James Fallows: Bloomberg & Mosque

Thanks to James Fallows for highlighting Mayor Michael Bloomberg's principled stand in the face of the nativist opportunists who find intolerable a mosque in downtown Manhatan.

This Is Not My Normal Beat (Bloomberg & Mosque Dept) ... - Politics - The Atlantic

The Mayor's statement as excerpted by Fallows:

"We may not always agree with every one of our neighbors. That's life and it's part of living in such a diverse and dense city. But we also recognize that part of being a New Yorker is living with your neighbors in mutual respect and tolerance. It was exactly that spirit of openness and acceptance that was attacked on 9/11.... Of all our precious freedoms, the most important may be the freedom to worship as we wish....

"The World Trade Center Site will forever hold a special place in our City, in our hearts. But we would be untrue to the best part of ourselves - and who we are as New Yorkers and Americans - if we said 'no' to a mosque in Lower Manhattan.

"Let us not forget that Muslims were among those murdered on 9/11 and that our Muslim neighbors grieved with us as New Yorkers and as Americans. We would betray our values - and play into our enemies' hands - if we were to treat Muslims differently than anyone else. In fact, to cave to popular sentiment would be to hand a victory to the terrorists - and we should not stand for that."

Rule Limiting Legal Services in Terror Cases Is Challenged - NYTimes.com

In July the Treasury Department designated Anwar al-Awlaki as a terrorist, putting the fugitive on the government's hit list.

“The same government that is seeking to kill Anwar Al-Awlaki has prohibited attorneys from contesting the legality of the government’s decision to use lethal force against him,” says the complaint, which was jointly filed by the American Civil Liberties Union and the Center for Constitutional Rights.  The CCR summary and related documents are HERE.  The Times news account is Rule Limiting Legal Services in Terror Cases Is Challenged - NYTimes.com

Inventor's Angst over "painless execution"

Yang Hui was traumatized when as a boy he witnessed a public execution.  The man was shot in the head struggled to rise and shot again.  Years later he designed a lethal injection pump.  It does not meet the goal of death within 30 seconds.  He yearns for an end to the death penalty.  As the National Peoples Congress meets he is profiled by China Daily.
Angst over painless execution

China Legislature will reduce capital offenses

The National Peoples Congress will act to reduce the number of capital offenses, China Daily reports. No details yet but it appears that non-violent capital offenses will be reduced. One has to wonder about dramatic governmental corruption - such as the execution for bribery of the chief of the drug regulation agency.

China mulls to cut down executions

Daniel Schorr, A Man for All Seasons

Daniel Schorr was the best writer in American journalism for 50 years.  Because little was in print that was too little noted.  His 450 word commentaries on NPR were cut diamonds, beginning with a dramatic opening sentence, followed by This is Daniel Schorr.    He was a hero of American journalism bar none in the Post-War era.  I read the Times obit  below in awe at the story of a man whose career I wrongly assumed I knew.   

At CBS, Mr. Schorr won three Emmy Awards for his coverage of the Watergate scandal and took pride in his often blunt reporting on the administration. In one instance he hurriedly began broadcasting after acquiring a copy of Nixon’s notorious “enemies list” only to discover in reading the names aloud that his was No. 17.

Daniel Schorr, Aggressive Journalist, Dies at 93 - Obituary (Obit) - NYTimes.com

Can Chinese fishermen sue over an oil spill? - Slate Magazine

Yes, as I told the reporter, who inquired because he found my translation of the draft tort code of China. Wonderful thing the internet.

Can Chinese fishermen sue over an oil spill? - By Christopher Beam - Slate Magazine

Stimulus: Shanghai-Nanjing intercity railway starts operation

This is the equivalent - geographically and economically and ecologically of a high speed rail line between New York City and Boston. 73 minutes by rail! And it is not a test-case. There is already such a link from Wuhan to Guangzhou (like Miami to Chicago) and the Beijing to Shanghai link is about to start track laying.

Shanghai-Nanjing intercity railway starts operation

Financial Reform Act

I haven't studied it.  But here it is.

Rory Stewart: Why Debate the War?: The Real Reason We Are in Afghanistan

Rory Stewart, M.P. (Conservative)
for Penrith & The Border

Why Debate the War?: The Real Reason We Are in Afghanistan
European countries feel trapped by their relationship with NATO and the United States. Holbrooke and Obama feel trapped by the position of American generals. And everyone -- politicians, generals, diplomats and journalist -- feels trapped by our grand theories and beset by the guilt of having already lost over a thousand NATO lives, spent a hundred billion dollars and made a number of promises to Afghans and the West which we are unlikely to be able to keep.....

The Assault on the Citadel: Yale & Harvard take the Supreme Court

Back in the days of the "gentleman's C"  Harvard and Yale were the cool colleges.  Ivy League and Preppie were the fashion models of my youth.  But in the days before US New & World Report, before college rankings, the choice of a college was a kind of local, or family, or ethnic thing.  Harvard took 100/year from Boston Latin and filled most of the remaining slots with New England prep schools and legacy admits.  I applied only  to Catholic schools -  Georgetown, Holy Cross, BC, Notre Dame, with Villanova as a safety school.  Harvard and Yale weren't in my field of vision: except as rivals on the athletic field - then, as now.  The choice of college did not seem very consequential. That was then.  But now that we see the domination of the Supreme Court we see another bit of evidence of how consequential these choices have become.


But is there more to it than the fact that in the last 24 years when the duopoly was established three Presidents have been Yale men and the current one a Harvard man?  The data is in Patrick Glen's paper Harvard and Yale Ascendant: The LegalEducation of the Justices from Holmes to Kagan.  The judgments are for you to make.


 h/t Catherine Rampell, Economix, NY Times

Chinese hip hop - it's time to learn Chinese

My hero James Fallows  is knowledgeable and skillful about so many things: he writes (1981 American Book Award for The National Defense), he flies, he talks politics with Guy Raz every Saturday on NPR, and blogs for The Atlantic about all of the above,  plus software (he designed for Microsoft) , rhetoric (he wrote speeches for Jimmy Carter), China and Chinese language study. [He likes eChineselearning.com, I like Jenny Zhu, John, Ken, Connie, Lilliana  and the crew at ChinesePod.com).


Today Fallows  posted this wonderful Chinese hip hop video Zhong Guo Hua 中国话 (Chinese language)。  It celebrates the fact that so many people are learning Chinese (see text below the video).  The director must have spent a lot of time at the Times Square subway station to pick up all these hip hop dance and gymnastics moves and rhythms.  You would look a long time to find Americans who could mimic and spoof so well any Chinese cultural quirks.




ɡè   zhǒnɡ   yán   sè   de   pí   fū   ɡè   zhǒnɡ   yán   sè   de   tóu   fɑ 
各 种 颜 色 的 皮 肤 各 种 颜 色 的 头 发 （People with skin of all colours, people with hair of all colours）


zuǐ   lǐ   niàn   de   shuō   de   kāi   shǐ   liú   xínɡ   zhōnɡ   ɡuó   huà 
嘴 里 念 的 说 的 开 始 流 行 中 国 话 （They speak the increasingly popular Chinese language. ） 


duō   shǎo   nián   wǒ   men   kǔ   liàn   yīnɡ   wén   fā   yīn   hé   wén   fǎ 
多 少 年 我 们 苦 练 英 文 发 音 和 文 法 （For how many years have we slaved away at English pronunciation and grammar） 


zhè   jǐ   nián   huàn   tā   men   juǎn   zhe   shé   tou   xué   pínɡ   shànɡ   qù   rù   de   biàn   huà 
这 几 年 换 他 们 卷 着 舌 头 学 平 上 去 入 的 变 化 （These few years, it's their turn to learn how to roll their tongues and learn the different intonations.） ...


hǎo   cōnɡ   mínɡ   de   zhōnɡ   ɡuó   rén   hǎo   yōu   měi   de   zhōnɡ   ɡuó   huà
好 聪 明 的 中 国 人 好 优 美 的 中 国 话 （The Chinese are such smart people, and the Chinese language is so beautiful）
扁 担 想 绑 在 板 凳 上

Florida Appellate Court Denies PD's Withdrawal Motion Based on Excessive Caseload

The ethical dilemmas posed by under-funding of public defenders have been the subject of much attention, as in the New York CLU's challenge.  The bold efforts of  Miami-Dade's elected public defender have gotten a lot of attention. On May 10 the Florida Supreme Court accepted jurisdiction of the PD's systemic challenge and established a briefing schedule.  Argument is expected in the fall. (excessive caseload litigation files here)  


In Florida v. Bowen   the trial judge allowed a PD to withdraw from an individual case due to excessive caseload.  The dilemma is created by the violation of the client's right to a speedy trial and the inability to obtain substitute counsel.  Now an intermediate court of appeals has reversed.  Robert Boruchowitz, Professor from Practice at Seattle University reports at Crim Law Prof blog.

The bursting of the pedigree bubble - William Henderson

                                                            
Indiana Law Professor William Henderson is an empiricist.  He likes to have measurable data.  When I was a graduate student in the political science department at Boston University I had no interest in the "science" part of the field.  Their data was too sparse, their hypotheses narrowed by their limited data.  But 40 years of social science has improved the databases and developed techniques for measurement.    William Henderson at Indiana University is a law professor who has combined an historian's ear for narrative with the social scientist's appetite for data.  His latest post shows that the elite law school brand business model (pioneered by Cravath Swaine & Moore) is cracking under market pressure.


In thirty years of practice I found that lawyers pay little attention to where you went to school.  Adversaries are evaluated on reputation and personal experience.  It was a shock when I came to the academy to learn that elite law school pedigree matters so much.  It never occurred to me when I passed up Berkeley for Rutgers-Newark that I was putting a major dent in my ability to secure a teaching job.  Today I see the worry on students faces over grades and US News rankings.   Is Fordham up or down?  "I have Fordham branded on my forehead" lamented one to me recently, pained because she earlier had Princeton stamped there.  Henderson asks - if grades and pedigree matter so much in the market do they really predict effectiveness as a lawyer?  NO, says Henderson, but their sway can be explained by a kind of managerial self protection:

One of the advantages of going to an elite law school is the presumption that you are a very smart and able lawyer.  If you made law review, graduated Order of the Coif, or clerked for a federal judge, the presumption grows stronger.  Most large law firms are very sensitive to pedigree, though you’d be hard pressed to find any hard empirical evidence why the kid who went to Harvard is a better bet than someone who went to, say, Boston College, Illinois, or the University of Houston.  Although the performance benefits of elite pedigree are little more than a hunch, the entire market for corporate legal services has bought into the notion that better résumés equal a better firm.  As the demand for corporate legal services continued to grow over the last several years, this herd-like branding strategy produced the $160,000+ associate pay structure and the now famous “bi-modal” distribution.

Yet, as the economy has slipped into recession, the pedigree bubble has finally burst.  It is now painfully obvious to everyone that it does not matter where you went to school, or who you clerked for—a lawyer in his or her first or second year of practice is just not worth $275 per hour.[1] A few star lawyers, or a handful of marquee firms, may be able to levy these rates for junior lawyers as part of bundled package of services.  But the vast majority of large law firm partners are experiencing overwhelming downward pressure on fees.  Because of high overhead added during the boom years, many firms are in the unprecedented position of slashing associate salaries to generate a large enough profit pie to keep key rainmakers in the firm.  As a result, elite credentials are now in the process of getting repriced.

`Daubert' hearings for eyewitness ID testimony endorsed by NJ Law Journal Editorial Bd.

Clearing Blurred Vision

New Jersey Law Journal Editorial Board

July 2, 2010

Last year, the state Supreme Court remanded State v. Henderson , an eyewitness identification case, "for a hearing to consider and decide whether the assumptions and other factors reflected in the two-part Manson/Madison test, as well as the five factors outlined in those cases to determine reliability, remain valid and appropriate in light of recent scientific and other evidence." In State v. Madison , 109 N.J. 223 (1988), the Court had held that courts must decide (1) whether the procedure was impermissibly suggestive; and (2) whether the procedure resulted in a "very substantial likelihood of irreparable misidentification."

Madison left the door open wide for unreliable testimony. Social science research demonstrates that one-third of all positive identifications are wrong. And as reported by the Innocence Project, 75 percent of the persons exculpated by DNA evidence had been convicted on the basis of erroneous eyewitness identifications. The problem is not prosecutorial misconduct but the inherent frailties of memory demonstrated in lineups, show-ups and in-court identifications. Social scientists have identified patterns of failure due to factors including post-identification reinforcing feedback, eyewitness stress, weapon focus, distance effects, lighting, age of observer, and cross-race identification failures.

Persistence by New Jersey's Office of the Public Defender and its allies has paid off. The Supreme Court appointed retired Appellate Division Judge Geoffrey Gaulkin as special master. His report to the Court systematically reviews the scientific evidence, the law, and practice here and in other states. He rejects the state's standpat approach and urges the Court to adopt a key remedy. He would place "at least an initial burden on the prosecution to produce, at a pretrial hearing, evidence of the reliability of the evidence. Such a procedure would broaden the reliability inquiry beyond police misconduct to evaluate memory as fragile, difficult to verify and subject to contamination from initial encoding to ultimate reporting."

Judge Gaulkin's approach brings civil and criminal standards into parity because the focus is on reliability, without the barrier of showing impermissible suggestiveness. This focus — away from fault and toward objective assessment of reliability by the judge as gatekeeper — is a wise one. We hope our Supreme Court embraces Gaulkin's approach.

This editorial was published in the July 2, 2010 issue of the New Jersey Law Journal.  Copyright 2010. ALM Media Properties, LLC. All rights reserved.  Further duplication without permission is prohibited.

Judicial Electioneering - July 4th Parade, Thomaston, Knox County, Maine

Handgun Murders vs. Justifiable Homicides: McDonald v. City of Chicago

It is popular and has a common sense appeal to say that since self-defense is a fundamental right gun ownership is a fundamental right.  The Supreme Court in McDonald v. City of Chicago makes that point.  Justice Samuel Alito locates that right in the Second Amendment, though it takes a forced reading to do it.  Maybe Justice Clarence Thomas is closer to the mark when he says that it is one of the "privileges and immunities" of citizenship, as Robert Cottrol argues, thinking of the right of the former slaves to protect themselves from the KKK as Reconstruction gave way to Jim Crow and a century of lynchings.


But recognition of the right of self-defense doesn't answer the question of the wisdom of our scarcely regulated right of gun ownership. Julie Cantor of UCLA says we should brace for the impact.  She makes her point graphically in the New England Journal of Medicine today:

 Garen Wintemute, et al. also argue in today's New England Journal that rather than close the so-called "gun show loophole", a"more effective approach would be to subject all private-party gun sales to the screening and record-keeping requirements that apply to sales by licensed retailers. Six states do so already, and nine others regulate all sales of handguns".

Which side are you on? Jeff Sessions says "not Thurgood Marshall's"

There is a divide in this country - a social divide that is not a partisan divide.  It is your answer to the labor and civil rights movement ballad's rhetorical question "Which side are you on?" For the judges who are my heroes the answer in the 1950's was The Union's - the union that Abraham Lincoln's leadership saved.  Among the most devout judicial adherents of the Union  were the Republican judges of the U.S. Court of Appeals for the Fifth Circuit - in the states of the defeated Confederacy.  After Brown v. Board of Education judges of the party of Lincoln like John Minor Wisdom and his colleagues dismantled the legal structure of segregation - Jim Crow.


Thurgood Marshall led the NAACP Legal Defense and Education Fund, Inc. which devised and implemented the successful strategy.  Its beginnings may be traced to Shelley v. Kraemer - the 1948 case argued by Marshall in which the Supreme Court declared unenforceable a deed restriction that barred sale of land to anyone other than a Caucasian.  Its greatest victory was, of course, Brown v. Board of Education of Topeka, Kansas (1954).

So it is with regret that I hear today's Republican Senators take a cut at Elena Kagan for her association with the late, great man - Justice Marshall.   Ranking Member Senator Jeff Sessions (R-Mississippi) complained today, in his opening statement at the Kagan Supreme Court confirmation hearings:

"Importantly, throughout her career, Ms. Kagan has associated herself with well-known activist judges who use their power to redefine the meaning of the words of our Constitution and laws in ways that, not surprisingly, have the result of advancing the judge’s preferred social policies for the country.

She clerked for Judge Mikva and Justice Marshall, each a well-known liberal activist judge. And she has called Israeli Judge Aharon Barak - who has been described as the most activist judge in the world- her hero.These judges don’t deny activism; they advocate it. And they openly oppose the idea of a judge as a neutral umpire."
Marshall's activism is the pride of  the Supreme Court, in my view, and that of all of us who knew the correct answer to the question "which side are you on?"

NJ: Eye-witness ID Special Master Urges Stricter Scrutiny of Testimony

 Image: Geoffrey Gaulkin
Last year the New Jersey Supreme Court, in State v. Henderson, remanded the eye-witness identification case "for a hearing to consider and decide whether the assumptions and other factors reflected in the two-part Manson/Madison test, as well as the five factors outlined in those cases to determine reliability, remain valid and appropriate in light of recent scientific and other evidence."  


In State v. Madison 109 NJ 223 (1988) the court had held 

• [A] court must first decide whether the procedure in question was in fact impermissibly suggestive. If the court does find the procedure impermissibly suggestive, it must then decide whether the objectionable procedure resulted in a “very substantial likelihood of irreparable misidentification.”

The test was an open door for flimsy testimony.  The New Jersey Supreme Court was in the vanguard of courts who paid heightened attention to the need to assure that scientific expert testimony was based on "sound methods", but as Michael Risinger showed, the post-Daubert stiffening of judicial attitudes to scientific evidence stopped at the prosecutor's door.  


The test’s high barrier (proof of undue suggestiveness by police) left the door open wide for unreliable testimony testimony.  In recent years the problem has been highlighted by The Innocence Project.  Their data shows that as of May 13, 2010, 254 wrongfully convicted persons had been exculpated by DNA evidence; 75% of those convictions involved erroneous eyewitness identifications. [ See Innocence Project, Facts on Post-Conviction DNA  Exonerations, www.innocenceproject.org/Content/Facts_on_
PostConviction_DNA_Exonerations.php]


Persistence by New Jersey's Public Defender and its allies has paid off.  The Supreme Court appointed retired Appellate Division judge Geoffrey Gaulkin as special master.   He conducted a seminar, in which the Public Defender, aided by the Innocence Project and the Association of Criminal Defense Lawyers, and Prof. Risinger as amicus,  presented social science evidence about the weaknesses of eyewitness identification evidence.


Gaulkin's report to the Supreme Court systematically reviews the scientific evidence, rejects the prosecutor's stand-pat approach, and urges the high court to adopt a key remedy - - shifting the burden to the party offering the evidence:

First, it would be both appropriate and useful for the courts to handle eyewitness identifications in the same manner they handle physical trace evidence and scientific evidence, by placing at least an initial burden on the prosecution to produce, at a pretrial hearing, evidence of the reliability of the evidence. Such a procedure would broaden the reliability inquiry beyond police misconduct to evaluate memory as fragile, difficult to verify and subject to contamination from initial encoding to ultimate reporting.

Civil and criminal standards are brought into parity by Gaulkin's approach because the focus is on reliability - without the barrier of showing impermissible suggestiveness.  We now await the New Jersey Supreme Court's response.


The Gaulkin report is HERE.

N.J. Supreme Court: Should we adopt Massachusetts RPC 1.6 (b): lawyer may reveal confidences “to prevent wrongful execution or incarceration”?

The New Jersey Supreme Court’s Professional Responsibility Rules Committee has informed members of the bar that the Supreme Court has asked the Committee:

Should an attorney be required to maintain the confidentiality of information relating the representation of a client where the information demonstrates that an innocent person has been wrongly convicted of a crime with significant penal consequences?

New Jersey RPC 1.6 (b) Confidentiality of Information currently provides

(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:

(1) to prevent reasonably certain death or substantial bodily harm

The Court has directed the Committee’s attention to Mass Jud. Ct. R. 3:07, which provides, in Massachusetts RPC 1.6 (b)(1)

A lawyer may “reveal . . . [confidential information relating to the representation of a client] . . . to prevent the wrongful execution or incarceration of another.”

The Committee has invited the state’s bar associations to comment on the suggestion by August 13, 2010.

Failure of Rig’s Last Line of Defense Tied to Myriad Factors - NYTimes.com

Most mechanical design defect cases end up like the Challenger inquiry. Richard Feynmann, playing with a rubber ring in a glass of ice water, showed how obvious was the problem with the rubber O-rings that failed, leaking fuel, bringing destruction to the craft and crew.  Pride is, of course, the first sin.  And plenty of that is available for review on the Deepwater Horizon.   It lies behind all the big screw-ups - usually because the underestimation of human frailty is aggravated by cupidity.

The New York Times team here presents the story of the single valve which had to work to cut off the flow of oil when things went wrong.  There was no alternative, there was no back-up and failure was an option.  How many people knew?  Lots.  Who were they?  Everybody who looked at it.  The Times' video graphic of the failed "shear ram" is particularly compelling.
Failure of Rig’s Last Line of Defense Tied to Myriad Factors - NYTimes.com