a hoax. Here, it seemed, was a caricature of both Joseph Ratzinger's once powerful intellect and of conservative explanations for the sex abuse crisis. Apparently the text is authentic, so we must search for other reasons why it gets so much wrong — and so much that the retired pope would know is wrong. Let us examine the difficulties with this text.
First and foremost, Benedict knows as few others do, that the crisis is a double affliction: There is the fact of the abuse and the fact of that abuse being covered up. Nowhere in this text does he explore the second affliction. Yet he knows that when, as Cardinal Prefect of the Congregation for the Doctrine of the Faith, he completed his investigation into the evil deeds of Fr. Marcial Maciel, no action was taken against this most horrible of perpetrators. He would have known about the allegations leveled against then-Archbishop Theodore McCarrick before his promotion to the Archdiocese of Washington and to the cardinalate, and that those allegations were unanswered or ignored. He knew the circumstances that forced Cardinal Bernard Law to resign his see and spend the rest of his life occupying a sinecure in Rome. Why no mention of any of this? 

Friday, April 12, 2019

The Islamophobic Republican Backlash Against Ilhan Omar

The Islamophobic Republican Backlash Against Ilhan Omar: Representative Ilhan Omar of Minnesota is one of the first two Muslim women in Congress. She’s also facing Islamophobic attacks from detractors accusing her of anti-Semitism, disloyalty to the U.S., and of trivializing the 9/11 terrorist attacks.
By 

Maya and Kamala Harris - tag team TPM

https://talkingpointsmemo.com/dc/maya-harris-sister-kamala-harris-campaign-chairman

The mower by Philip Larkin

Check out @chowleen’s Tweet: https://twitter.com/chowleen/status/1116314920906158080?s=09

Thursday, April 11, 2019

Finra prescribes candor re departing brokers

https://advisorhub.com/finra-prescribes-candor-in-discussing-departing-brokers/

Retiring as a Judge, Trump’s Sister Ends Court Inquiry Into Her Role in Tax Dodges - The New York Times

Retiring as a Judge, Trump’s Sister Ends Court Inquiry Into Her Role in Tax Dodges - The New York Times: Maryanne Trump Barry faced complaints of judicial misconduct after a New York Times investigation found she had engaged in fraudulent tax schemes with her siblings.
by Russ Buettner and Susanne Craig
President Trump’s older sister, Maryanne Trump Barry, has retired as a federal appellate judge, ending an investigation into whether she violated judicial conduct rules by participating in fraudulent tax schemes with her siblings.
The court inquiry stemmed from complaints filed last October, after an investigation by The New York Times found that the Trumps had engaged in dubious tax schemes during the 1990s, including instances of outright fraud, that greatly increased the inherited wealth of Mr. Trump and his siblings. Judge Barry not only benefited financially from most of those tax schemes, The Times found; she was also in a position to influence the actions taken by her family.
Judge Barry, now 82, has not heard cases in more than two years but was still listed as an inactive senior judge, one step short of full retirement. In a letter dated Feb. 1, a court official notified the four individuals who had filed the complaints that the investigation was “receiving the full attention” of a judicial conduct council. Ten days later, Judge Barry filed her retirement papers.
The status change rendered the investigation moot, since retired judges are not subject to the conduct rules. The people who filed the complaints were notified last week that the matter had been dropped without a finding on the merits of the allegations. The decision has not yet been made public, but copies were provided to The Times by two of the complainants. Both are involved in the legal profession.

Demonizing Iran. Lobelog

https://lobelog.com/demonizing-and-dehumanizing-iran/

Wednesday, April 10, 2019

Tuesday, April 9, 2019

Barr confusion re ACA in his testimony

https://www.vox.com/policy-and-politics/2019/4/9/18302270/bill-barr-testimony-obamacare-house-lawsuit

Moving Alabama Into the Modern Age - The New York Times


The stars lined up for Doug Jones - the man who finally successfully prosecuted the perpetrator of one of  the most heinous crimes of the modern civil rights movement.  He finds himself in the United States Senate - a precarious spot given the white racist political domination of Alabama,  Howell Raines, himself an Alabaman, reviews Jones book about his legendary quest for justice. - gwc
Moving Alabama Into the Modern Age - The New York Times:
Review by Howell Raines March 26, 2019

BENDING TOWARD JUSTICE The Birmingham Church Bombing That Changed the Course of Civil Rights 
By Doug Jones 

 As he fell behind an accused sexual predator in returns from Alabama’s 2017 Senate election, Doug Jones admits, he allowed himself an almost “unbearable” lament familiar to thousands of frustrated Alabamians who came of age in the George Wallace era: “Oh, my poor home state.” Near midnight, it appeared that Jones’s pistol-waving opponent, the former Alabama Supreme Court justice Roy Moore, would join the century-long parade of reactionary buffoons Alabama’s white majority has sent to Congress and the governor’s mansion.

 But in the final count for that Dec. 12 election, a cresting wave of modern sentiment among black voters and white women in the state’s rich Republican suburbs handed Jones a 22,000-vote victory, making Alabama the last state of the old Confederacy to join the New South. It was the biggest upset in Alabama political history, especially given Jones’s background as a successful prosecutor of Ku Klux Klansmen who perpetrated the signature civil rights crime of the 1960s, the fatal bombing of the 16th Street Baptist Church in Birmingham.  KEEP READING

How Tough-on-Crime Prosecutors Contribute to Mass Incarceration - The New York Times

How Tough-on-Crime Prosecutors Contribute to Mass Incarceration - The New York Times: 
Book Review:
CHARGED The New Movement to Transform American Prosecution and End Mass Incarceration 
 By Emily Bazelon 
 If you aspired to high office in the 20th and early 21st centuries, this was sound advice: Get thee to a prosecutor’s office. Politicians from both parties, from Democrats like John Kerry to Republicans like Rudolph Giuliani, parlayed prosecutorial perches into political power and nationwide fame. The basic recipe for using a prosecutor’s post as a springboard into politics required being “tough on crime,” protecting the public by putting criminals behind bars. 

The vast majority of state and local prosecutors in the United States are elected, and taking a punitive tack was generally considered to be the path to re-election — and, frequently, election to higher office. Prosecutors had strong incentives to be harsh rather than lenient (or merciful) when dealing with defendants, and those incentives helped shape the criminal justice system as we know it today. 

In the words of the law professor and historian Jed Shugerman, a scholar of prosecutors turned politicians: “The emergence of the prosecutor’s office as a steppingstone for higher office” has had “dramatic consequences in America.....
KEEP READING

China: E-Commerce Law in Effect Since January 2019 | Global Legal Monitor

Image result for china intellectual property court
China: E-Commerce Law Passed | Global Legal Monitor: (November 21, 2018)
According to the PRC E-commerce Law,  (Zhonghua Renmin Gongheguo Dianzi Shangwu Fa) if an intellectual property (IP) rights holder believes that an operator on a platform has infringed its IP rights, the IP rights holder may notify the platform operator and request the latter take necessary preliminary measures, such as deleting or screening information about the alleged infringement, disconnecting the relevant webpages, or terminating the transaction or service. If the platform operator fails to promptly take the necessary preliminary measures upon receiving the notice, it is jointly and severally liable for additional damages along with the operator on the platform. (E-commerce Law art. 42; Beckett & Ge, supra.)
Whenever the platform operator knows or should have known that an operator on the platform has infringed others’ IP rights but fails to take the necessary preliminary measures, the platform operator is jointly and severally liable for all damages caused. (E-commerce Law art. 45; Beckett & Ge, supra.)
A platform operator that has failed to fulfill the abovementioned responsibilities and make corrections as ordered by the government IP authority within a specified time period is also punishable by a fine ranging from 50,000 yuan to 2 million yuan. (E-commerce Law art. 84.)
According to the Law, “electronic commerce” includes all business activities of selling goods or providing services though information networks such as the internet, with the exception of financial products and services and services that provide news, audio and video programs, publications, or cultural products. (Id. art. 2.)
The Law defines three types of “e-commerce operators”:
(1) platform operators, referring to any legal persons or unincorporated organizations that provide virtual places of business, transaction matching, information release, and other services to the parties of an e-commerce transaction to enable them to carry out independent transaction activities
(2) operators on platforms, referring to e-commerce operators that sell goods or provide services to customers through e-commerce platforms
(3) other e-commerce operators, referring to e-commerce operators selling goods or providing services through self-established websites or channels other than the platforms

Kyle Korver, NBA star on race

https://www.theplayerstribune.com/en-us/articles/kyle-korver-utah-jazz-nba

Barr the Redactor? Marty Lederman ~ Just Security

https://www.justsecurity.org/63523/barr-the-redactor/

Georgetown law prof Marty Lederman exhaustively reviews the issues regarding withholding of the Mueller report from Congress.
The grounds for redaction are very narrow and do NOT require opening an impeachment investigation.

Monday, April 8, 2019

Subservient Barr – Talking Points Memo




I have long been disturbed by the old school ties/beltway insider/DOJ rule of law club as a corruptible culture.  We see, for example that the Department of Justice has virtually insulated its lawyers from discipline by anyone outside the Department - not surprising because the same is true for prosecutors and cops just about everywhere.

But post nomination weak-kneed responses to Brett Kavanaugh and William Barr were particularly noticeable among prominent "responsible" commentators and academics.  As time goes on we see that Barr prostrated himself before Trump to get the job and that thee are no signs that will change.

Meanwhile dozens of misconduct complaints against Brett Kavanaugh have been swept from the table by the Chief Justice. Boys will be boys, I guess. - gwc

Subservient Barr – Talking Points Memo

by Josh Marshall

As we await Bill Barr’s ‘redactions’ of the Mueller Report, I wanted to pass on to you this note from a TPM Reader and member of the appellate bar. It may seem deep in the weeds at first. But it’s a window into Barr’s conduct so far that I was not at all aware of, or rather I knew the bare facts but hadn’t at all understood the implications. They bear directly on Barr’s subservience to the White House and current approach to executive power …
The focus on Barr and what he has done/is doing regarding the report has been fantastic.
But there is another, overlooked data point that makes clear that we should be very suspicious about how Barr approaches his responsibilities as AG – including his redactions to the Mueller report and his supervision of the ongoing Trump investigations in the Southern District of New York and elsewhere.
The Administration’s decision a few weeks ago to change its position and argue that the entire Affordable Care Act is unconstitutional didn’t get the attention it deserves. It is a shocking breach of the Justice Department’s duty to make reasonable arguments in support of the constitutionality of federal laws. There many such reasonable arguments in support of the ACA – as numerous conservative scholars have explained in blog posts and briefs since the DoJ announcement; it is the position that the Administration is now endorsing that is entirely unreasonable.
The New York Times’ reporting indicated that AG Barr opposed this change in position. But he appears perfectly willing to carry it out. That tells us a number of things, all of them disturbing.
First, AG Barr is not going to do very much to defend key Justice Department norms against assaults by the White House. Barr’s nomination was greeted with relief by many, who believed he would restore the old DoJ norms.
But his willingness to go along without a whimper with a fundamental breach of a longstanding DoJ norm shows that just isn’t true. Sometime between now and May 1 (when the DoJ brief is likely due), Barr will have to send a letter to Congress repudiating Jeff Sessions’ determination just last June that most of the ACA is constitutional; in other words, that Sessions was willing to make unreasonable arguments to defend the ACA.
The change in position is the minor part of the story. Sessions’ position was bad enough, and Barr’s willingness to compound the damage to DoJ norms and principle creates a serious threat to the rule of law, as Professor Nick Bagley explained in detail in a Times op-ed. It effectively gives the Executive Branch an extra-constitutional veto, exercisable at any time, which can be checked by the courts only if another litigant has legal standing to defend a law the administration is willing to throw overboard.

Sunday, April 7, 2019

Fact and Fiction on Trump’s Tax Returns – Whatever Source Derived – Medium

Fact and Fiction on Trump’s Tax Returns – Whatever Source Derived – Medium:
by Daniel Hemel(U.Chicago Law School)
 President Trump’s personal attorney, William Consovoy, sent a letter to the Treasury Department’s general counsel on Friday arguing that House Ways and Means Chairman Richard Neal “cannot legally request — and the IRS cannot legally divulge” — the president’s tax returns. The letter gets a couple of things right and other things very wrong.
First, Consovoy is correct that 26 U.S.C. § 6103(f), the once-obscure 1924 statute that everyone is now talking about, does not resolve the present controversy. Section 6103(f) says that upon written request from the House Ways and Means chair or his Senate Finance Committee counterpart, the Treasury secretary “shall furnish such committee with any return or return information specified in such request.” But that is not the end of the story.
As Andy Grewal and others have (rightly) noted, § 6103(f) cannot extend any further than Congress’s legislative power. While “[t]he power to conduct investigations is inherent in the legislative process,” it is “not unlimited.” See Watkins v. United States, 354 U.S. 178, 187 (1957). For one thing, “[t]here is no general authority to expose the private affairs of individuals without justification in terms of the functions of the Congress.” Id. Thus, a § 6103(f) request — like any investigative step by a congressional committee — “must be related to, and in furtherance of, a legitimate task of Congress.” Id. Second, § 6103(f) — like every other statute — is limited by the Bill of Rights. Congress cannot, for example, compel a witness to incriminate herself. See id. at 188.
On its face, Chairman Neal’s request satisfies the “legitimate task” test. “The power of the Congress to conduct investigations … encompasses inquiries concerning the administration of existing laws as well as proposed or possibly needed statutes.” Watkins, 354 U.S. at 187. As Chairman Neal’s letterexplains, the Ways and Means Committee “is considering legislative proposals and conducting oversight related to … the extent to which the IRS audits and enforces the Federal tax laws against a President.” This is a serious concern. The president is the head of the executive branch; the IRS is part of the executive branch; and those two facts alone lead to worries that the IRS will show favoritism in its examination of its boss’s returns. Recognizing this risk, the IRS has established an internal procedure for review of the president’s (and vice president’s) tax returns, but this procedure appears to have two significant shortcomings. First, it does not appear to apply to returns filed by the president before his inauguration that are still under audit while he is in office. (As of March 2016, the IRS was still examining Trump’s returns from 2009 onwards.) Second, it does not appear to apply to returns filed by business entities and trusts controlled by the president. It’s entirely legitimate for the Ways and Means Committee to evaluate whether the Service’s examinations of Trump’s pre- and post-presidential personal and business returns have been tainted by favoritism (or, possibly, by animus) and, if so, whether there is anything that Congress should do about that legislatively.

Saturday, April 6, 2019

ABA: Immigration Courts face existential crisis - system "irredeemably " dysfunctional



The broad outlines of the immigration crisis are plain: several Central American nations are in deep crisis, spurring thousands  to seek refuge in a no longer hospitable United States of America. An autarchic President, elected in large part on his hostility to such migrants, has narrowed the grounds for amnesty, rejected the DACA policy of regularization of young immigrants who unlawfully entered the U.S., embraced punitive policies, and refused to take measures to assure a functional system of immigration courts.

The American Bar Association Commission on Immigration - for which the Washington, D.C. firm Arnold & Porter has long played a leading role - in its 2019 report describes a system of justice that scarcely deserves the name:
The imposition of individual case production quotas and time-based deadlines tied to an immigration judge’s performance evaluation is “unprecedented”and has been widely criticized. Although proponents of the case production quotas view the requirement as a necessary step towards reducing case backlog, critics have denounced the move, arguing that it will undermine judicial independence, expose judges’ decisions to additional legal challenge, create additional backlog, and ultimately threaten due process.
***
The immigration courts are facing an existential crisis. The current system is irredeemably dysfunctional and on the brink of collapse, and the only way to resolve the serious systemic issues within the immigration court system is through transferring the immigration court functions to a newly-created Article I court. This approach is the best and most practical way to ensure due process and insulate the courts from the capriciousness of the political environment. It is further our view that the public’s faith in the immigration court system will be restored only when the immigration courts are assured independence and the fundamental elements of due process are met.

ABA 2019 report reforming_the_immigration_system

Friday, April 5, 2019

15 Years After the Iraq Invasion, What Are the Costs? | Portside


Image result for iraq mosul

My stomach knots every time I hear someone say "thank you for service".  The though in my mind, is "I am really sorry that you went through that and ashamed of what we inflicted on the Iraqis."

I thought the attacks on al-Qaida justified but why the hell did we think that we would do better than the Soviets did there.  I think our chances were worse from the first.  The Soviets at least had a local communist party with a real base.  We have the opium traders and some of the clans some days. - gwc

15 Years After the Iraq Invasion, What Are the Costs? | Portside

This March marked the 15th anniversary of the U.S.-led invasion of Iraq.
In 2003, President George W. Bush and his advisers based their case for war on the idea that Saddam Hussein, then dictator of Iraq, possessed weapons of mass destruction — weapons that have never been found. Nevertheless, all these years later, Bush’s “Global War on Terror” continues — in Iraq and in many other countries.
It’s a good time to reflect on what this war — the longest in U.S. history — has cost Americans and others around the world.
First, the economic costs: According to estimates by the Costs of War project at Brown University’s Watson Institute for International and Public Affairs, the war on terror has cost Americans a staggering $5.6 trillion since 2001, when the U.S. invaded Afghanistan.
$5.6 trillion. This figure includes not just the Pentagon’s war fund, but also future obligations such as social services for an ever-growing number of post-9/11 veterans.
It’s hard for most of us to even begin to grasp such an enormous number.
It means Americans spend $32 million per hour, according to a counter by the National Priorities Project at the Institute for Policy Studies.
Put another way: Since 2001, every American taxpayer has spent almost $24,000 on the wars — equal to the average down payment on a house, a new Honda Accord, or a year at a public university.




No Exit Strategy, an OtherWords cartoon by Khalil Bendib

As stupefying as those numbers are, the budgetary costs pale in comparison with the human toll.
As of 2015, when the Costs of War project made its latest tallies, up to 165,000 Iraqi civilians had died as a direct consequence of U.S. war, plus around 8,000 U.S. soldiers and military contractors in Iraq.
Those numbers have only continued to rise. Up to 6,000 civilians were killed by U.S.-led strikes in Iraq and Syria in 2017 –– more civilians than in any previous year, according to the watchdog group AirWars.
In addition to those direct deaths, at least four times as many people in Iraq have died from the side effects of war, such as malnutrition, environmental degradation, and deteriorated infrastructure.

Thursday, April 4, 2019

New Jersey Solo Practitioner Ordered to pay $89,000 sanction for deficient pleadings // NJ Law Journal

New Jersey Solo Practitioner Ordered to pay $89,000 sanction for deficient pleadings // NJ Law Journal
by Charles Toutant
A federal judge has ordered a lawyer to reimburse Camden County $89,234 in legal fees for pursuing a discrimination suit after the court deemed it factually and legally frivolous.
Senior U.S. District Judge Jerome Simandle ordered Sewell attorney Cheryl Cooper on Thursday to pay that amount for her representation of John Sosinavage, a former lieutenant in the Camden Police Department. Sosinavage lost his job when that department was disbanded in 2013 and the Camden County Police Department began serving the city.
Cooper was sanctioned in February for failing to withdraw or correct her deficient pleadings even after receiving notice that those claims were not supported by facts. At that time, Simandle said Cooper pursued the failure-to-hire claim for more than three years against the county “that she knew or should have known was factually and legal frivolous, despite clear warning of precisely these deficiencies in 2015.”
Cooper sued Camden County, Police Chief Scott Thomson and two deputy chiefs, claiming Sosinavage suffered discrimination based on age, protected First Amendment activity or both, when he was not invited to apply to the Camden County Police Department while his name appeared on a statewide list of laid-off public employees. He also sued the city of Camden.
But Sosinavage testified at a deposition that he received a job application for the Camden County Police Department and instructions on how to apply by email, and that he made a conscious decision not to submit the application. Sosinavage also testified that he told others he did not want to work for the Camden County Police Department, and would not accept a position if offered a job there.
Simandle dismissed the county defendants in May 2018.
Simandle, noting that Cooper is a solo practitioner and might have limited financial resources to pay the county defendants for the fees they incurred in the case, invited her Feb. 8 to submit an affidavit addressing her ability to pay. She failed to do so.
Simandle said Cooper could submit the affidavit under seal, as long as a copy was provided confidentially to the county’s lawyer, Christine O’Hearn of Brown & Connery in Westmont. But Cooper failed to submit any such affidavit.

FLORIDA SUPREME COURT REJECTS ADEQUACY CLAIMS – SchoolFunding.Info

FLORIDA SUPREME COURT REJECTS ADEQUACY CLAIMS – SchoolFunding.Info:
School Funding Info is a project of Teachers College
In a close 4-3 decision in which the deciding judge joined in the result but not the opinion of his colleagues, the Florida Supreme Court earlier this month rejected a ten- yearlong attempt by public school students, parents and citizen organizations to have the state’s education finance system declared unconstitutional. Citizens for Strong Schools, Inc v. Florida State Board of Education.
The Florida constitution provides that education is “a paramount duty” of the state and requires that “[a]dequate provision” shall be made by law for a “high quality” education system. The plurality ruled that these terms do not provide “any manageable” standard for the court to use in assessing the adequacy of the amount of funding that the schools receive. The Court rejected plaintiffs’ position that the state’s educational standards provide such a standard, because
Adopting State standards as constitutional minima would have the perverse effect of encouraging the weakening of curriculum standards in order to achieve the higher passage rates and to satisfy court-imposed requirements.
The plurality decision also refused to consider decisions from other states that had found that less robust language in their constitutions provides judicially manageable standards. The Court did, however, note that this case was a broad, blanket challenge to the entire state school funding system, and it left open the possibility that a “challenge to a specific program or a specific funding issue” could be subject to judicial review.
Justice Barbara Pariente, writing for and two other dissenting justices, set forth a definition of “high quality” that she asserted would provide judicially manageable standards for the purposes of this case. She wrote that “high quality” means:
…an education system that allows all students an equal opportunity to learn the core content knowledge set by the State and become knowledgeable and engaged adults.
In response to the plurality’s view that the state’s educational standards could not provide a manageable constitutional standard, Justice Pariente stated that:
If the State were to intentionally adopt low standards to achieve higher pass rates, those standards could be challenged as a violation of the State’s constitutional obligation to provide a “high quality” education. Simply because Petitioners in this case do not challenge the standards set by the State does not render their claim non-justiciable.
In a separate dissent, Justice R. Fred Lewis regretted the “depth of injury” that the majority was inflicting upon Florida’s school children. He bluntly stated that courts sometimes “throw up justiciability barricades only to avoid the difficult or complex cases, taking the easy way out by using excuses to defer the decision of a case to a legislative body.” He opined that because of the majority decision in this case, the “words describing the right to a high quality education and the constitutional concept of protecting that right ring hollow without a remedy to protect that right.”

Wednesday, April 3, 2019

Trump is capturing the federal judiciary ~ Shira Scheindlin

Trump is capturing the judiciary at an alarming rate https://www.theguardian.com/commentisfree/2019/apr/03/trump-capturing-judiciary-alarming-rate?CMP=Share_AndroidApp_Blogger

Tuesday, April 2, 2019

New Jersey Courts See Long-Term Plunge in All Filings | New Jersey Law Journal

New Jersey Courts See Long-Term Plunge in All Filings | New Jersey Law Journal
by Charles Toutant // NJ Law Journal
Fewer lawsuits are being filed in New Jersey state courts, a trend that’s persisted for at least a decade and is sparking fears the judicial system is becoming irrelevant for segments of the population.
New Jersey courts saw 815,922 cases filed in the civil, criminal and family divisions in 2018, which represents a marginal increase from 2017′s filing level. But more significantly, that’s still a 28 percent decline from the number of cases filed in 2008.
Filings of civil suits in New Jersey increased slightly in 2016 and 2017 but still declined 29 percent from 2008 to 2018. Meanwhile, criminal filings declined 23 percent and family court filings fell 28 percent in the past decade. In the same period, New Jersey’s population grew roughly 3 percent, from 8.6 million people to 8.9 million.
Some legal experts say the decrease indicates courts are failing their constituents. Those experts have also said it’s time to change the ways court systems go about their business.
Richard Schauffler of the National Center for State Courts said that a decline in filing volume, and resultant notions that courts are outliving their usefulness, are cause for concern.
“Courts exist to ensure that asymmetries of power do not dictate the outcome of disputes,” he wrote. “Making the best use of available resources and deploying them in the public interest requires that courts ask. What cases belong in court? How might we adjudicate those cases effectively and efficiently, in the eyes of those seeking justice? Courts need to sort out what factors they can influence (e.g., delay and costs that discourage civil litigation) from those they cannot (the divorce rate) and focus on improving the adjudication of cases that belong in court.”

Budd Larner Tech Officer Charged With Bilking Law Firm for Nearly $1M | New Jersey Law Journal

Budd Larner Tech Officer Charged With Bilking Law Firm for Nearly $1M | New Jersey Law Journal
The chief technology officer of New Jersey-based law firm Budd Larner has been accused of stealing nearly $1 million over the course of a number of years, according to documents filed in two interconnected suits in the U.S. District Court for the Southern District of New York.
An indictment brought by the U.S. Attorney’s Office for the Southern District of New York that was unsealed in early February charged the Budd Larner CTO Rocco Romeo and a co-defendant, Jacqueline Galler, with four criminal counts, including wire fraud and money laundering-related charges.
According to the prosecutors, the unnamed New Jersey-based company had been defrauded by Romeo through a sophisticated system of falsified invoices, fake companies and conspicuous efforts to conceal the alleged scheme that cost the firm $900,000 over three years.
The scheme, prosecutors claim, started with Romeo receiving invoices generated by a company that went by several versions of the name Seventech. The invoices were routed through two online payment platforms, FreshBooks and PayPal, and sent directly to Romeo.
When asked by Budd Larner about the nature of the company, Romeo allegedly painted the company as a Silicon Valley tech firm with employees operating under a nondisclosure agreement with former employers. This, prosecutors say Romeo claimed, was why all communications need to go through him directly.
In fact, federal authorities claim, the company is a fiction used by Romeo and his co-defendant to bilk the firm for hundreds of thousands of dollars.