Tennessee The Tennessee Higher Education Freedom and Transparency Act

The Tennessee Higher Education Freedom and Transparency Act

This has passed the Senate and Assembly in Tennessee,  If I suggest in class that thee is a societal responsibility for the consequences  of 350 years of slavery, oppression and legally mandated racial discrimination would I be in violation of this measure if I had the misfortune to teach this syllabus at a public university in Tennessee ?  At Vanderbilt rather than Fordham?  - GWC

BILL SUMMARY

DIVISIVE CONCEPTS

Under present law, the following concepts are defined as divisive concepts:

(1) One race or sex is inherently superior or inferior to another race or sex;

(2) An individual, by virtue of the individual's race or sex, is inherently privileged, racist, sexist, or oppressive, whether consciously or subconsciously;

(3) An individual should be discriminated against or receive adverse treatment because of the individual's race or sex;

(4) An individual's moral character is determined by the individual's race or sex;

(5) An individual, by virtue of the individual's race or sex, bears responsibility for actions committed in the past by other members of the same race or sex;

(6) An individual should feel discomfort, guilt, anguish, or another form of psychological distress solely because of the individual's race or sex;

(7) A meritocracy is inherently racist or sexist, or designed by a particular race or sex to oppress another race or sex;

(8) This state or the United States is fundamentally or irredeemably racist or sexist;

(9) Promotes or advocates the violent overthrow of the United States government;

(10) Promotes division between, or resentment of, a race, sex, religion, creed, nonviolent political affiliation, social class, or class of people;

(11) Ascribes character traits, values, moral or ethical codes, privileges, or beliefs to a race or sex, or to an individual because of the individual's race or sex;

(12) The rule of law does not exist, but instead is a series of power relationships and struggles among racial or other groups;

(13) All Americans are not created equal and are not endowed by their Creator with certain unalienable rights, including, life, liberty, and the pursuit of happiness;

(14) Governments should deny to any person within the government's jurisdiction the equal protection of the law;

(15) Includes race or sex stereotyping; or

(16) Includes race or sex scapegoating.

Present law provides that the following restrictions apply to public institutions of higher education in this state ("institutions"):

(1) A student or employee of an institution must not be penalized, discriminated against, or receive adverse treatment due to their refusal to support, believe, endorse, embrace, confess, act upon, or otherwise assent to a divisive concept;

(2) A student or employee of an institution must not be required to endorse a specific ideology or political viewpoint to be eligible for hiring, tenure, promotion, or graduation, and institutions must not ask the ideological or political viewpoint of a student, job applicant, job candidate, or candidate for promotion or tenure; and

Present law provides that an individual who believes that a violation of (1)-(2) has occurred may pursue all equitable or legal remedies that may be available to the individual in a court of competent jurisdiction.

This bill authorizes a student or employee, who believes a violation of (1)-(2) has occurred, to file a report of the alleged violation with the institution. The institution must maintain the filed report and make the report available for public inspection on the institution's website. However, a filed report must be redacted, if necessary, to ensure compliance with the federal Family Educational Rights and Privacy Act and all other relevant privacy laws.

REPORTING VIOLATIONS AND INVESTIGATIONS

This bill requires the Tennessee higher education commission ("commission") to promulgate rules that do the following:

(1) Establish a process by which a person can file a report for an alleged violation;

(2) Require each institution that receives a report to investigate the report;

(3) Create a corrective action plan for an institution that discovers violations during, or at the conclusion of, the institution's investigation; and

(4) Create a reporting requirement for reports filed, the subsequent investigations, and any corrective action plans developed pursuant to rules promulgated by the commission.

USE OF INSTITUTION'S PROPERTY

This bill provides that, for the purposes of approving or scheduling usage of the institution's property, an institution is prohibited from showing bias or favoritism:

(1) For a student group that is peaceful and requests to use the institution's property in a peaceful and lawful manner;

(2) Based upon a guest speaker's or a guest speaker's student-sponsoring groups' viewpoint, race, creed, color, religion, non-violent political ideology, or non-violent political party affiliation; or

(3) For a student group that, or a guest speaker who, intends to maintain a peaceful campus presence and peaceful use of the institution's property because the institution receives threatened simple breaches of the peace or non-destructive disruptions from groups or individuals who oppose the student group's or guest speaker's presence on campus.

Additionally, this bill prohibits an institution from requiring a student group to pay fees or security deposits that are not charged to all other student groups; or denying a student group access to the institution's property, if the property is routinely used by other student groups.

However, this bill authorizes an institution to restrict or deny use of the institution's property for public displays, organized public gatherings, or public demonstrations if the display, gathering, or demonstration would violate the law making it unlawful to knowingly produce, send, or cause to be sent, or bring or cause to be brought, into this state for sale, distribution, exhibition or display, or in this state to prepare for distribution, publish, print, exhibit, distribute, or offer to distribute, or to possess with intent to distribute or to exhibit or offer to distribute any obscene matter, or to do any of the aforementioned with any matter found legally obscene that violates the requirements of federal law.

EFFECTS ON CURRICULUM AND LEARNING OUTCOMES

In order to assess the extent to which divisive concepts may have been included or have otherwise affected the curriculum, this bill requires each institution to publish a current syllabus for each course offered in the current semester at the institution on the institution's website no later than the seventh business day following the first day of class for the respective semester.

In order to assess the extent to which learning outcomes may have been affected by the inclusion of a divisive concept in the student learning experience, this bill authorizes the commission to promulgate rules that require institutions to submit data and information requested by the commission in a standardized format to allow the commission to provide an online organized data compilation that details the number of students who completed the program at the institution for the three most recent academic years, disaggregated by underserved minority students; and the students' results on a nationally recognized assessment that assesses a student's readiness for postsecondary education, if available to the school, and the students' final grade point average.

RESTRICTIONS ON DIVISE CONCEPTS

Present law prohibits an institution from doing the following:

(1) Conducting mandatory training of students or employees if the training includes a divisive concept;

(2) Using training programs or training materials for students or employees if the program or material includes a divisive concept; or

(3) Using state-appropriated funds to incentivize, beyond payment of regular salary or other regular compensation, a faculty member to incorporate a divisive concept into academic curricula.

This bill also prohibits an institution from approving or using state funds for fees, dues, subscriptions, travel in conjunction with membership, meetings, or activities of an organization that endorses or promotes a divisive concept.

EMPLOYEES WHOSE DUTIES INCLUDE DIVERSITY

Present law provides that, if an institution employs employees whose primary duties include diversity, then the duties of such employees must include efforts to strengthen and increase intellectual diversity among the students and faculty of the institution at which they are employed. This bill deletes this provision and provides, instead, that, if an institution employs an individual whose primary or secondary job duties or job title includes diversity, equity, or inclusion, then:

(1) The employee's duties must include specific tasks and efforts to strengthen and increase intellectual diversity and individual liberty among the students, faculty, and employees of the institution with divergent points of view to facilitate the free and respectful exchange of ideas; and

(2) The employee must allocate at least 50 percent of the employee's duties to mentoring, providing academic coaching, and providing learning support activities necessary for the academic success of students who are eligible to receive the federal Pell grant.

NOTIFICATION REQUIREMENTS

This bill requires an institution to notify new students, faculty, and employees of the restrictions described above and the concepts that constitute divisive concepts on the institution's website; on all inductor materials provided to the new student, faculty, or employee; and in introductory meetings with new students, faculty, or employees.

REPORT

This bill requires each institution to annually submit a report to the commission on the implementation of the notification requirements described above.

RULEMAKING

This bill requires the commission to promulgate rules to effectuate this bill.

ON APRIL 5, 2023, THE SENATE ADOPTED AMENDMENT #1 AND PASSED SENATE BILL 817, AS AMENDED.

AMENDMENT #1 makes the following changes and additions to this bill:

(1) Revises some of the legislative findings;

(2) Requires an institution to take appropriate steps to correct any violation that is found to have occurred after a report is filed;

(3) Replaces the requirement that an institution make reports available for public inspection on the institution's website with a requirement that an institution report violations and any corrective action annually to the comptroller of the treasury through the comptroller's office of research and education accountability;

(4) Deletes the requirement that each institution publish a current syllabus for every course offered in the current semester on the institution's website and the requirement to submit data and information pertaining to details on the number of students who completed a program at the institution for the three most recent academic years;

(5) Prohibits a public institution of higher education from requiring an applicant for employment or admission to submit a personal diversity statement or to affirm the applicant's agreement with an institutional diversity statement as part of the application or admissions process;

(6) Prohibits an institution from approving or using state funds, fees, dues, subscriptions, or travel in conjunction with the membership, meetings, or activities of an organization if participation in such organization requires an individual or an individual's employer to endorse or promote a divisive concept (instead of, if the organization endorses or promotes a divisive concept);

(7) Revises the provisions concerning employees of a public institution of higher education whose primary job title includes diversity, equity, or inclusion to require:

(A) The institution to ensure that the employee's efforts strengthen and increase intellectual diversity and promote a climate that facilitates the free and respectful exchange of ideas; and

(B) The institution to ensure that the employee's duties include efforts devoted to supporting student academic achievement and workforce readiness, such as mentoring, career readiness and support, workforce development, or other related learning support activities necessary for the academic and professional success of all students; and

(8) Requires institutions to provide employee training to ensure compliance with the provisions.

Supreme Court setss up Constitutional Challenges to FTC, SEC, In Axon Enterprises

AXON ENTERPRISE, INC. v. FEDERAL TRADE COMMISSION ET AL. 2.

 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 21–86. Argued November 7, 2022—Decided April 14, 2023*

 

The statutory review schemes set out in the Securities Exchange Act and Federal Trade Commission Act do not displace a district court’s federal-question jurisdiction over claims challenging as unconstitutional the structure or existence of the SEC or FTC

Syllabus AXON ENTERPRISE, INC. v. FEDERAL TRADE COMMISSION ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 21–86. Argued November 7, 2022—Decided April 14, 2023* 

Michelle Cochran and Axon Enterprise, Inc.—respondents in separate enforcement actions initiated in the Securities and Exchange Commission (SEC) and the Federal Trade Commission (FTC)—each filed suit in federal district court challenging the constitutionality of the agency proceedings against them. When, as in the enforcement actions against Cochran and Axon, a Commission elects to institute administrative proceedings to address statutory violations, it typically delegates the initial adjudication to an Administrative Law Judge (ALJ) with authority to resolve motions, hold a hearing, and then issue a decision. As prescribed by statute, a party objecting to the Commission proceedings makes its claims first within the Commission itself, and then (if needed) in a federal court of appeals. 

But the parties here sidestepped that review scheme and brought their claims in district court, seeking to enjoin the administrative proceedings. Cochran and Axon asserted that the tenure protections of the agencies’ ALJs render them insufficiently accountable to the President, in violation of separation-of-powers principles. Axon also attacked as unconstitutional the combination of prosecutorial and adjudicatory functions in the FTC. Each suit premised jurisdiction on district courts’ ordinary federal-question authority to resolve “civil actions arising under the Constitution, laws, or treaties of the United States.”  28 U. S. C. §1331

Cochran’s and Axon’s suits initially met the same fate: dismissal for lack of jurisdiction. 

The district court in Cochran’s case held that the review scheme specified in the Securities Exchange Act—“administrative review followed by judicial review in a federal court of appeals”— “implicitly divest[s] district courts of jurisdiction” over “challenges to SEC proceedings,” including Cochran’s constitutional ones.  Likewise, the district court in Axon’s case found that the FTC Act’s comparable review scheme displaces §1331 jurisdiction for claims concerning the FTC’s adjudications. 

On appeal, the Ninth Circuit affirmed the district court’s dismissal of Axon’s constitutional challenges to the FTC proceeding, concluding that the claims were the type that fell within the FTC Act’s review scheme.  

But the en banc Fifth Circuit disagreed as to the equivalent SEC question, finding that Cochran’s claim would not receive “meaningful judicial review” in a court of appeals; that the claim was “wholly collateral to the Exchange Act’s statutory-review scheme”; and that the claim fell “outside the SEC’s expertise.” 

Held: 

The statutory review schemes set out in the Securities Exchange Act and Federal Trade Commission Act do not displace a district court’s federal-question jurisdiction over claims challenging as unconstitutional the structure or existence of the SEC or FTC. Pp. 7–18. (a) Although district courts may ordinarily hear challenges to federal agency actions by way of §1331’s jurisdictional grant for claims “arising under” federal law, Congress may substitute an alternative review scheme. In both the Exchange Act and the FTC Act, Congress did so: It provided for review of claims about agency action in a court of appeals following the agency’s own review process.  The creation of such a review scheme divests district courts of their ordinary jurisdiction over covered cases.  But the statutory scheme does not necessarily extend to every claim concerning agency action.  See, e.g., Thunder Basin Coal Co. v. Reich, 510 U. S. 200, 207–213.  This Court has identified three considerations—commonly known as the Thunder Basin factors—to determine whether particular claims concerning agency action are “of the type Congress intended to be reviewed within th[e] statutory structure.”  Id., at 212.  First, could precluding district court jurisdiction “foreclose all meaningful judicial review” of the claim? Id., at 212–213. Next, is the claim “wholly collateral” to the statute’s review provisions? Id, at 212. And last, is the claim “outside the agency’s expertise”?  Ibid. 

The Court has twice held specific claims to fit within a statutory review scheme, based on the Thunder Basin factors. In Thunder Basin itself, a coal company subject to the Mine Act filed suit in district court instead of asserting its claims—as a statutory scheme prescribed— first before a mine safety commission and then (if needed) a court of appeals.  The crux of the dispute concerned the company’s refusal to provide employee-designated union officials with access to the workplace in accordance with the Mine Act. The company also objected on due process grounds to the agency’s imposition of a fine before holding a hearing.  See 510 U. S., at 205. The Court held that the district court lacked jurisdiction over those claims, emphasizing the commission’s “extensive experience” in addressing the statutory issues raised, as well as its ability to resolve them in light of its “expertise” over the mining industry. Id., at 214–215.  The Court acknowledged the company’s constitutional challenge was less tied to the agency’s experience and expertise, but concluded it could be “meaningfully addressed in the Court of Appeals.”  Id., at 215. 

The Court applied similar reasoning in Elgin v. Department of Treasury, 567 U. S. 1, which involved a statutory review scheme that directed federal employees challenging discharge decisions to seek review in the Merit Systems Protection Board (MSPB) and then, if needed, in the Federal Circuit.  Elgin filed suit in district court when the government fired him for failing to register for the draft.  This Court held that the district court lacked jurisdiction even though Elgin mainly claimed that the draft’s exclusion of women violated the Equal Protection Clause.  Although the MSPB might not be able to hold the draft law unconstitutional, the Court of Appeals could—and that was sufficient to ensure “meaningful review” of Elgin’s claim. Id., at 21. Further, Elgin’s challenge to his discharge was neither collateral to the MSPB’s ordinary proceedings nor unrelated to its expertise in the employment context. In contrast, the Court in Free Enterprise Fund applied the Thunder Basin factors to determine that an accounting firm’s Article II challenge to the structure of the Public Company Accounting Oversight Board—an agency regulating the accounting industry under the SEC’s oversight—landed outside the Exchange Act’s review scheme. Because not all Board action culminates in Commission action—which alone the statute makes reviewable in a court of appeals—the Court determined that the Exchange Act provided no “meaningful avenue of relief.” 561 U. S., at 490–491. And even if the SEC took up a matter arising from the Board’s investigation of the firm, the firm’s constitutional challenge to the Board’s existence would be “collateral” to the subject of that proceeding, as well as “outside the Commission’s competence and expertise.” Ibid. Pp. 7–10. 

(b) The Court must decide if the constitutional claims here are “of the type” Congress thought belonged within a statutory review scheme. Thunder Basin, 510 U. S., at 212.  Like the accounting firm in Free Enterprise Fund, Cochran and Axon assert sweeping constitutional claims: They charge that the SEC and FTC are wielding authority unconstitutionally in all or broad swaths of their work. Applying the Thunder Basin factors here, the Court comes out in the same place as in Free Enterprise Fund.

First, preclusion of district court jurisdiction “could foreclose all meaningful judicial review.” Id., at 212–13.  Adequate judicial review does not usually demand a district court’s involvement.  And the statutes at issue in this case provide for judicial review of adverse SEC and FTC actions in a court of appeals. But Cochran and Axon assert a “here-and-now injury” from being subjected to an illegitimate proceeding, led by an illegitimate decisionmaker. Seila Law LLC v. Consumer Financial Protection Bureau, 591 U. S. ___, ___. That injury is impossible to remedy once the proceeding is over, which is when appellate review kicks in. Judicial review of the structural constitutional claims would thus come too late to be meaningful.  To be sure, “the expense and disruption” of “protracted adjudicatory proceedings” on a claim do not alone justify immediate review. FTC v. Standard Oil Co. of Cal., 449 U. S. 232, 244.  But the nature of the injury here is different: As with a right “not to stand trial” that is “effectively lost” if review is deferred until after trial, see Mitchell v. Forsyth, 472 U. S. 511, 526, Axon and Cochran will lose their rights not to undergo the complainedof agency proceedings if they cannot assert those rights until the proceedings are over. 

The collateralism factor also favors Axon and Cochran. The challenges to the Commissions’ authority have nothing to do with either the enforcement-related matters the Commissions regularly adjudicate or those they would adjudicate in assessing the charges against Axon and Cochran. Elgin, 567 U. S., at 22. The parties’ claims are thus “ ‘collateral’ to any Commission orders or rules from which review might be sought.”  Free Enterprise Fund, 561 U. S., at 490. Finally, Cochran’s and Axon’s claims are “outside the [Commissions’] expertise.” Thunder Basin, 510 U. S., at 212.  The Court in Free Enterprise Fund determined that claims that tenure protections violate Article II raise “standard questions of administrative” and constitutional law, detached from “considerations of agency policy.”  561 U. S., at 491. That statement covers Axon’s and Cochran’s claims that ALJs are too far insulated from the President’s removal authority. And Axon’s constitutional challenge to the combination of prosecutorial and adjudicative functions in the FTC is similarly distant from the FTC’s “competence and expertise.” Ibid.  The Commission knows a good deal about competition policy, but nothing special about the separation of powers. For that reason, “agency adjudications are generally ill suited to address structural constitutional challenges”—like those maintained here. Carr v. Saul, 593 U. S. ___, ___.  

The Court concludes that the claims here are not the type the statutory review schemes at issue reach.  Pp. 10–18. No. 21–86, 986 F. 3d 1173, reversed and remanded; No. 21–1239, 20 F. 4th 194, affirmed and remanded. 

The Manhattan DA’s Charges and Trump’s Defenses: A Detailed Preview

Under the KISS rule NY D.A. Bragg will charge Trump only with concealing state tax crimes. Justice demands more, but certainty of conviction ranks higher.

The Twitter wars among law profs and former prosecutors over the Manhattan DA's indictment of Trump center on how Bragg proposes to up the misdemeanor false business record charge o a felony.  That requires falsifying the records to conceal another crime. The hottest point of contention is whether the "other crime" can be a federal crime - running the risk of federal preemption of state law.

Personally I don't think the problem is substantial.  - GWC

The Manhattan DA’s Charges and Trump’s Defenses: A Detailed Preview

by Joshua Stanton, Norman L. Eisen, E. Danya Perry and Fred Wertheimer

March 20, 2023

Manhattan District Attorney Alvin L. Bragg is apparently on the verge of charging Donald J. Trump under New York state’s business records statute for concealing hush money payments that may have affected the outcome of the 2016 presidential election. In the first essay in this series, as well as in some of the authors’ prior writing, we analyzed the applicable facts and law and predicted that charges were likely. In this next installment, we dive into a particular sticking point: the legal bases for elevating the misdemeanor business records violation to a possible felony. To our knowledge, no in-depth review of these bases has yet been made publicly available, and so we walk through them here. We also analyze Trump’s likely defenses, and conclude by addressing his inflammatory recent calls to action and what the DA will do next. 

Falsifying Business Records

Falsifying business records under New York law can be charged either as a misdemeanor or a felony. The misdemeanor requires proof of one of several potential acts. Relevant to Trump is the statute’s prohibition of making “a false entry in the business records of an enterprise.” The evidence indicates he personally signed checks to Michael Cohen as reimbursement for the hush money payment. If DA Bragg can prove that Trump signed those checks—and it appears he can—and that Trump knew the payment for hush money was being falsely recorded as “legal expenses,” then Trump committed a misdemeanor (or likely a number of misdemeanors, if each false entry is charged separately).

To establish a felony (i.e. falsifying business records in the first degree), prosecutors would need to prove, in addition to the elements of the misdemeanor, that Trump’s “intent to defraud include[d] an intent to commit another crime.” There are a number of candidate crimes—and we offer below an assessment of just some of the more likely options.

Potential Predicate Crimes for a Felony Charge

Preemption and the Known Unknowns of the Trump Indictment - Lawfare

Preemption and the Known Unknowns of the Trump Indictment - Lawfare

By Lee Kovarsky (U Texas- Austin)

Lee Kovarksy carefully dissects, and, I think, disposes of Jed Shugerman's argument that Manhattan DA Alvin Bragg has blundered by inducing a New York  Grand Jury to charge Donald Trump with federal crimes over which the State lacks jurisdiction.

The fundamental mistake, it seems to me, is that the alleged false statements are elevated from misdemeanor to felony by the intent to violate  federal alw.  The exclusive federal jurisdiction is thus not infringed.

But read Kovarsky who has put together the argument very carefully and persuasively.

- GWC

Texas Judge Bar of Abortion Drug Mifestiprone Unleashes Crisis in Care

 

Judge Kacsmaryk

Judge Matthew J. Kacsmaryk of the U.S. District Court for the Northern District of Texas, “has set a precedent for diminishing F.D.A.’s authority over drug approvals, and in so doing, creates uncertainty for the entire biopharma industry” according to a public statement by a group of pharmaceutical industry leaders.  The judge's ruling in Alliance for Hippocratic Medicine v. FDA declares void the FDA's 23 year old approval of the drug which is part of a long available treatment to induce abortion and to avoid further harm by women who have already suffered miscarriage.

Judge Rice

The order conflicts with another issued by Thomas O. Rice, a U.S. District Judge in Washington State.  The State of Washington and fifteen other  states obtained a preliminary injunction" barring the Food & Drug Administration from 

"altering the status quo and rights as it relates to the availability of Mifepristone under the current operative January 2023 Risk Evaluation and Mitigation Strategy under 21 U.S.C. 355-1 in  Plaintiff States."

The United States has filed an emergency motion for a stay of the nationwide order issued by Kacsmaryk. The U.S. argues that 

"Plaintiffs’ conduct confirms that there is no basis for extraordinary nationwide relief that would upend a decades-long status quo and inflict grave harm on women, the medical system, and the public. "

The existence fo the two orders presents difficulties, So the U.S. has filed a motion for clarification asking Judge Rice what his order means in the event the stay of the Texas order is denied and the order in Hippocratic Medicine goes into effect.

- GWC

4/11/23 

Stanford Law School’s Dean Takes a Stand for Free Speech. Will It Work? - The New York Times

Stanford Law School’s Dean Takes a Stand for Free Speech. Will It Work? - The New York Times

The Scott Trust Legacies of Enslavement Report | University of Hull

 

Statement and apology from the Scott Trust board

Summary

The extensive academic research summarised above makes clear that John Edward Taylor, our founding editor, and most of the backers who helped fund the Manchester Guardian had links to transatlantic slavery.

The Scott Trust and Guardian apologise unreservedly for their roles in this crime against humanity.

Below, we set out in more detail our response to these findings, and a set of proposals that we hope respond in a meaningful way to the descendants of those affected. We are committed to developing and delivering on these proposals in partnership and consultation with affected communities around the world.

Background

Between the 16th and 19th centuries, millions of Africans were trafficked across the Atlantic to the Americas. Subsequently, enslaved people were systematically forced to work – often on plantations – and live in inhumane conditions and subjected to poor nutrition, disease and brutality, leading often to premature or violent death. Under this form of chattel slavery, those enslaved had no freedom or rights, and were listed as “property” in plantation accounts and itemised as such in inventories.

Although Britain’s transatlantic trade in enslaved Africans was abolished in 1807, the practice of slavery remained legal within the British empire until 1833, followed by an apprenticeship system until 1838. British businesses, institutions and wealthy families and individuals continued to benefit from slavery in the rest of the world for many decades thereafter. Chattel slavery created intergenerational wealth and political power not only in the American south and the British West Indies but also in many other parts of the world. Its legacy is a major factor in the racial, economic and social inequalities faced today by Black people across the globe.

The industrialisation of cotton relied on​ ​the production of raw materials by enslaved workers across the Americas, and Manchester’s 19th-century nickname, Cottonopolis, illustrates the intertwined nature of the city’s identity with its trademark commodity. The wealth created in Manchester, primarily by cotton as well as sugar and other commodities, led to a boom in several other industries.

In this civil-war era US cartoon, John Bull, the emblem of British ‘liberty’ – with a paper labelled ‘Manchester’ in his pocket – kneels on the body of a slave before a large, crowned bale of cotton. Photograph: Getty Images

The city’s dominant industry seems also at times to have unduly influenced the Manchester Guardian’s editorial positions in the first few decades of its existence. Though the Guardian generally opposed slavery in the Caribbean and South America, when slavery was abolished in Britain in 1833 it supported the award of huge sums of compensation to enslavers. “We are convinced,” ran one editorial in June 1833, “that no plan for the abolition of slavery could have been worthy to be proposed by the government, or adopted by the legislature, of Great Britain, which was not based on the great principles of justice to the planter as well as to the slave.”

In the decades that followed, the paper’s editorial position on the US civil war often ran counter to the cause of emancipation, or favoured the Confederacy. As the Guardian’s editor-in-chief, Katharine Viner, wrote in 2017, around the time of the American civil war the newspaper “got too close to the Manchester cotton merchants who paid for the advertising that supported the paper”.

As is documented in the research.

The Scott Trust Legacies of Enslavement Report | University of Hull

Colonial slavery shaped modern Britain and we all still live with its legacies. Guardian Media Group is a values-centred global news organisation that gives a voice to the powerless. It wanted to discover more about any links it might have with historical slavery. On a broader scale, confronting Britain’s legacies of slavery and colonialism pose multifaceted challenges which include censorship, highlighting stories of the enslaved and a lack of engagement with the communities whose stories and histories are being told in this type of research, such as African Caribbean and Indo Caribbean communities.

Experts from the Wilberforce Institute were invited to continue work on "The Scott Trust Legacies of Enslavement Report", conducting in-depth research to investigate any links of John Edward Taylor (founder of the Manchester Guardian newspaper in 1821), his associates, and his or their business activities with historical slavery.  This followed initial research by the University of Nottingham. The research was conducted first by Dr Sheryllynne Haggerty, a fellow at the Wilberforce Institute, and Dr Cassandra Gooptar, and later by Dr Gooptar and Professor Trevor Burnard, Director of the Institute.

This research was conducted and produced in a way that strived to keep the perspectives of the enslaved and their stories at the forefront. Each step of the way, there was genuine effort to understand the sombre and heavy weight of what this research means as well as its part in helping to present a holistic narrative of Britain’s legacy of slavery. The research promoted an uncensored understanding of Britain’s legacies of slavery and colonialism and increased engagement with the Caribbean.

The report comes in three parts, and can be viewed via the links below:

Part One: The Taylor Report (University of Nottingham)

Part Two: The Scott Trust Legacies of Enslavement Report

Part Three: Sea Islands & Jamaica: Tracing the Enslaved People

And So It Begins: On the First Charges to Drop Against Former President Donald Trump - Lawfare

And So It Begins: On the First Charges to Drop Against Former President Donald Trump - Lawfare

By Benjamin Wittes

Over the past several days, a debate has raged over the merits of an indictment nobody had seen. Is it a strong case? Is it weak? Is it legally deficient? Is it an outrage that New York prosecutors are bringing a case that should be federal or shouldn’t be brought at all? Is the legal theory by which prosecutors are bumping up misdemeanor records falsification into felonies too much of a stretch? Is the whole thing a witch hunt—an effort to target Donald Trump, rather than to prosecute a crime? Is it a great shame that this New York case, not something related to Jan. 6 or Mar-a-Lago documents or election interference in Georgia, is the first criminal case against a former president in American history actually to proceed to indictment?

A great many commentators didn’t bother to wait the few days it would take to actually read the indictment before weighing in at least semi-informed on these questions. 

Ironically, even now that the indictment has actually been unsealed, it’s still too early to answer many of them. 

The indictment sought by Manhattan District Attorney Alvin Bragg and released today by the city’s Supreme Court—New York’s confusing name for trial courts—is not a trivial document. And Trump’s defenders should not kid themselves that this case is mere politics. It alleges serious misconduct: plotting to pay hush money to multiple people to avoid electoral consequences and falsifying documents to cover it up. And it does so with an apparently powerful array of witnesses and documents to back it up.

Analysis: A Surprise Accusation Bolsters a Risky Case Against Trump - The New York Times

Analysis: A Surprise Accusation Bolsters a Risky Case Against Trump - The New York Times

Problem for the Trump Indictment: Is There Any Precedent for an Internal Business Record? (Plus Preemption Problems!) – SHUGERBLOG

Jed Shugerman provides an alarmist but helpful take on the Trump indictment in NY.

Personally I don't see the preemption argument at all (he is hiding his evasion of federal law - how is that preempted); and that it is an internal business record ((i.e. not filed anywhere) is irrelevant as its purpose is to aovid his own tax liability by masking it as a business expense owed to Michael Cohen?

Problem for the Trump Indictment: Is There Any Precedent for an Internal Business Record? (Plus Preemption Problems!) – SHUGERBLOG

Margot Stern Strom, Anti-Bigotry Educator, Dies at 81 - The New York Times

Margot Stern Strom, Anti-Bigotry Educator, Dies at 81 - The New York Times

By Richard Sandomir

Margot Stern Strom, a former schoolteacher who in the mid-1970s turned her dismay over her lack of knowledge about the Holocaust into a nonprofit educational organization that develops anti-hate curriculums for teenagers, died on Tuesday at her home in Brookline, Mass. She was 81.

Her daughter, Rachel Fan Stern Strom, said the cause was pancreatic cancer.

Ms. Strom was teaching seventh- and eighth-grade language arts and social studies at the Runkle School in Brookline in 1975 when she and a colleague, Bill Parsons, attended a workshop on the Holocaust. It was an unsettling experience, which made them realize how little they knew about the Nazis’ murder of six million Jews.

She and Mr. Parsons, she was quoted as recalling on the website of Facing History & Ourselves, the organization they went on to found, felt that they had been “victims of the silence on the Holocaust.”

“And now, as teachers,” she added, “we were perpetuating that silence.”

It was the seed for their creation of Facing History, which uses injustices like the Holocaust, the Armenian genocide, Jim Crow laws that enforced segregation, apartheid in South Africa and the George Floyd killing to help guide eighth to 12th graders’ understanding of the motivations behind racism, extremism and antisemitism, as well as their moral implications and the power of people to shape history’s course.

Dorf on Law: Federal Judge Says Dobbs Means Arkansas Can Criminalize Adultery, Fornication, and Masturbation

Dorf on Law: Federal Judge Says Dobbs Means Arkansas Can Criminalize Adultery, Fornication, and Masturbation

By Michael Dorf

With all of the attention understandably being paid to the indictment of Donald Trump, a major district court decision announced yesterday was likely overlooked. The ruling in ACLU of Ark. v. Griffin concerns a lawsuit against the Arkansas Attorney General. The ACLU of Arkansas sued to block enforcement of SB 4592, the state law enacted last month that forbids (and authorizes felony imprisonment for up to five years for) "deviant sexual practices that were constitutionally proscribable in 1791, 1836, and/or 1868" (the respective dates of ratification of the Bill of Rights, Arkansas statehood, and the ratification of the Fourteenth Amendment). The complaint alleged that "deviant sexual practices" is unconstitutionally vague and that, if construed to include all sexual practices deemed deviant at any or all of the dates listed in the statute, would encompass clearly protected practices such as same-sex sodomy.

In an opinion partially granting and partially denying the ACLU's motion for a preliminary injunction, U.S. District Lee Rudofsky agreed with the plaintiffs that SB 4592 could not be constitutionally applied to "practices such as sodomy that the Supreme Court has (whether rightly or wrongly) already deemed constitutionally protected," citing Lawrence v. Texas, but "remains valid with regard to those practices that were clearly constitutionally proscribable at the relevant dates." By including "clearly" in that aspect of his denial of injunctive relief, Judge Rudofsky wrote, "today's order protects against any potential for unconstitutional vagueness."

According to the district court opinion, what practices does SB 4592 validly proscribe? Judge Rudofsky's "not-necessarily-exhaustive catalogue" listed: "bigamy, incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity." Does that list sound familiar? It should. The judge expressly borrowed it from Justice Scalia's dissent in Lawrence. Justice Scalia's list also included same-sex marriage, but Judge Rudofsky explained that, "in light of the Supreme Court's not-yet-overruled holdings in [Lawrence] and Obergefell v. Hodges, 576 U.S. 644 (2015), sodomy and same-sex marriage cannot constitutionally be proscribed, even though they fall within [the statute's] proscription of deviant sexual practices that were proscribed at all relevant times."

Although the ruling would seem to imperil not only masturbators, that aspect of the law and ruling have drawn the most attention, perhaps because of public statements by Arkansas Governor Sarah Huckabee Sanders. When asked whether, and if so, how the state would enforce the prohibition, the governor (who recently signed the legislation at a ceremony at which she was flanked by anti-masturbation activists) answered a different question, namely what purpose the law serves. "Just as I'm grateful to my mother for not aborting me and therefore we ban abortion, I'm equally grateful to my daddy for not spilling his seed and preborting me."

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Interview with Christopher Kellerman, S.J. All Oppression Shall Cease - A History of Slavery, Abolitionism and the Catholic Church

 Orbis has posted this interview with Christopher Kellerman, S.J. about his new book All Oppression Shall Cease, 

https://youtu.be/NTPHn226BuM

Contrary to Fed 5th Circuit, NJ Appeals Court Blocks Gun Permit Application

Two courts, one the 5th Circuit, the other the Appellate Division of the Superior Court of New Jersey pose a shocking contrast in approaches to who may lawfully carry a gun.

Finding a path through the hedgerow erected by the United States Supreme Court in New York Rifle and Pistol Ass'n v. Bruen, a New Jersey appellate panel has backed a local Police Chief who rejected a gun purchase permit applicant who did not show that he would not be a threat to public order if  allowed to carry a gun. 

The decision stands in marked contrast to U.S.A. v. Zackey Rahimi. There the United States Solicitor General has filed a petition for certification of a Fifth Circuit decision which answers YES to  the question the SG presents to the high court:

Whether 18 U.S.C. 922(g)(8) possession of firearms , which prohibits the persons subject to domestic violence restraining orders, violates the Second Amendment on its face? 

Rahimi was both subject to a domestic violence order - which he violated, and had engaged in several shootings. In one he retaliated against a man who had bought drugs from Rahimi - but "started talking trash " about him on social media.  Rahimi retaliated by firing   an AR-15 rifle into the man's home.  

The Fifth Circuit ruled that Bruen's command limiting firearms restrictions to those who were not "law abiding"was limited to felons, the mentally ill and "other groups that have been historically stripped of their Second Amendment rights."  Perpetrators of domestic violence were not such a historically recognized categorical group, the Circuit decided.

In the matter of Application of M.U.  New Jersey Appellate Division Judge Richard Geiger defended and applied the statute recently adopted by the state's Legislature to preserve its ability to control the spread of firearms.

In Bruen the Opinion of the Court, authored by Clarence Thomas, declared that judges are not to weigh states' public health or other such concerns against the personal 2d Amendment right to carry a gun:

The Second Amendment “is the very product of an interest balancing by the people” and it “surely elevates above all other interests the right of law-abiding, responsible citizens to use arms” for self-defense. Heller v. D.C.  It is this balance—struck by the traditions of the American people—that demands our unqualified deference.

As amended in 2022 – post Bruen - N.J.S.A. 2C:58-3[c](5) denies a Firearms Purchaser Identification Card

 

(5) To any person where the issuance would not be in the interest of the public health, safety or welfare because the person is found to be lacking the essential character orf temperament necessary to be entrusted with a firearm.

M.U. had no record of criminal convictions but there was a history of dismissed charges and disturbing behaviour.  Four police officers testified that he had a history of vandalizing property – mailboxes, lights, and fences - and of criminal mischief. He once retaliated against a customer for a failure to pay a $300 bill by using a chainsaw to cut down a tree on the victim’s front lawn.  And  he was once arrested for the 2015 theft of a trailer- which he placed for sale on Craigslist.

The Appellate Division found the Oakland Police Chief reasonably found that M.A. was "lacking the essential character or temperament necessary to be entrusted with a firearm" which New Jersey lawfully demands.

- GWC

April 1, 2023