Friday, February 12, 2016

A Clarifying Encounter - Hillary v. Bernie //Josh Marshall // Talking Points Memo

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No soundbite can resolve the strategic divide between Hillary Clinton and Bernie Sanders; between an overarching left message of economic equality, and a broader, more pragmatic, and therefore less inspiring message.  The two candidates are rivals but not enemies.  I urge progressives not to indulge in character assassination or hagiography.  But instead to ask the questions: How to hold on to the Presidency?  Retake the Senate? Hold gains and move forward despite the GOP hold on the House of Representatives (perhaps Senate) - and a strong position in State Houses and State Legislatures? Josh Marshall's discussion of last night's debate frames the divide well. - gwc
A Clarifying Encounter
by Josh Marshall // Talking Points Memo

I cannot help noting the quality of this debate itself - how it was organized, the moderators, the quality of the questions. It was a throwback, but a good one. I do not think it was an accident that this one was organized by PBS or that they managed to bring it to a punctual conclusion. After all, this wasn't a ratings or a ad sales driver for them.

On the candidates, I thought the debate began very well for Clinton and quite shaky for Sanders. He got a very basic question about the size of government, one he would certainly get in a general election and one which I do not think he should shy away from. But he wouldn't touch it. Clinton was as strong and specific as he was hesitating and resistant to addressing specifics.

As the debate went on though I thought it became more of an even match. I cannot help but say that it surprises me that Sanders is as quick on his feet as he's managed to get in these debates. That may sound a bit condescending. After all Sanders is in his seventies and he's been in politics for decades. But there's nothing quite like the intensity of big national presidential debates. I don't care how long you've been a politician or how many local or even state debates you've been in. There's nothing like it. And virtually no one is a natural.

KEEP READING

Expanding Coercive Treatment Is The Wrong Solution For The Opioid Crisis

Americans are suckers for "get tough" approaches. Though we are moving toward a a public health vision of how to deal with drug addiction, remnants of the old punitive approach persist. One of these is the move to coercive treatment. - gwcExpanding Coercive Treatment Is The Wrong Solution For The Opioid Crisis
by Leo Beletsky, Wendy Parmet, (Northeastern) and Amit Sarpatwari (Harvard)

Amidst a surging crisis of opioid abuse and overdoses, many policymakers have called for expanded use of coercive treatment. Many states, including Massachusetts, already allow physicians, police, and court officers to seek a court order authorizing involuntary addiction treatment (formally referred to as substance use disorder (SUD)). But new legislation, The Act Relative to Substance Use Treatment, Education, and Prevention (STEP) currently before the Massachusetts state legislature (H.3944) could expand the scope of involuntary treatment and reduce judicial oversight.

This proposal is an ill-considered response to a public health crisis. To be sure, policymakers face an understandable pressure to take decisive action. But this approach fails to balance that imperative for speed and public confidence with sound scientific, legal, and ethical principles.
The Legislation

As originally introduced by Massachusetts Governor Charlie Baker, The STEP Act would allow licensed physicians, nurse specialists, psychologists, and social workers (or, when such personnel are unavailable, the police) to impose a new 72-hour “hold.” During this three-day period, an individual could be restrained for emergency treatment and compelled to enter an inpatient treatment facility based solely on a reasonable belief “that failure to commit … would create a likelihood of serious harm.”

Following the 72-hours, the patient must be discharged unless he or she consents to treatment or a court orders commitment. A patient can request an emergency hearing to challenge the 72-hour hold, but neither a court order nor diagnosis by an addiction specialist would be necessary to authorize the initial detention.

Although this provision does not appear in the version of the Bill recently passed by the Massachusetts House, there are efforts to re-introduce it into the text as the House and Senate work to develop a final bill amenable to both bodies; there are also a number of other jurisdictions that may be considering similar policy tools.

The opioid crisis has complex underlying causes and defies simple solutions, but there is broad agreement that the treatment gap is a major driver of the current epidemic. Overall, only 11 percent of patients with SUDs are estimated to be receiving science-based treatment. In Governor Baker’s words, the STEP Act would tackle this problem by opening a “wider window” for emergency department personnel, other health care providers, and even concerned family members to engage SUD-affected individuals in treatment and risk-reduction interventions following acute episodes (e.g., non-fatal overdose).

Amidst a surging crisis of opioid abuse and overdoses, many policymakers have called for expanded use of coercive treatment. Many states, including Massachusetts, already allow physicians, police, and court officers to seek a court order authorizing involuntary addiction treatment (formally referred to as substance use disorder (SUD)). But new legislation, The Act Relative to Substance Use Treatment, Education, and Prevention (STEP) currently before the Massachusetts state legislature (H.3944) could expand the scope of involuntary treatment and reduce judicial oversight.

This proposal is an ill-considered response to a public health crisis. To be sure, policymakers face an understandable pressure to take decisive action. But this approach fails to balance that imperative for speed and public confidence with sound scientific, legal, and ethical principles.
The Legislation
As originally introduced by Massachusetts Governor Charlie Baker, The STEP Act would allow licensed physicians, nurse specialists, psychologists, and social workers (or, when such personnel are unavailable, the police) to impose a new 72-hour “hold.” During this three-day period, an individual could be restrained for emergency treatment and compelled to enter an inpatient treatment facility based solely on a reasonable belief “that failure to commit … would create a likelihood of serious harm.”

Following the 72-hours, the patient must be discharged unless he or she consents to treatment or a court orders commitment. A patient can request an emergency hearing to challenge the 72-hour hold, but neither a court order nor diagnosis by an addiction specialist would be necessary to authorize the initial detention.

Although this provision does not appear in the version of the Bill recently passed by the Massachusetts House, there are efforts to re-introduce it into the text as the House and Senate work to develop a final bill amenable to both bodies; there are also a number of other jurisdictions that may be considering similar policy tools.

The opioid crisis has complex underlying causes and defies simple solutions, but there is broad agreement that the treatment gap is a major driver of the current epidemic. Overall, only 11 percent of patients with SUDs are estimated to be receiving science-based treatment. In Governor Baker’s words, the STEP Act would tackle this problem by opening a “wider window” for emergency department personnel, other health care providers, and even concerned family members to engage SUD-affected individuals in treatment and risk-reduction interventions following acute episodes (e.g., non-fatal overdose).

Thursday, February 11, 2016

The G.O.P. Created Donald Trump - The New York Times

Kristof:  Calls is straight: "Donald Trump is the consequence of irresponsible politicking by Republican leaders, the culmination of decades of cultivating unrealistic expectations within the politics of resentment. It’s good to see leading Republicans standing up to him today, but the situation recalls the Chinese saying, qi hu nan xia 奇虎难下— when you’re riding a tiger, the hard part is getting off."
The G.O.P. Created Donald Trump - The New York Times 

Wednesday, February 10, 2016

Tuesday, February 9, 2016

Pussyfooting around torture | xpostfactoid

Pussyfooting around torture | xpostfactoid
by Andrew Sprung
Last night, Twitter flared up in response to the latest Trump provocation. Taking up a cry of passion from an audience member, Trump had called Ted Cruz a pussy. He'd crossed another red line, one tweet proclaimed. He could be the first New Hampshire primary winner to use the epithet, said another.

Taking a very back seat was what the taunt purported. Trump was mocking Cruz for hesitating in his support of waterboarding -- the war crime for which the U.S. had executed enemies, the simulated death experience that the Bush administration had sanctioned as official U.S. policy. Trump has promised to do "a hell of a lot worse" -- that is, put the U.S. in permanent, proudly proclaimed violation of the Geneva Conventions, the international Convention Against Torture signed by Ronald Reagan, and the U.S. Constitution's ban on cruel and unusual punishment.

Cruz, for his part, asserts that waterboarding isn't torture, taking as his authority the discredited and withdrawn "Bybee memo" from the Bush administration Justice Department that limited the definition of torture to punishment that induces pain equal to organ failure or death. He's also called for carpet bombing regions in which ISIS holds a civilian population hostage and relaxing efforts to minimize civilian casualties. He's also evinced since his early manhood an unsavory passion for the death penalty. But he's not sadistic enough to meet Trump's standard of leadership.

It's not meaningless that Trump chose a feminizing epithet to denigrate his rival, and one that associates femininity with vulnerability to being dominated. But the epithet was hardly the point. Lost in the grade-school reaction was the appalling fact that a presidential frontrunner was whipping up a crowd's enthusiasm for torture, and taunting a rival for expressing some ambivalence about it. And in fact, re-instituting torture as official U.S. policy is a near-consensus position among Republican candidates (Cruz says he opposes torture, but then defines a practice universally considered torture outside the GOP as not-torture). Oppose it, and you're a pussy in the Foxosophere.

We are watching democracy degrade before our eyes. It's not done yet; the Democratic debates are an alternate universe, in which policy and political philosophy are debated civilly and with reference to facts. But one major party, primed for years by a sensationalist media that amplifies its worst impulses, is trafficking in dreams of mass deportation, mass murder (via carpet bombing), and institutionalized torture.

We are hanging by a thread. And the dominant reaction, when the promise of Nazi policies is on most naked display, is "He said pussy!!"

- See more at: http://xpostfactoid.blogspot.com/2016/02/pussyfooting-around-torture.html#sthash.k8Juwojn.dpuf

Chris Christie heading home to take a deep breath

AP: BREAKING: Christie heading home to New Jersey to 'take a deep breath,' take stock of presidential bid

The winnowing continues. He played his part upon the stage, taking out Marco Rubio.

Ta-Nehisi Coates on Race, Class, and Reparations - The Atlantic


Ta-Nehisi Coates on Race, Class, and Reparations - The Atlantic

by Ta Nehisi Coates
There have been a number of useful entries in the weeks since Senator Bernie Sanders declared himself against reparations. Perhaps the most clarifying comes from Cedric Johnson in a piece entitled, “An Open Letter To Ta-Nehisi Coates And The Liberals Who Love Him.” Johnson’s essay offers those of us interested in the problem of white supremacy and the question of economic class the chance to tease out how, and where, these two problems intersect. In Johnson’s rendition, racism, in and of itself, holds limited explanatory power when looking at the socio-economic problems which beset African Americans. “We continue to reach for old modes of analysis in the face of a changed world,” writes Johnson. “One where blackness is still derogated but anti-black racism is not the principal determinant of material conditions and economic mobility for many African Americans.”

Johnson goes on to classify racism among other varieties of -isms whose primary purpose is “to advance exploitation on terms that are most favorable to investor class interests.” From this perspective, the absence of specific anti-racist solutions from Bernie Sanders, as well as his rejection of reparations, make sense. By Johnson’s lights, racism is a secondary concern, and to the extent that it is a concern at all, it is weapon deployed to advance the interest of a plutocratic minority.



Why Precisely Is Bernie Sanders Against Reparations?

At various points in my life, I have subscribed to some version of Johnson’s argument. I did not always believe in reparations. In the past, I generally thought that the problem of white supremacy could be dealt through the sort of broad economic policy favored by Johnson and his candidate of choice. But eventually, I came to believe that white supremacy was a force in and of itself, a vector often intersecting with class, but also operating independent of it.

Nevertheless, my basic feelings about the kind of America in which I want to live have not changed. I think a world with equal access to safe, quality, and affordable education; with the right to health care; with strong restrictions on massive wealth accumulation; with guaranteed childcare; and with access to the full gamut of birth-control, including abortion, is a better world. But I do not believe that if this world were realized, the problem of white supremacy would dissipate, anymore than I believe that if reparations were realized, the problems of economic inequality would dissipate. In either case, the notion that one solution is the answer to the other problem is not serious policy. It is a palliative.

Carbon pollution controls put on hold : SCOTUSblog

The conservative justices of the Supreme Court voted to stay the Obama administration's regulations compelling coal burning power plants to reduce emissions is a triumph for the anti-environmental politics of the American political right.  I do not expect them to stop denouncing judicial activism.  They'll just be "activist" and claim they are following the letter of the law.  - gwc
Carbon pollution controls put on hold : SCOTUSblog
by Lyle Denniston
Dividing five to four, the Supreme Court on Tuesday evening ordered the Obama administration not to take any steps to carry out its “Clean Power Plan,” a move that may stall the plan until after the president leaves office next January. The order — issued in identical form in individual responses to five separate challenges — will spare the operators of coal-fired power plants from having to do anything to begin planning for a shift to energy sources that the government considers to be cleaner. (An example of the five orders is this one, issued in a case filed by twenty-nine states.)

The plan, designed to make sharp reductions in carbon pollution from the smokestacks of generating plants fueled by fossil sources, is now under review by the U.S. Court of Appeals for the District of Columbia Circuit. It has put the case on an expedited schedule, with a hearing set for June 2. However, it may not finish its ruling until this fall, and then either side may try to move the case on to the Supreme Court.

The new orders will delay all parts of the plan, including all deadlines that would stretch on into 2030, until after the D.C. Circuit completes its review and the Supreme Court has finished, if the case does wind up there. There appears to be little chance for those two stages of review to be over by the time President Obama’s term ends next January 20.

ABA adopts Model Regulatory Objectives for the Provision of Legal Services – Professional Responsibility: A Contemporary Approach

by Renee Knake // Michigan State School of Law

At yesterday’s Midyear Meeting, the ABA House of Delegates adopted Resolution 105, Model Regulatory Objectives for the Provision of Legal Services. This resolution is a product of the ABA Commission on the Future of Legal Services. (Disclaimer, I am a Reporter for the Commission.) Coverage from the ABA is here, the ABA Journal is here, and the American Lawyer is here. For information on the purpose of regulatory objectives generally, see Professional Responsibility: A Contemporary Approach co-author Laurel Terry’s seminal workon this topic, and for more background on the development of the ABA Model Regulatory Objectives specifically, see the Commission’s Report.

Here is the resolution in full:
RESOLUTION
RESOLVED, That the American Bar Association adopts the ABA Model Regulatory Objectives for the Provision of Legal Services, dated February, 2016.
ABA Model Regulatory Objectives for the Provision of Legal Services
A. Protection of the public
B. Advancement of the administration of justice and the rule of law
C. Meaningful access to justice and information about the law, legal issues, and the civil and criminal justice systems
D. Transparency regarding the nature and scope of legal services to be provided, the credentials of those who provide them, and the availability of regulatory protections
E. Delivery of affordable and accessible legal services
F. Efficient, competent, and ethical delivery of legal services
G. Protection of privileged and confidential information
H. Independence of professional judgment
I. Accessible civil remedies for negligence and breach of other duties owed, and disciplinary sanctions for misconduct
J. Diversity and inclusion among legal services providers and freedom from discrimination for those receiving legal services and in the justice system
FURTHER RESOLVED, That the American Bar Association urges that each state’s highest court, and those of each territory and tribe, be guided by the ABA Model Regulatory Objectives for the Provision of Legal Services when they assess the court’s existing regulatory framework and any other regulations they may choose to develop concerning non-traditional legal service providers.
FURTHER RESOLVED, that nothing contained in this Resolution abrogates in any manner existing ABA policy prohibiting non lawyer ownership of law firms or the core values adopted by the House of Delegates in Resolution 10F, adopted on July 11, 2000.

Monday, February 8, 2016

Clinton Can Govern More Effectively Than Sanders - Norman Ornstein - The Atlantic

Norman Ornstein - of the conservative American Enterprise Institute - is one of the most competent observers of the American political system. His "It's even worse than it looks" described the Republican party's descent into anti-government obstructionism. To stick with my own favorite talking point:  the Democratic Party should not nominate someone who has never joined the Democratic Party.  - gwc

Clinton Can Govern More Effectively Than Sanders - The Atlantic

by Norman Ornstein  // American Enterprise Institute

Bernie Sanders and Ted Cruz have something in common. Both have an electoral strategy predicated on the ability of a purist candidate to revolutionize the electorate—bringing droves of chronic non-voters to the polls because at last they have a choice, not an echo—and along the way transforming the political system. Sanders can point to his large crowds and impressive, even astonishing, success at tapping into a small-donor base that exceeds, in breadth and depth, the remarkable one built in 2008 by Barack Obama. Cruz points to his extraordinarily sophisticated voter-identification operation, one that certainly seemed to do the trick in Iowa.

But is there any real evidence that there is a hidden “sleeper cell” of potential voters who are waiting for the signal to emerge and transform the electorate? No.

Former NJ Chief Justice Poritz criticizes Christie, questions his legacy - NorthJersey.com

Former New Jersey Supreme Court Chief Justice Deborah Poritz
Former state Attorney General and Chief Justice of
New Jersey at a book party Q&A dismissed Chris Christie
as a "bully" without a legacy

New Jersey governor Chris Christie clobbered Marco Rubio as without accomplishment. But Deborah Poritz the first woman state Attorney General and later Chief Justice Deborah Poritz declared that the big man himself has little to show. Unless cutting teachers' pensions impresses you. ~gwc
Respected former NJ Supreme Court justice criticizes Christie, questions his legacy - News - NorthJersey.com
by Salvador Rizzo // The Record // NorthJersey.com

Deborah Poritz, a Republican who served as chief justice from 1996 to 2006, was among more than 100 attendees at a lecture room in the Princeton Public Library, where journalist Matt Katz was speaking and taking questions about his recently published biography of Christie, "American Governor."

At the end of a question-and-answer session, Poritz raised her hand, was handed a microphone from an attendant, and proceeded to criticize Christie's record.

She asked Katz, who had described some of Christie's political talents during his talk, to give examples of how Christie had used those talents "for the benefit of the people of New Jersey." She mentioned the state's ongoing problems funding transportation projects and road repairs. She called Christie a "bully" who has been "scapegoating public workers" in New Jersey for years. She took issue with Christie's budget cuts.

"What is his legacy?" Poritz asked. "Because I don't see any."

Katz offered some examples of Christie's accomplishments as governor, including a bipartisan-backed law he signed in his first term capping local property tax increases to 2 percent per year and a compromise he brokered last month with state lawmakers to place a question before voters on the November ballot on whether to allow casinos in northern New Jersey.

Seated in the front row, Poritz was not impressed. "She's not buying it," Katz told the audience after listing his examples and gauging her reaction.

Et tu, Chris? Is Marco Rubio a Dead Man Walking?



It has been my often expressed view that Marco Rubio would become the Republican nominee after the repulsive Ted Cruz and the too crude wild card Donald Trump flamed out.  I felt that he was the future because he has a decent set of GOP talking points, youthful handsome looks, rich backers, a rise from the working class story, and a good looking wife.  But Rubio wants to be President of the United States of America.  And for that you need to have heft. Marco Rubio doesn't have it as David Frum devastatingly demonstrates in a Twitter storm.

Barack Obama (who I did not support in the 2008 primaries) obviously had heft.  He wrote a serious, reflective autobiography.  Opposed the catastrophic Iraq war, and surmounted the Rev. Jeremiah Wright crisis in an impressive speech.  I was also influenced by his teaching materials as a Constitutional law teacher at the University of Chicago.  As a law teacher myself I saw that his course materials were very demanding.
As Rubio's moment approached in New Hampshire on Saturday night the novice Senator  tripped over his words and was thrown to the ground repeatedly by the verbally much stronger Gov.  Chris Christie.  
As a member of the Editorial Board of the New Jersey Law Journal I have gotten a lot of practice in rebutting Chris Christie.  So has Marco Rubio.  But Senator Rubio hasn't learned how to stand up to the big fat bully, who has owned him for weeks.  So I recant.  Marco Rubio will not be nominated.  I don't know what the GOP bigs are going to do.  But it won't be Marco Rubio in November.  He's not ready.  Watch the video below.


Sunday, February 7, 2016

The Supreme Court vs. the President - The New York Times

I think Linda Greenhouse is right to be alarmed. Justice Scalia sees state sovereignty in a pre~Civil War way. And federal authority as derivative, not primary. One consequence of viewing federal authority over the states as weak is that the President - as executive of a weak center - can be easily trimmed. Since his power is derivative and he is directed to "take care that the laws be faithfully executed" he is subject to Congressional command and his own discretionary choices narrow. By such logic the majority of the Supreme Court could strike the President's orders to forego the deportations that the immigration statutes authorize. ~gwc

The Supreme Court vs. the President - The New York Times
by Linda Greenhouse

Hard-wired into the Supreme Court’s DNA is the notion that the court doesn’t reach out to decide a constitutional issue if it can resolve a case by interpreting a statute. “The court will not anticipate a question of constitutional law in advance of the necessity of deciding it,” is how Justice Louis D. Brandeis expressed this principle of judicial restraint 80 years ago in a concurring opinion to which the court often makes reference.
 So the court’s action two weeks ago in accepting the Obama administration’s appeal in a major immigration case was startling. The surprise was not that the court agreed to hear the case, United States v. Texas, an appeal from a ruling that the president lacked authority under the immigration laws to defer deporting undocumented immigrants whose children are American citizens or lawful permanent residents. It was rather the blockbuster constitutional question that the justices added to the case, a question the court had not been asked, and one that neither of the lower federal courts had even addressed when they ruled on purely statutory grounds against the administration.

This is what the court said in its Jan. 19 order: “In addition to the questions presented by the petition, the parties are directed to brief and argue the following question: ‘Whether the Guidance violates the Take Care Clause of the Constitution, Art. II, §3.’ “

Wow. The “guidance” is the memo that established the deferred-action program, issued in November 2014 by Jeh Johnson, the secretary of Homeland Security. The Take Care Clause provides that the president “shall take care that the laws be faithfully executed.” It is a constitutional provision that the Supreme Court has hardly ever addressed directly. Justice Antonin Scalia invoked it years ago, in a1992 decision holding that environmental organizations lacked standing to challenge the adequacy of the Reagan administration’s enforcement of the Endangered Species Act.
Keep reading



Linda Greenhouse
The Supreme Court and the law.

Scalia’s Putsch at the Supreme Court


The Supreme Court and a Life Barely Lived


The Supreme Court’s Diversity Dilemma


Guns and Thunder on the Supreme Court’s Right


Sex After 50 at the Supreme Court

Friday, February 5, 2016

ABA Resolution Stirs Fears of Non-Lawyer Firm Ownership - Law Blog - WSJ

An ABA report and resolution scheduled for debate this week is opening the door to non-lawyer ownership of law firms.  Will there be McLaw firms? WalLawMart?
ABA Resolution Stirs Fears of Non-Lawyer Firm Ownership - Law Blog - WSJ
by Jacob Gershman // Wall Street Journal
A proposed resolution working its way up the American Bar Association sounds innocuous enough, if not completely decipherable.
It calls for the adoption of “regulatory objectives for the provision of legal services” that would help “identify and implement regulations related to legal services beyond the traditional regulation of the legal profession.”
But those words are stirring alarm among some local bar groups, which say it poses a grave threat to their profession.
How’s that you may ask?
The context surrounding the controversy is the long-simmering debate among the legal establishment over allowing non-lawyers to own stakes in law firms.
With the exception of the District of Columbia, no jurisdiction in the country permits non-lawyer ownership of law firms. Those who favor lifting the restriction say it would expand consumers’ access to legal services, spur innovation and reduce the cost of legal help.
But whenever the idea has been floated within the ABA, it’s gotten strong push-back. Giving people who don’t have a law license the ability to share firm profits would undermine the profession’s ethical obligations of client loyalty and confidentiality, critics argue. They fear that decision-making within firms would be influenced by investors or shareholders who aren’t bound by the same rules of conduct as licensed lawyers.
The tensions around the issue reflect a broader concern within the industry over emerging competitive threats from do-it-yourself legal services, outsourcing and new technology.
So it’s against that backdrop that the ABA’s Commission on the Future of Legal Services has proposed that “regulatory objectives” resolution. The commission says it’s trying to develop a guide that local bar authorities could use “when they assess their existing regulatory framework and any other regulations they may choose to develop concerning non-traditional legal service providers.”

A Quick Take on Tonight's Debate // Josh Marshall // Talking Points Memo

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I have often in litigation and politics taken the pole position - establishing a maximum position while recognizing that compromise was in the offing.

But my basic rule of thumb was that I wanted to reach agreement - a reasonable agreement. In the peace movement I made myself knowledgeable about the arms control agreements. I campaigned for arms control, not nuclear disarmament. That put me in the Mondale camp in 1984 when I was on the Democratic National Platform Committee.

Occasionally I went to trial -when there was no reasonable offer on the table. Sometimes that led to big wins. And sometimes to big losses. As a general rule I saw the value of the bird in hand and was loathe to put a decent offer at risk. That is how I feel about the Affordable Care Act. It's not the National Health Service or the Scandinavian system I would prefer. But I don't want to put the ACA's gains at risk for taking a long shot chance on a single-payer system that looks unachievable to me unless we somehow dislodged the GOP House majority.

That said, I see it the way Josh Marshall sees it here. - GWC

A Quick Take on Tonight's Debate -
by Josh Marshall //Talking Points Memo

I think we have two basic questions coming out of this debate - vision for the Democratic party and electability. Nor are these questions distinct. The issue of electability goes to the heart of the vision for the party, since it goes to the root of questions about pragmatism, risk aversion, settling for half or quarter loaves or ending up with nothing. After several of these encounters - after last night and tonight - these basic questions, dividing points seem very clear and well illustrated.

Thursday, February 4, 2016

Oregon Refuge Occupiers Facing 6 Years in Federal Prison

Refuge Banner Image
The Malheur National Wildlife Refuge - Oregon
is maintained by the U.S. Fish and Wildlife Service 
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Ammon Bundy - crackpot patriot

Ammon Bundy and other leaders of the occupation of the Malheur National Wildlife Refuge occupation have been indicted, along with the holdouts still in the Oregon federal Refuge.   The armed men spouting crackpot constitutional law have conspired to obstruct people who want to go to the visitor center on bird watching or nature hike expeditions.   The government could well decide to issue a superseding indictment under the Ku Klux Klan Act, 18 USC 241.  But for now the Department of Justice is keeping it simple.  The indictment is limited to 18 U.S. Code § 372 - Conspiracy to impede or injure officer:

Current through Pub. L. 114-38. (See Public Laws for the current Congress.)
prev | next
If two or more persons in any State, Territory, Possession, or District conspire to prevent, by force, intimidation, or threat, any person from accepting or holding any office, trust, or place of confidence under the United States, or from discharging any duties thereof, or to induce by like means any officer of the United States to leave the place, where his duties as an officer are required to be performed, or to injure him in his person or property on account of his lawful discharge of the duties of his office, or while engaged in the lawful discharge thereof, or to injure his property so as to molest, interrupt, hinder, or impede him in the discharge of his official duties, each of such persons shall be fined under this title or imprisoned not more than six years, or both.

Wednesday, February 3, 2016

D.C. District Court Proposes New Rules on Prosecutors Disclosure Obligations

The United States District Court for the District of Columbia has released a proposed rule which would codify the government's discovery obligation set out by the Supreme Court. Most significantly, it imposes specific timelines on prosecutors and defines for the first time what constitutes "favorable information" under the U.S. Supreme Court's landmark 1963 decision in Brady v. Maryland the Court there declared that prosecutors have a constitutional obligation to provide the defense with "evidence favorable to an accused . . . where the evidence is material either to guilt or to punishment." The failure by a prosecutor to disclose appropriate information is often referred to as a "Brady violation."
In recent years the importance of the rule has been highlighted by the Innocence Project, and the recognition by some - such as former Louisiana Supreme Court Chief Justice Pascal F. Calogero, Jr., who declared that systemic difficulties - including lack of guidance - help to explain the "Brady violations" that underlie some wrongful convictions. - gwc

Tuesday, February 2, 2016

Sarah Palin’s English - The New York Times

Sarah Palin introducing Donald Trump at a campaign event Monday in Iowa.
Quite the rhetorician, Sarah Palin.  It reminds Anna North of ancient Roman trash talk.  One might say to her and to Trump what Cicero said to the conspirator Lucius Catilina in the Senate of the ancient Roman Republic:

"When, O Catiline, do you mean to cease abusing our patience? How long is that madness of yours still to mock us? When is there to be an end of that unbridled audacity of yours, swaggering about as it does now?"
 Marcus Tullius Cicero - First Oration against Lucius Catilina

Sarah Palin’s English - The New York Times
by Anna North

Sarah Palin has been mocked a lot for the way she talks, especially in her strange and rambling endorsement speech for Donald Trump. But her speeches on the campaign trail aren’t simple; they are actually incredibly complicated.
Her unusual style was on display at a Trump rally on Monday afternoon in Cedar Rapids, Iowa. “When both parties, the machines involved, when both of them hate you,” she said at one point, “then you know America loves you and we do love he who will be the next president of the United States of America, Donald J. Trump!”
Let’s break that last part down: “We” love not just Donald Trump, or even just Donald J. Trump, but “he who will be the next president of the United States of America.”
Mrs. Palin relies heavily on this particular kind of dependent clause. “He is one who would know to negotiate,” she said of Donald Trump in her speech endorsing him on Jan. 19. Later in that speech, she spoke of “our own G.O.P. machine, the establishment, they who would assemble the political landscape.”
Mrs. Palin is also a big fan of the participial phrase. “And that blank check too,” she said on Monday, “making no sense because it’s led us to things, oh gosh, to pay the bills then, we have had to uh, print money out of thin air.”
keep reading

Mayeux on "What Gideon Did" - forthcoming - Columbia Law Review

Legal History Blog: Mayeux on "What Gideon Did"
Sara Mayeux, Sharswood Fellow, University of Pennsylvania Law School, has posted WhatGideon Did, which is to appear in the Columbia Law Review 116 (2016):



Clarence Earl Gideon (DOJ)
Many accounts ofGideon v. Wainwright’s legacy focus on whatGideon did not do — its doctrinal and practical limits. For constitutional theorists, Gideonimposed a preexisting national consensus upon a few “outlier” states, and therefore did not represent a dramatic doctrinal shift. For criminal procedure scholars, advocates, and journalists, Gideon has failed, in practice, to guarantee meaningful legal help for poor people charged with crimes.

Drawing on original historical research, this Article instead chronicles what Gideondid — the doctrinal and institutional changes it inspired between 1963 and the early 1970s. Gideon shifted the legal profession’s policy consensus on indigent defense away from a charity model toward a public model. By 1973, this new consensus had transformed criminal practice nationwide through the establishment of hundreds of public defender offices and the expansion of lawyers’ presence in low-level criminal proceedings. This Article describes these changes primarily through the example of Massachusetts, while contextualizing that example with national comparisons.....

Oyez - Supreme Court Archive May Shut Down // National Law Journal

The Oyez Project - a Supreme Court Archive which features oral arguments before the United States Supreme Court - is a civics resource relied on by many teachers - including me.  Political scientist Jerry Goldman was inspired by my grad school classmate, lawyer/historian Peter Irons.  The star protege of left wing historian Howard Zinn, Irons, a draft resister as a young man, secretly copied the tapes, infuriating Chief Justice William Rehnquist.  Irons' edited Supreme Court transcripts and audio were published as the popular May It Please the Court, used in many classrooms, and a popular gift for lawyer moms and dads, and law student children. 
One would hope that Google or the like would want to fund the project in the future. - gwc

Its Creator Retiring, Oyez Project Faces Uncertain Future
by Tony Mauro //National Law Journal
February 1, 2016

The Oyez Project, a widely used resource for the audio of U.S. Supreme Court oral arguments and other information about the court, is facing an uncertain future.
Launched in 1993, the site boasts nearly 9 million visits a years, ranging from high school students to Supreme Court practitioners prepping for appearances at the lectern.
With founder Jerry Goldman planning to retire in May, and its arrangement with Chicago-Kent College of Law set to expire, Goldman said he worries the site may wither away or shut down later this year.
“The human side of the institution, the sense of the men and women who sit on the bench—their voices would be silenced,” said Goldman, 70.
The site houses the audio from nearly every high court case argued since the court began taping arguments in October 1955—a handful have been lost or the sound quality was terrible—as well as transcripts that are searchable and synchronized with the audio. The audio is supplied by the National Archives, where the court lodges the tapes after the end of each term.
Goldman is looking for nonprofit institutions or a consortium of organizations and universities to keep the site running, at an annual cost of about $300,000. He also said he sees opportunities for expansion, to provide the public with audio and information about state supreme courts and federal appeals courts.
Jerry Goldman.
Jerry Goldman.
Even if the U.S. Supreme Court announced tomorrow that it would start streaming its arguments online, Oyez would still be necessary, Goldman asserts. That is because it contains landmark arguments ranging from Roe v. Wade to Miranda v. Arizona, and adds explanatory material to each argument.
“The mere fact that you have audio doesn’t mean much if you can’t wrap information around it,” Goldman said. The page for most cases also includes the audio of the decision in the case being announced. Other features include panoramic views of several parts of the court building, and short biographies of every justice.
“If you want to find the time that Justice Scalia used the word broccoli, you can do that in a few seconds,” Goldman said. (In March 2012, Scalia compared the individual mandate in the Affordable Care Act to a government order for consumers to buy broccoli.)
Harold Krent, dean of Chicago-Kent, which hosted Oyez for the past five years, called the site a “unique resource” that “humanizes the Supreme Court.”
Deferring to Goldman about the future of the site, Krent said he hopes his school can remain involved in helping to keep Oyez alive.
One problem, Krent said—and Goldman agreed—is the difficulty of placing a monetary value on the site. They both believe Oyez should be freely available to the public, without a pay wall or advertising. The high court itself has posted oral argument audio going back to 2010, with transcripts on a separate page going back to 2000.
Goldman, who taught political science at Northwestern University before moving with Oyez to Chicago-Kent in 2011, got the idea for posting Supreme Court audio from the controversy over another political scientist, Peter Irons. Irons used Supreme Court audio obtained from the National Archives for a book. Chief Justice William Rehnquist threatened to sue Irons, but eventually backed off, allowing wide use of the tapes.
Goldman said the audio project opened up a new world for Supreme Court scholars and aficionados. Some of the tapes contained quiet chatter among justices who did not turn off their microphones. On other tapes, the sounds of angry protesters can be heard.

Read more: http://www.nationallawjournal.com/id=1202748476368/Future-Unclear-for-Oyez-Source-for-Supreme-Court-Audio-History#ixzz3z1BZxOom

Due Process for Central American Refugees? //ImmigrationProf Blog

ImmigrationProf Blog

Philip E. Wolgin for the Center for American Progress has a new column that considers major due process failings in the process surrounding the removal process of asylum-seekers arrested in recent the raids of Central American mothers and children and offeres a look at what adequate due process would look like:
First and foremost, everyone seeking protection should be given information about their rights as asylum seekers as soon as possible after being put in removal proceedings. The Vera Institute of Justice’s Legal Orientation Program, which provides people with information about their rights and the deportation process and refers immigrants particularly in need of counsel to pro bono attorneys, is one good model. The government should make very effort to ensure that each asylum seeker is matched with a pro bono attorney or is represented by a competent nongovernmental organization, and no child should face court proceedings without a lawyer.
Second, no person who seeks asylum in the United States should be rushed to deportation. All those picked up in a raid, for example, should have their cases reviewed by a competent attorney to ensure that they have truly exhausted all of their legal options for protection.
Finally, Congress must provide adequate resources to allow immigration courts the time to fully consider each and every asylum case. On average, it takes 660 days for a case to be heard in the immigration courts. The average immigration judge handles more than 1,500 cases per year—nearly four times more than a federal District Court judge. Given the crushing caseload and potentially fatal consequences of deportation, National Association of Immigration Judges President Dana Leigh Marks likened immigration hearings to “death penalty cases heard in traffic court settings.”

Monday, February 1, 2016

Iowa Caucuses Give GOP a Chance to Right Ship

Cruz 27, Trump 24, Rubio 23
My take:
Rubio's surge brings the end of the clown show near. The Governors will soon be gone, and we'll be left with Cruz who is so dislikable that he's unelectable and the loser Trump who -though he conceded "manfully" - will be graceless in defeat, and is unacceptable even to Fox News. So the GOP moneybags will now declare Rubio the last hope and he'll become the nominee.
Sanders strong showing will make a horse race of it for a while. His supporters will be energized and hopeful. I hope they'll turn out for Hillary when she faces off against Rubio in November. He'll be formidable.  He was poor, played football, went to law school, is goodlooking, married a cheerleader and talks the GOP talk in a disciplined way. - GWC

Former diocesan leader alleges Muller thwarted investigation of choir boy abuse - National Catholic Reporter

Former diocesan leader alleges Muller thwarted investigation of choir boy abuse - National Catholic Reporter
by 
Christa Pongratz-Lippitt

A former chairman of the lay diocesan council in Regensburg, Germany, has alleged that Vatican Cardinal Gerhard Müller "systematically" prevented the investigation of abuse in Germany's famous "Regensburger Domspatzen" boys' choir during his time as bishop of Regensburg.

The allegations against Müller, who is now the prefect of the Congregation for the Doctrine of the Faith, coincided with 60 further alleged abuse victims coming forward since Ulrich Weber, an independent lawyer, published an interim report in January which showed that three times as many boys had been abused between 1953 and 1992 than reported by the diocese.

"My impartiality as an independent lawyer is the reason why more alleged victims now want to consult me. They feel that I will listen to them," Weber, who was commissioned by the Regensburg diocese to further investigate the abuse at the choir boys school, told domradio.de.

In a long interview in the German weekly Die Zeit, former chairman Fritz Wallner described how Müller, who was bishop of Regensburg from 2002-2012, and his vicar-general, Fr. Michael Fuchs, "systematically" prevented abuse cases from being investigated and calls for Fuchs, who is still vicar-general of Regensburg, to step down.

In 2005, Müller disbanded the lay diocesan council, Wallner said, "as he wanted to hold the reins firmly in his own hands and that proved fatal for inner-church investigation of abuse."

The False Lure of the Sanders Single-Payer Plan

The False Lure of the Sanders Single-Payer Plan

by Paul Starr (Princeton University)

Wouldn’t it be great if we could just go to the doctor and not pay any bills? After all, isn’t that what they do in other countries, and don’t those countries have lower health-care costs than the United States does? And aren’t private insurance companies the only reason we don’t have that kind of system?

This is the appeal of the Bernie Sanders single-payer health plan. Free health care, with none of the frustrating paperwork of today’s insurance, and with taxes that cost less than insurance premiums—what could be better than that? Of course, the single payer in the Sanders plan is the federal government, which implies concentrating payment and therefore power over health care in Washington. But, at least in this area, many Democrats don’t seem worried about that prospect.

Sanders doesn’t just call for incremental steps toward single-payer. He’s proposing to shift all of health care to federal taxes in one fell swoop. That’s one reason for the enormous, sudden increase in taxes the plan would require—$1.38 trillion on top of existing federal spending, according to Sanders’ own estimates. As Harold Pollack has pointed out, that $1.38 trillion is just about equal to total federal income and estate tax collections in 2014—in other words, the plan would require doubling that revenue. Sanders insists that he’s shown how he would pay for it through a 6.2 increase in payroll taxes (which he calls an “income-based premium paid by employers,” though the cost will fall on employees); a 2.2 percent increase in income taxes on everyone; higher estate taxes; taxing capital gains and interest as ordinary income; limiting tax deductions for the rich; and higher income-tax rates on the upper brackets (which, combined with other increased taxes he’s also calling for, would bring the top marginal federal rate to 77 percent, as Dylan Matthews shows at Vox).

But Sanders’s estimate of the needed increase in taxation, despite its whopping size, is too low. The plan would actually cost another $1.1 trillion a year, according to an analysis by Kenneth Thorpe, a health-care economist at Emory University, who has long experience working with single-payer proponents. In 2006, the Vermont legislature hired Thorpe to cost out a single-payer proposal, and in 2014 progressive legislators in Vermont hired him again. So this is not an estimate from an economist generally opposed to universal health care or to single-payer. Thorpe’s estimates indicate that workers would have to pay an additional 20 percent of compensation to pay for Sanders’s plan.

At Vox, Matthews has probed both Thorpe and the Sanders campaign on some of the specific areas where their numbers diverge. Here’s one stunning detail: When the Sanders campaign released its plan, it estimated $324 billion in annual savings on prescription drugs—until Thorpe noted that the United States spent only $305 billion for that purpose in 2014. (If Trump can expect Mexico to pay for a wall on the border, I suppose Sanders can expect drug companies to pay consumers instead of the other way around.) When Matthews pointed out that it was impossible to save $324 billion out of $305 billion, the Sanders camp cut their savings estimate to $241 billion, while conveniently increasing other projected savings to make up the difference. But $241 billion in drug savings are still implausible, and as the entire episode indicates, the Sanders campaign is simply pulling numbers out of the air.

Sunday, January 31, 2016

How GM ignition-switch plaintiffs' lawyer botched his big case


Six bellwether trials were scheduled in the GM ignition key defect cases.  The first was a catastrophe for the plaintiffs. Another plaintiff's lawyer has moved to remove the lead attorney from the cases. - gwc
How GM ignition-switch plaintiffs' lawyer botched his big case
NEW YORK/DETROIT (Bloomberg) -- When Robert Kleven switched on the news for his drive to work two weeks ago, he had no idea he was about to sink a high-profile lawsuit against General Motors and embarrass one of the best-known plaintiffs’ lawyers in the U.S.
The news anchor described a long-awaited trial starting in U.S. District Court in Manhattan that day, the first over a deadly defect in millions of GM ignition switches. The plaintiff was a 49-year-old postman named Robert Scheuer. Kleven, a real estate agent in Tulsa, Okla., knew that name. Two years earlier, he said in an interview, Scheuer had pulled a fast one on him.
Scheuer had altered a government check stub to make it look like he had hundreds of thousands of dollars in the bank, Kleven said. On the strength of that stub, Kleven had let Scheuer and his wife, Lisa, move in to a new house in suburban Tulsa before they had paid for it. He had to evict them and their two daughters, he said, when he learned that Robert Scheuer had added a “441” to the $430.72 stub to turn it into a deposit of $441,430.72.
So Kleven called GM.
“I didn’t want them getting away with another scam,” the 43-year-old agent with Concept Builders Inc. said.
The couple went on to testify under oath that injuries Robert sustained in a May 2014 wreck in their Saturn Ion had led to the eviction from their “dream house.” GM accused them of perjury. The Scheuers dropped their lawsuit less than halfway through the trial, without getting a penny from GM.