The Trailer: What we learned about Buttigieg 2020 this weekend - The Washington Post

The Trailer: What we learned about Buttigieg 2020 this weekend - The Washington Post: In this edition: The Pete Buttigieg moment, the Mueller report and voters, and not quite an AIPAC boycott.
by Dave Weigel

Collusion Doesn’t Have to be Criminal to be an Ongoing Threat - Just Security

Collusion Doesn’t Have to be Criminal to be an Ongoing Threat - Just Security:  
by Alex finley, Asha Rangapa, John Sipher  DECEMBER 2017!

During the hearing with Deputy Attorney General Rod Rosenstein on Wednesday, some members of the House Judiciary Committee did not try to conceal their attempt to discredit and derail Special Counsel Robert Mueller’s investigation into possible collusion between the Trump campaign and Russia during the 2016 election. The way that the Russia investigation has been framed has made it easy for them to do that: Its legitimacy appears to rest on finding a smoking gun of criminality – a simple yes or no on whether any of the cast of characters in this saga committed a serious federal offence.

But making this merely about the bright line between illegality (criminality) and legality means that most Americans are missing what is right under our noses. To wit, there is no question that Russia made multiple, unprecedented attempts to penetrate a U.S. presidential campaign, that its approaches were not rebuffed, and that its contacts were sensitive enough that everyone, to a person, has concealed them. These facts might never be adjudicated inside a courtroom – they may not even be illegal – but they present a clear and present national security threat that we cannot ignore. We write here to broaden the public understanding of that security threat, and to underscore why the principal part of Mueller’s investigation—which is a counterintelligence probe not a criminal one—is performing a vital role for our country.

Assets: Tools In A Toolbox

Pelosi, Schumer Joint Statement On Attorney General Barr’s Summary Of The Mueller Report - Speaker Nancy Pelosi

Pelosi, Schumer Joint Statement On Attorney General Barr’s Summary Of The Mueller Report - Speaker Nancy Pelosi: Washington, D.C. – Today, Senate Democratic Leader Chuck Schumer and House Speaker Nancy Pelosi released the following statement regarding Attorney General Barr’s summary of the Mueller report.

Pelosi, Schumer Joint Statement On Attorney General Barr’s Summary Of The Mueller Report

MARCH 24, 2019

Washington, D.C. – Today, House Speaker Nancy Pelosi and Senate Democratic Leader Chuck Schumer released the following statement regarding Attorney General Barr’s summary of the Mueller report:

“Attorney General Barr’s letter raises as many questions as it answers.  The fact that Special Counsel Mueller’s report does not exonerate the president on a charge as serious as obstruction of justice demonstrates how urgent it is that the full report and underlying documentation be made public without any further delay.  Given Mr. Barr’s public record of bias against the Special Counsel’s inquiry, he is not a neutral observer and is not in a position to make objective determinations about the report.

“And most obviously, for the president to say he is completely exonerated directly contradicts the words of Mr. Mueller and is not to be taken with any degree of credibility.

“Congress requires the full report and the underlying documents so that the Committees can proceed with their independent work, including oversight and legislating to address any issues the Mueller report may raise.  The American people have a right to know.”

What we know. ~ Marcy Wheeler

https://www.emptywheel.net/2019/03/23/after-mueller-an-off-ramp-on-russia-for-the-venal-fucks/

For Theresa May, ‘I’m a tin-eared lunatic’ seems to be the hardest word | Marina Hyde | Opinion | The Guardian

For Theresa May, ‘I’m a tin-eared lunatic’ seems to be the hardest word | Marina Hyde | Opinion | The Guardian: 

Arriving at the EU summit this week, Theresa May had that purposeful air of a school superintendent walking up the drive to the Addams family mansion, determined that Wednesday and Pugsley should be enrolled in a conventional educational establishment without delay. Some long hours later, May staggered back down the drive much as that school superintendent might, short of having no shoes and an actual bat in her electrocuted hair. 
 And so to the latest scenes in the Brexit farce. The formula for successful farce-writing, as laid down in the 19th century, is to get your character up a tree in the first act, throw stones at them in the second, then get them down in the third. As far as Brexit goes, the UK went up the tree voluntarily, and has now been throwing human waste at itself for two and a half years. 
Does anyone want to come and get us down? Sorry, it’s quite … disgusting up here now. We have been given a fortnight’s grace to get our shit together – which was almost the formal wording on the communique My sole point of light this week was being told that David Cameron had finished his memoir – and that the publishers want him to cut 100,000 words from it. No idea what that ....

The Duke myth

http://bostonreview.net/class-inequality/nan-enstad-debunking-capitalist-cowboy

Discriminatory Driver's License Suspension Schemes - American Constitution Society

Danielle Conley of Wilmer Hale and former associate Ariel Levinson have authored an issue brief on Discriminatory License Suspension Schemes published by the American Constitution Society.  Driver's license suspension for debt drives low income people further into poverty, often piling job loss onto more punishment for driving while suspended.  Many states have moved to ameliorate these burdens, awareness of which has grown since the U.S. Department of Justice highlighted the problem of the burdens of fines and court penalties place on low income people in Ferguson, Missouri.  
A New Jersey judge has declared void the state's automatic suspension policy for child support delinquencies.  Imposed without notice and without an opportunity to be heard on ability to pay, the state has been ordered in Kavadas v. Martinez to provide hearings and counsel at state expense.

Don't recognize Golan as Israeli territory ~ Hussein Ibish. Bloomberg

https://www.bloomberg.com/opinion/articles/2019-03-20/golan-annexation-by-israel-shouldn-t-get-u-s-recognition

Pete Buttegieg on James Joyce

https://www.esquire.com/news-politics/a26861236/peter-buttigieg-interview/

What the Candidates in Israel’s Elections Say about the Conflict – LobeLog

What the Candidates in Israel’s Elections Say about the Conflict – LobeLog: by Dahlia Scheindlin 972
The scramble to predict who might win the Israeli elections is understandable, but it begs a towering question: Will the next government actually change anything? To hone in fu…

Legal Deserts - Crisis in Rural America ACS/Harvard Law & Policy Review

 The American Constitution Society and  the Harvard Law and Policy Review have announced a new issue on the crisis of  justice in rural areas. 

The American Constitution Society is pleased to announce the release of Harvard Law & Policy Review (HLPR) Volume 13.1 Revitalizing Rural America. Published twice annually, HLPR is the official law review of ACS. This journal provides a forum for substantive debate between progressive legal scholars, policymakers, and practitioners, with a focus on promoting scholarship through practical application to societal challenges. Descriptions and links to the articles in Volume 13.1 can be found below. Foreword James J. Sandman and Ronald S. Flagg The President and General Counsel of the Legal Services Corporation describe the challenges of providing legal services to low-income rural residents and identify key strategies for meeting those challenges. Legal Deserts: A Multi-State Perspective on Rural Access to Justice Lisa R. Pruitt, Amanda L. Kool, Lauren Sudeall, Michelle Statz, Danielle M. Conway, and Hannah Haksgaard Six of the leading academic voices on the rural access-to-justice crisis survey legal deserts in California, Georgia, Maine, Minnesota, South Dakota, and Wisconsin, exploring common themes and the ways that justice system stakeholders—including legal educators—can fill the gap. The Neighbors Who Feed Us: Farmworkers and Government Policy- Challenges and Solutions Alexis Guild and Iris Figueroa Ms. Guild and Ms. Figueroa, of Farmworker Justice, highlight the vulnerability of farmworkers with respect to immigration, labor, occupational health and safety, and health-care policy, and propose concrete solutions to revitalize farmworker communities. Rural Blight Ann M. Eisenberg Developing an underexplored area of legal scholarship, Professor Eisenberg shows how blighted rural properties implicate law and policy and discusses solutions at the local, state, and regional levels. Rural Health, Universality, and Legislative Targeting Nicole Huberfeld Professor Huberfeld looks at state resistance to the Affordable Care Act and concludes that targeted legislation—as opposed to universal social programs like the ACA—can only minimally improve rural health disparities. Also featuring: Shelter-in-Place: Reducing Displacement and Increasing Inclusion in Gentrifying Neighborhoods Ryan Cohen Through case studies of Detroit and Los Angeles, Ms. Cohen examines gentrification and provides guidance on how governments can protect low-income communities from displacement and immobility with tailored policy interventions. Reforming Unemployment Insurance in the Age of Non-Standard Work Jeremy Pilaar The number of workers receiving unemployment insurance has declined substantially in recent decades. Examining this problem, Mr. Pilaar suggests that the rise of temporary, contract, and other non-standard employment may explain the change, and proposes reforms to combat this imbalance.

New Jersey Supreme Court Rejects Mandatory Malpractice Insurance, embraces disclosure of coverage

The New Jersey Supreme Court has issued a Notice to the Bar.  It has rejected in part, accepted in part, and deferred in part the recommendations of its Ad Hoc Committee on Attorney Malpractice Insurance.  It concurred with the November 2017 report recommendation that malpractice insurance not be mandated for all private practitioners.  The Court retains its Rule 1:21-1A that all limited liability firms must carry insurance in the minimum amount of $100,000 (multiplied by the number of attorneys in the firm). The Court concurred with its Committee that lawyers be required to publicly register evidence of the coverage they carry.  The Administrative Office of the Courts is directed to develop procudures to implement the principle.  And the Court announced that it will revisit at an unspecified date whether attorneys who lack coverage should be required to disclose that fact. - gwc

Birch Bayh - Senator of a more civil political time - GEORGE VECSEY

Reviews - GEORGE VECSEY: Birch Bayh called me at the Times about a decade ago. I was curious why a former US senator wanted to talk to a sports columnist, and of course I called him back. Now I can’t remember the reason he...

Why it's a mistake to be a-waitin' "the" Mueller Report (and why you should instead focus on two other reports) - Just Security

Why it's a mistake to be a-waitin' "the" Mueller Report (and why you should instead focus on two other reports) - Just Security: OLC’s governing view of the constitutionality of a grand jury indictment of a sitting president therefore doesn't stand in the way of DOJ providing a comprehensive account to Congress and the public of the facts uncovered in the Russia investigation.
by Mary Lederman (Georgetown Law School)

Last Thursday, the House of Representatives passed a resolution, by a resounding vote of 420-0, calling for Robert Mueller’s Section 600.8(c) report explaining his prosecution and declination decisions—a report he’s required to submit to Attorney General Barr at the “conclusion of [his] work”—to be released to Congress in “full” and to be released to the public “except to the extent the public disclosure of any portion thereof is expressly prohibited by law.”

In a new Op-Ed in the Washington Post I explain that this so-called “Mueller Report” probably won’t see the light of day . . . but that that’s not as troubling as it might appear at first glance, for two reasons.

First, we’ll already know most of what’s in Mueller’s report to Barr, because the information is already right out there in the public record, in the many grand jury indictments and other court filings that already are, or soon will be, widely available.  The only substantive parts of the report that won’t be transparent, then, are Mueller’s explanations of why he chose not to seek indictments of others — possibly including the President.

Second, Mueller’s report to Barr is only one of three or more “reports” that ought to emerge when the Russia investigation ends.  And at least two of those other reports, which will be submitted to Congress and parts of which may well become public, are likely to be far more revealing and more significant than the so-called “Mueller Report”:

(i)  Barr’s own Section 600.9(a)(3) notification to the judiciary committees—which presumably Mueller will have drafted in large part—can be, and should be, a comprehensive account of the Russia investigation, consistent with Barr’s promise to senators in connection with his confirmation hearing that because “it is very important that the public and Congress be informed of the results of the Special Counsel’s work . . . my goal will be to provide as much transparency as I can consistent with the law.”  That report might well reveal a great deal of factual information about President Trump’s actions involving Russia.  We should not expect it, however, to include Mueller’s assessment about whether there are grounds to ask a grand jury to bring criminal charges against Trump after he leaves office, nor to offer any conclusions about whether Trump’s conduct did or did not satisfy the elements of any particular criminal offenses.  Accordingly, as long as Trump is in office it will be up to the committees themselves—and Congress as a whole—to (in the words of the Jaworski road map) “determine what action may be warranted . . . by [the] evidence” presented in Barr’s notification.

(ii) It’s likely, however, that the most important “report” of them all will be the briefing that DOJ must provide to the congressional intelligence committees conveying the results of the counterintelligence investigation Mueller has superintended.  In order to comply with the requirement of keeping those committees “fully and currently informed” of the results of the investigation, that briefing—which will probably include at least some written document—should include Mueller’s assessment, if any, about whether, how and to what extent Trump is compromised or is otherwise unable to perform his constitutional duties on behalf of the nation when it comes to the Russian threat to our electoral system.  Does Trump have financial obligations to Russian interests?  Was he — and does he continue to be —motivated by the prospects of a Moscow Trump Tower?  Does Russian intelligence have kompromat on Trump that makes him susceptible to undue influence?  Or is there a more benign explanation for Trump’s otherwise inexplicable conduct regarding Russia and Putin?  The counterintelligence investigation’s answers to these and similar questions — especially its assessment, if any, of the President’s current capacity to address the foreign threat — are of far greater current importance to the functioning of our government than determining whether Trump’s conduct in 2016-2017 violated any particular criminal statutes.

Of course, the FBI and the intelligence committees rarely disclose the results of counterintelligence investigations to the public, for obvious reasons:  In the ordinary case, much of the information is classified because it could reveal sensitive sources or methods and because there’s an interest in not revealing to the foreign subjects of the investigation what our government has learned about their activities.  This is far from an ordinary case, however.  Congress and the public have a critical need to know whether and to what extent the president is compromised and whether he’s fit to respond to the Russian threat without fear or favor.  It’s therefore safe to assume Mueller will try to convey such information to the committees in a form that permits the greatest possible dissemination consistent with national security imperatives.  At which point it will primarily be the responsibility of the chairs of the committees — Richard Burr (R-N.C.) in the Senate and Adam B. Schiff (D-Calif.) in the House — to assess how much of the information they can and should share with the rest of Congress and the public.

In the remainder of this post I’ll try to fill in some of the legal details that space constraints precluded me from including in the Op-Ed, in the context of answering some of the questions the Op-Ed naturally raises.

ISP Liability: China's internet court said Wechat is not obliged to disconnect portal to a Mini-Program upon notification of copyright infringing content

This post is a stub.  This is an important decision which presents an opportunity to look at the notice and take down provisions of the 2010 Tort Law - which it is expected will be preserved in the draft civil code.  The Supreme People's Court in November 2014 issued a set of rules governing such claims.  I'll have more to say about this development. - gwc
ISP Liability: China's internet court said Wechat is not obliged to disconnect portal to a Mini-Program upon notification of copyright infringing content: In a recent decision issued by the Hangzhou Internet Court on 27 February 2019, the Court finds that Wechat is not liable for copyright infringing content uploaded to three Mini-Programs ran via its public account platform.
by Christine Yiu
Bird & Bird

In a recent decision issued by the Hangzhou Internet Court on 27 February 2019, the Court finds that Wechat is not liable for copyright infringing content uploaded to three Mini-Programs ran via its public account platform. The case relates to a copyrighted series of online psychology tutorials taught by a KOL. The plaintiff Daodou enjoys an exclusive licence of the online dissemination right to the copyright work. Daodou discovered that infringing copies of the tutorials were made available on three separate Mini-Programs ran by the first defendant Baizhan. Daodou thus complained to Wechat and requested that it uses its power as the platform owner to disconnect the three Mini-Programs.  Wechat argued that it does not have the obligation to do so under the law and also in view of objective technical reasons.

"I have the support of the police..." Trump warns

You can't say we were never warned. - gwc

Daniel Dale - Toronto Star

 @ddale8

Trump to Breitbart on how the left plays tough: "I have the support of the police, the support of the military, the support of the Bikers for Trump — I have the tough people, but they don’t play it tough — until they go to a certain point and then it would be very bad, very bad."

7:10 AM - 14 Mar 2019

Tanker oil spill in the Bohai bay near Tianjin, China | EJAtlas

Tanker oil spill in the Bohai bay near Tianjin, China | EJAtlas: Collision of two vessels caused a massive oil spill in the Bohai sea leading to heavy pollution of the maritime ecological system. The following lawsuit served as a landmark for similar cases in China.

On Lawrence Freedman on Law & society

Legal Theory - Law and Society:  
Discussions of law are often divided between two very different perspectives -- what has been called the "external" and "internal" points of view. Prominent Law and Society scholars adopt a similar distinction when they call for an "outside" instead of an "inside" perspective on law. Most law schools (especially during the first year) concentrate on teaching an "inside" perspective, an internal - doctrinal framework as the model for "thinking like a lawyer." 
This internal - doctrinal perspective has some similarity to the "legal formalism" and "conceptualism" that Progressives and Legal Realists had been denouncing since the turn of the century. One of the most important characteristics of the formalism of late nineteenth century Classical Legal Thought was the way in which it represented its closed, internalistic point of view as "neutral, natural and necessary." The Law and Society movement arose as an extension of Legal Realism’s effort to criticize the dominantly internalistic point of view in Classical Legal Thought for having produced a "heaven of legal concepts" unrelated to the real world. 

The Law and Society perspective, like much of Legal Realism, treats law not as a closed system with an internal logic all its own but as the product of various external influences, like power, history and social, economic, and cultural influences. When Holmes proclaimed that "the life of law has not been logic; it has been experience," he was attacking an exclusively internalistic perspective that produced false certainty by confusing legal reasoning with mathematical or geometrical reasoning. 
Another influence on the Law and Society movement was the Sociological Jurisprudence of Roscoe Pound. Pound had also delivered a powerful critique of late-nineteenth century classical legal thought for having lost touch with society’s needs. Pound distinguished the "law in books" from the "law in action", and followed Holmes in deploring the increasing separation of the two.
After Holmes, this was the second intellectual seed from which the twentieth century Law and Society movement was spawned. It became the basis for Pound’s own "sociological jurisprudence," which, in turn, laid the foundation for studying why there has often existed a substantial "lag" or "gap" between social change and legal change . The Brandeis Brief is the most famous application of Pound’s ideas to the actual practice of legal argument . Brandeis and Justice Benjamin Cardozo were the foremost judicial proponents of Pound’s ideas.  Here we should note the convergence between the anthropologists highlighting "cultural lag" and the Progressive followers of sociological jurisprudence who sought to explain "legal lag," e.g., why law had lost touch with life -- why, for example, law had often failed to respond to the shift from an agricultural to an industrial society .The idea of "legal lag" figures prominently in the opinions both in Brown v. Board of Education and the assisted suicide cases.
Finally, Law and Society scholars were influenced by the Realists’ reconceptualization of legal rights . Legal Realists emphasized that the way to determine in practice whether a legal right exists is by studying what remedies the law actually allows. In contract law, for example, the Realists shifted the focus to different theories of damages (e.g., reliance vs. expectancy damages) ₅.

For Lawrence Friedman "The law and society movement is the scholarly enterprise that explains or describes legal phenomena in social terms." The work of Law and Society falls into a few broad classes: KEEP READING

The politics of China’s ‘rule of law’ - Inkstone

Northwestern University's William Hurst sees a central divide in the development of the Chinese legal system.  In criminal law non-legal (mainly Party) actors intervene to prevent and contain any action challenging the CP .  But civil law develops in a more normalized way. Of course the pervasive censorship is Orwellian.  But progress in civil justice nevertheless advances in many respects. - gwc
The politics of China’s ‘rule of law’ - Inkstone: Everybody loves “rule of law,” or at least loves invoking it to score points. ...
by William Hurst

Harvard Law Prof Defends Decision to Represent Weinstein

Ronald Sullivan, a former Public Defender and the Director of Harvard Law's criminal justice program, is one of the most prominent criminal defense lawyers in the country.  An African American long associated with criminal justice reform, he has drawn disapproval from some for signing on to the defense team of Harvey Weinstein, the Hollywood mogul now under indictment for sexual assault.

After students criticized him, including the editors of the student-edited daily Harvard Crimson fifty two Harvard Law Professors rose to his defense in an open letter. 
Sullivan has now defended himself in a long interview published today in the New York magazine.

- GWC