Thursday, November 26, 2015

Representing the Child and her Guardian: Conflict of Interest? | Legal Ethics in Motion

Representing the Child and her Guardian: Conflict of Interest? | Legal Ethics in Motion


On August 19, 2015, the New York State Bar Association issued a formal ethics opinion, which advises that an attorney who represents a child in Federal Immigration Court may also be competent to simultaneously represent the proposed guardian of the child in State Family Court proceedings. The opinion conducts a traditional conflicts of interest analysis to conclude that the representation is permissible as long as both parties provide informed written consent and the attorney reasonably believes he or she can competently and diligently represent both clients at the same time. While the opinion employs a traditional analysis, it also notes the unique issues that may arise when representing a minor in an immigration proceeding.

The opinion addresses conflicts of interest that may occur when a lawyer represents a child who is attempting to qualify for a deportation exception called the “Special Immigrant Juvenile Status” (SIJS). SIJS permits minors who have been abused, neglected, or abandoned by their parents in their country of origin and who are declared dependent on a juvenile court to obtain permanent legal status in the United States.

The GOP and Israel’s Right-wing Present: The Golden Age of Bigotry - Opinion - Israel News - Haaretz Israeli News Source

The GOP and Israel’s Right-wing Present: The Golden Age of Bigotry - Opinion - Israel News - Haaretz Israeli News Source
by Asher Schechter
It’s been getting fashionable to complain about the supposedly overwhelming power of political correctness. “PC tyranny”, moan the self-appointed protectors of free speech, has become ubiquitous. It has taken over college campuses, it permeates Western societies, it forces public figures and even ordinary people to censor themselves. These arguments may be followed by mock-whiny portrayals of stereotypical lily-livered liberals using terms like “hate speech” and “trigger words.”
It turns out, however, that the PC “thought police” isn't as powerful as some think. Otherwise it’s hard to explain the positively bacchanalian global celebration of bigotry we have seen in recent weeks, so blatantly racist that it could make even noted bigot Woodrow Wilson - the latest mark of PC “bullies” - feel sick.
A brief recap for people living under rocks:
read more:

Tuesday, November 24, 2015

Definitely debunking of trump

A Definitive Debunking of Donald Trump’s 9/11 Claims

Obamacare: A month of 'yes buts' | xpostfactoid

A month of 'yes buts' | xpostfactoid
by Andrew Sprung
Collectively, these posts are far from suggesting that the ACA is an ideal or complete response to the country's problems with healthcare access and cost. It's provided vital resources to perhaps 20 million lower income people. It's helped more than it's harmed, though it's harmed some, at least in the short term. It would be a decent foundation to build on if our political system were capable of building on it. That is, if Republicans would work to improve rather than sabotage it.  

1. Silver plans sold in the ACA marketplace offer skimpier coverage than most employer-sponsored plans. True for some, but not for two thirds of silver plans sold in the marketplace

2. Most people choose unwisely when selecting a health plan. Perhaps most buyers don't choose the plan that best suits their needs. But in the ACA marketplace, it seems that most buyers get the most important decision right

3. The ACA is not as egalitarian as it seems because it leaves many moderate-income buyers in the lurch. It's true that the program does not offer great options to many uninsured people with incomes over 250% of the Federal Poverty Level. But about two thirds of the uninsured are below that income level

4. The ACA leaves many people with deductibles so high they forgo needed care. True, but how many is many? 21% of marketplace customers are enrolled in bronze plans. Another 12% are in silver plans unenhanced by Cost Sharing Reduction subsidies. Not all of this third are dissatisfied; surveys (Kaiser, Commonwealth) generally peg enrollee satisfaction at about 75%. See more at: xpostfactoid

Moment of truth: Will the Republican Party Finally Repudiate Trump?

This is the moment of truth for the Republican Party.  Will the GOP heavies finally unite to decisively repudiate Donald Trump's racism?  Trump began his campaign with a blatantly racist  attack on Mexican immigrants; recently followed that with fraudulent statistics about Black homicides; and has sunk to a new low, claiming that  "thousands and thousands" of Muslims cheered in Jersey City as they watched the Trade Towers come down.  Rush Limbaugh continues to celebrate him.

Monday, November 23, 2015

The Perils of Originalism: Notes from Zivotofsky II Primus // Balkinization

Originalism is a popular but problematic approach to constitutional law.  To decide what equal protection means  who counts as a founder?  If James Madison, Alexander Hamilton, and John Jay count, why not Abraham Lincoln, Jonathan Bingham,  Thaddeus Stevens, and Ulysses S. Grant?  And what about our own experience - when gay people and women asserted rights uncontemplated at the founding or post Civil War re-founding? 
Prof. Richard Primus points out another problem: the originalist judges - -like Antonin Scalia, are incapable of determining the original meaning ot constitutional provisions. gwc

Primus: "If a Supreme Court opinion by a leading originalist in as prominent a case as Zivotofsky II can open with an entire paragraph of historical fantasy, what hope is there for the practice of originalism in the courts more broadly? We should not think “Look, sometimes it won’t work out, but most of the time it’s fine.” We should think “Originalist interpretations are liable to be shot through with misunderstanding even under what seem like favorable conditions.”

Balkinization: The Perils of Originalism: Notes from Zivotofsky II

by Richard Primus

I tend to agree with Justice Scalia that the majority’s position inZivotofsky is unsound. But the picture of eighteenth-century British government that Justice Scalia offered to frame the point is fully make-believe. By the time of the Hanoverian Kings, Parliament was thoroughly involved in foreign policy. Indeed, the Parliamentary settlement that installed the Hanovers in the first place came with statutory limits on what these new Monarchs would be allowed to do in the domain of foreign affairs. Through the eighteenth century, Parliamentary Ministries approved and disapproved alliances, granted and refused foreign subsidies, and as a practical matter authorized war and peace, to say nothing of building the overseas Empire. George II had little interest in that last little endeavor, being much more focused on Europe, but the Crown’s disinterest didn’t matter much, because the Ministers in Parliament were driving. George III, who was more interested in the Empire than his grandfather had been, would have been shocked to learn that he had a free hand in foreign affairs, given his constant experience of having to deal with Parliament. To say nothing of the consternation that news of the King’s exclusive foreign-affairs power would have caused throughout the capitals of Europe, as governments wondered why they were spending so much money retaining London agents for the purpose of lobbying Parliament to make favorable foreign-affairs policy.

Sunday, November 22, 2015

Shinbet raids Palestinian hospitals ~ Gideon Levy

Saturday, November 21, 2015

The Government's Petition for Certiorari in the DAPA case, United States v. Texas // Marty Lederman // Balkinization

 The Government's Petition for Certiorari in the DAPA case, United States v. Texas
by Marty Lederman

Here it is. More to follow soon, but these are the Questions Presented:
The Department of Homeland Security has long engaged in “a regular practice * * * known as ‘deferred action,’” in which the Secretary “exercis[es] [his] discretion” to forbear, “for humanitarian reasons or simply for [his] own convenience,” from removing particular aliens from the United States. Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 483-484 (1999). 

 On November 20, 2014, the Secretary issued a memorandum (Guidance) directing his subordinates to establish a process for considering deferred action for certain aliens who have lived in the United States for five years and either came here as children or already have children who are U.S. citizens or permanent residents.
The questions presented are:
1. Whether a State that voluntarily provides a subsidy to all aliens with deferred action has Article III standing and a justiciable cause of action under the Administrative Procedure Act (APA), 5 U.S.C. 500 et seq., to challenge the Guidance because it will lead to more aliens having deferred action.
2. Whether the Guidance is arbitrary and capricious or otherwise not in accordance with law.
3. Whether the Guidance was subject to the APA’s notice-and-comment procedures.

Thursday, November 19, 2015

Yale: The Power of Speech by David Cole | NYR Daily | The New York Review of Books

Yale: The Power of Speech by David Cole | NYR Daily | The New York Review of Books
by David Cole (Georgetown Law School)

***The First Amendment does not apply to a private institution like Yale University. But the same principles of free expression animate the doctrine of academic freedom. And while that entails requiring a certain level of decorum in classroom discussions, in order to make possible civil discourse among people who hold very different beliefs, it does not countenance punishing a professor (or student) for sending a public email questioning administration policy, much less for espousing bedrock principles of free expression. That Ms. Christakis was an associate master of the college, in charge of a residential community, does not diminish her right to express such opinions, and punishing the Christakises by removing them from their positions would send an unacceptable message of intolerance.

It is also a mistake to seek to suppress speech in the name of equality. Free speech and association are tools for the minority, whoever they are at a given moment—as the Yale students themselves have admirably demonstrated. The First Amendment empowers them to express their views, to dissent from majority policies, and to organize politically to advance their interests, just as, before them, it protected Martin Luther King Jr., Malcolm X, and other civil rights activists. The last thing a minority group should seek is the suppression of free expression.

Focusing on offensive speech also distracts from the more significant issues of racial injustice that persist more than sixty years after Brown v. Board of Education declared segregation unconstitutional—and that remain the Yale students’ principal concerns. African-Americans are disproportionately the victims of violence, both from the police and from their fellow citizens. They have far fewer economic and educational opportunities, and virtually the only American institutions in which they are over- rather than under-represented are prisons and the military. They have less wealth and shorter life expectancy than whites. And countless studies have shown that they are the victims of the implicit, often unconscious biases of doctors, employers, teachers, police, and probably everyone else they encounter. These are the pressing racial problems of our time—not Erika Christakis’s email. As media reactions illustrate there is a real risk that by going after the Christakises the students’ very legitimate complaints about much more serious problems will be drowned out.

Yale students are right to complain that their critics have failed to look beyond the viral video. If we want to understand the controversy at Yale, or at any of the many colleges that are experiencing similar protests, we must take seriously the deep and lasting wounds that continue to afflict the African-American community. We must demand, with the students, more diversity in faculty and staff, greater resources for minority students, and greater sensitivity to the challenges of building an integrated community of mutual respect. If President Salovey’s promises of significant change are realized, the students will have won—for the good of the whole university. But the struggle is not over. Responding to the challenges of diversity in a racially divided world is a full-time job. And continued activism will be needed to keep the administration to its promises. Demands to punish Erika Christakis because her genuine expression of opinion was deemed offensive undermine the cause. The students would do well to abandon that request and focus their and our attention on the more systemic problems of equal justice that continue to plague Yale, and the nation.

Wednesday, November 18, 2015

James B. Donovan, Before the “Bridge of Spies” | John Q. Barrett Jackson List:

19450808 RHJ JBD
Jackson List: James B. Donovan, Before the “Bridge of Spies” | John Q. Barrett
by John Q. Barrett (St. John's University School of Law)

The new film “Bridge of Spies” reports, in on-screen text, that it is “[i]nspired by true events.” Tom Hanks plays a character named James Donovan. He is a 1950s New York City lawyer. He represents insurance companies in policy coverage controversies—in one, the issue is whether his client, the insurer, is liable for the damages that an automobile driver caused by hitting five motorcyclists.

Then Donovan is recruited by the bar and bench in Brooklyn to represent Rudolf Abel, whom the United States has arrested and charged with being a Soviet spy.

What qualifies “insurance lawyer” Donovan to take on this high profile criminal defense job at the depths of the U.S.-U.S.S.R. Cold War? Well, as a colleague mentions to Donovan, “You distinguished yourself at Nuremberg.”

Donovan’s response is both an acknowledgement and, implicitly, a disclaimer that he is the right attorney to handle Abel’s defense: “I was on the prosecution team.”

* * *
Seventy years ago, the real James Britt Donovan indeed was a young but senior and very significant member of Justice Robert H. Jackson’s U.S. prosecution team before the International Military Tribunal (IMT) at Nuremberg. This post sets forth—including as background for your viewing of “Bridge of Spies,” which I recommend highly—some of Donovan’s life story, including his Nuremberg work.

James Donovan was born in New York City in 1916. His father was a medical doctor, and quite successful. Jim attended Fordham University, graduating in 1937. He attended Harvard Law School, graduating in 1940. He was hired by a New York City law firm, Townley, Updike and Carter. After passing the New York bar examination, he worked there for two years, primarily defending insurance companies and newspapers.

After the U.S. became involved in World War II, Jim Donovan took a leave from his law firm and moved to Washington. In 1942, he joined the U.S. Office of Scientific Research and Development (OSRD)—a research organization, under the direction of Vannevar Bush, that assisted the military—as its associate general counsel. He soon became its general counsel.

Houston Firm Loses Appeal Over Fen-Phen Referral Contract - Law360

Houston Firm Loses Appeal Over Fen-Phen Referral Contract - Law360
by Michelle Casady
Law360, Houston (November 17, 2015, 10:13 PM ET) -- Houston law firm Fleming & Associates LLP breached a contract for referral fees tied to a $339 million Fen-Phen settlement when it deducted litigation expenses from fees owed to another firm, a Texas appeals court said Tuesday, upholding a lower court ruling.

The Fourteenth Court of Appeals found that Fleming & Associates violated two contracts it entered into with Kirklin Law Firm PC in May and October of 2001 that stated Kirklin would retain a 40 percent referral fee for each client suing Wyeth over the FDA-recalled weight-loss drug Fen-Phen who was accepted by Fleming.

The appeals court rejected Fleming's arguments that the referral agreements shouldn't have been ruled ambiguous, finding the lower court was right to look at evidence outside the terms of the contract. The court also rejected Fleming's claims that the agreements created a joint venture, which would have entitled Fleming to shift some of the litigation expenses to Kirklin.

“Because the referral agreements are susceptible of more than one reasonable interpretation, we conclude that the trial court did not err when it held them ambiguous,” the panel wrote. “Further, because the referral agreements are ambiguous, the trial court did not abuse its discretion when it admitted parol evidence to prove the parties’ intent.”

In 2008, Fleming was slapped with a directed verdict on the fraud claims by the trial court and then a jury determined damages were owed Kirklin for breach of contract in the amount of $660,000. The jury also found that the agreement did not form a joint venture.

Fleming litigated 8,000 Fen-Phen cases for five years before reaching a $339 million settlement agreement with the drug's manufacturer. Kirklin had referred more than 500 clients and was given more than $2 million in fees, according to the opinion.

At trial, a former attorney for the Fleming firm, Jim Doyle, who signed the contracts with Kirklin on behalf of Fleming, said he believed he was fired over the disagreement, according to the opinion.

“Doyle testified that Fleming [terminated him] because Doyle would not go along with Fleming’s decision to charge litigation expenses to the referring firms,” according to the opinion.

During trial, a jury also awarded Kirklin attorneys' fees in the case of $150,000, but the trial judge struck that down, saying precedent doesn't allow for attorneys' fees to be awarded against a limited liability partnership.

Kirklin appealed that issue, saying the court erred in not holding Fleming individually liable and also that the Fleming firm hadn't kept up with Texas Revised Partnership Act requirements to maintain its LLP status.

“We disagree because the Kirklins failed to establish, as a matter of law, that the Fleming firm did not meet the statutory requirements to qualify as a limited liability partnership,” the panel wrote.

The parties did not immediately respond to a request for comment Tuesday.

The case was before Justices Martha Hill Jamison, Brett Busby and Marc Brown.

The appellant is represented by Erin Hilary Huber, David M. Gunn and John S. Adcock ofBeck Redden LLP and Adele O. Hedges of Adele Hedges Attorney At Law.

The appellee is represented by Paul S. Kirklin of the Kirklin Law Firm PC.

The case is George Fleming and Fleming & Associates LLP v. The Kirklin Law Firm PC, Charles Kirklin and Stephen Kirklin, case number 14-14-00202-CV in the Fourteenth Court of Appeals in Texas.

Tuesday, November 17, 2015

Chaohua Wang · ‘I’m a petitioner – open fire!’: Beijing locks up its lawyers · LRB 5 November 2015

China is a bundle of contradictions.  At the same time as the Communist Party opened a drive to improve and deepen the legal system, and expand the ranks and competence of lawyers and judges; it opened a campaign against lawyers it considered to be troublemakers.  In this essay Wang Chunhua tells the dramatic story of the Beijing Chengrui law firm who have suffered in the recent crackdown. - gwc
Chaohua Wang · ‘I’m a petitioner – open fire!’: Beijing locks up its lawyers · LRB 5 November 2015
by Chaohua Wang

The current leadership of the CCP under Xi Jinping is aware of the danger that the massive corruption of the party-state over the last three decades poses to its own legitimacy, and has launched an unprecedented campaign to clean up the higher echelons of power. A purge of senior officials has changed things in the top ranks of the party, but lower down, where corruption is most widespread and petitioners most common, the centre has nothing like the same degree of control. 
Late last year, the government once again began to speak of the need to ‘rule the country according to the law’, which allowed it to step up pressure on provincial and local authorities without undermining its own authority. Among measures taken to give force to the slogan, it redefined the procedure for registering cases. From 1 May this year, in order to ‘protect people’s rights to sue’, cases can no longer be rejected by the registration office except on technical grounds to do with documentation. As a result the number of cases allowed to go to trial jumped by almost a third: a million were successfully registered in the month of May, among them cases involving abuse of authority on the part of the bureaucracy soared by 221 per cent – a good indication of the number of such disputes suppressed in the past.

At the same time, there was official concern at the shortage of lawyers. The Ministry of Justice reported that in 2014, of eight million cases heard in the courts, only about a quarter of defendants had a lawyer present. It was suggested that the state help fund the establishment of law firms, and that legal volunteers be recruited from big cities. Two days before the reform of the registration office came into effect, the People’s Daily ran a prominent editorial under the headline ‘Let Lawyers Speak, Let Laws Enjoy Greater Dignity.’ It denounced the prevailing view that police, prosecutor and judge are courtroom comrades in arms battling against a common enemy – the accused and his lawyer. Six days later, Meng Jianzhu, the highest authority in China’s judicial system, gave a speech emphasising the importance of recognising the trial lawyer’s authority. The new measures were encouraging to lawyers committed to defending citizens’ rights – the same lawyers who a month later would be caught up in a police dragnet. How could one development have led to the other?

Diabetes Drug MDL Ruling Helps Branded Cos. In Label Fights - Law360

Diabetes Drug MDL Ruling Helps Branded Cos. In Label Fights - Law360
Law360, New York (November 16, 2015, 10:25 PM ET) -- A California federal court's decision for drugmakers in multidistrict litigation over their alleged failure to warn of their Type 2 diabetes drugs' potential to cause pancreas problems is among the first to clarify in detail that the U.S. Food and Drug Administration need not explicitly reject a heightened warning in order for branded-drug companies to beat labeling claims by injured patients.

U.S. District Judge Anthony J. Battaglia granted a summary judgment motion by defendants including Eli Lilly & Co. and Merck Sharp & Dohme Corp., finding the defendants had met the so-called "clear evidence" standard established by the U.S. Supreme Court's landmark 2009 ruling in Wyeth v. Levine.

Under that standard, branded-drug makers would have to show there is "clear evidence" that the FDA would not have approved a heightened safety warning in order to successfully argue that the plaintiffs' labeling claims are preempted by FDA oversight.

The high court's Levine decision established that branded-drug makers could be held liable to patients for potential labeling issues, finding that even though FDA oversees the pharmaceutical industry, manufacturers still have to maintain the "adequacy of product labeling," Judge Battaglia noted in his opinion.

In that case, the court found there was no clear evidence that the FDA would have rejected the kind of labeling plaintiffs were seeking for the drug at issue in that case. But Judge Battaglia observed that although the Levine court found such an evidence standard applies, it did not say what qualifies as "clear evidence." Plaintiffs have argued in recent years, including in the diabetes drug MDL, that this standard is only met if the agency directly rejects a proposal to strengthen warnings.

Attorneys say Judge Battaglia's opinion, as one of the rare opinions since Levine that discussed in detail the FDA's own consideration of the drug risks alleged by the plaintiffs, is likely to influence other courts considering the issue.

I think it's a very interesting, but misguided decision, because it couples the inaction of branded manufacturer with the inertia of the FDA to make a label change, to say that therefore a new label would be rejected," said Bill Curtis of the Curtis Law Group. "Even though there was no request [for a label change] by the manufacturer."

The case is In Re: Incretin Mimetics Products Liability Litigation, case number 3:13-md-02452, in the U.S. District Court for the Southern District of California.

Monday, November 16, 2015

China’s First Environmental Public Interest Litigation: Green NGOs Win |

China’s First Environmental Public Interest Litigation: Green NGOs Win |
by Yanmei Lin //Vermont Law School

On Thursday, October 29, 2015,the Nanping Intermediate People’s Court of Fujian Provinceissued a judgment in favor of the two environmental NGOs plaintiffs, Friends of Nature (FON)and Fujian Green Home on China’s first environmental public interest case. The case, which concerned resource destruction and environmental restoration related to an illegal mining site was heard under China’ new Environmental Protection Law, which took effect on January 1, 2015.

The case began on December 4, 2014 that two Green NGOs filed a complaint in the Nanping Court against four individuals, seeking cleanup and restoration of an illegal mining site and the Court accepted the case on January 1, 2015. These four defendants were charged with involving with destruction of 1.89 hectares of forestry land by carrying out mining activities.

The Court held two lengthy hearings, one in May and one in June this year before it reached the verdict. In ruling for FON and Fujian Green Home, the Nanping Court held that 
1) the defendants shall restore the damage site to a place that has wooded land function in accordance with the Technical Guidelines for Afforestation (DB35/T84-2005) and local forestry bureau’s instruction within three months, including cleaning up the waste and replanting the trees, and maintain and protect the site for three years; 
2) Should the defendants failed to be in compliance with the first order within the timeframe, the defendants shall pay 1.1 million yuan (approximately 0.18 million dollars) to an special account designated by the Court that the fund will be used to restore the damaged site; 
3) the defendants shall pay 1.27 million yuan (approximately 0.2 million dollars) as ecological interim losses to a special fund, which will be used for restoration projects on site or off sites in surrounding areas; 
4) the defendants shall pay FON’s attorney fees of 96,200 yuan (approximately 15,516 dollars), expert fee of 6,000 yuan (approximately 967.7 dollars) and reasonable litigation related cost of 31,308 yuan (approximately 5,505 dollars); and pay Fujian Green Home’ attorney fee of 25,261 yuan (approximately 4,074 dollars) and reasonable litigation related cost of 7,393 yuan (approximately 1,192 dollars).

Sunday, November 15, 2015

Chalabi's Bay of Goats: The Iran Connection // ex Publius

expublius: Chalabi's Bay of Goats: The Iran Connection
by Russ Hoyle

U.S. Gen. Anthony Zinni declared before 9/11 that a flashy Iraqi exile named Ahmed Chalabi was "going to lead us to a Bay of Goats" if Washington bought his plans to depose Saddam Hussein. The outcome, the commander of U.S. forces in the region warned, would be a fiasco that would make the U.S. adventure at the Bay of Pigs look like child's play.

If anything, the reality was far worse. The notorious Shi'ite con man, who died last week in Baghdad of a heart attack, was admired before the Iraq war by a handful of secretive U.S. national security types and exiled neoconservative Republicans in Washington. His stature grew considerably after President George W. Bush's election and the 2003 U.S. invasion. The media postmortems of Chalabi and his legacy have rightly focussed on his critical role in funneling wholesale fictions about Saddam's weapons of mass destruction to gullible -- or manipulative -- U.S. policymakers, who for years financed and fed on his disinformation-spewing Iraqi National Congress.

When later questioned about the non-existent WMD, Chalabi quipped, "We were heroes in error."

False intelligence provided by Chalabi's network was instrumental, if not decisive, in enabling the U.S. decision to go to war. Chalabi couldn't have achieved his aims without powerful backers in Washington. But I'm left wishing more attention had been paid to his connections in Tehran. Even for those familiar with Chalabi's past and his methods, it is striking how much is not known about his record as a member of the Iraqi Parliament and official in the government of Prime Minister Nouri al-Maliki. What little we do know, however, is consistent with reports of his pre-war relationship to the revolutionary government in Iran.
Keep reading

Ruth Bader Ginsburg and Gloria Steinem on the Unending Fight for Women’s Rights - The New York Times

 Ruth Bader Ginsburg and Gloria Steinem on the Unending Fight for Women’s Rights - The New York Times

Saturday, November 14, 2015

Secret ‘Catacombs Pact’ emerges after 50 years, and Francis gives it new life | National Catholic Reporter

The Catacombs pact was a letter signed by priests during Vatican II at a gathering in the catacombs were thousands of Christians were buried.  They pledged to live as and for the poor.  John XXIII's conservative successors disdained such leftish sentiment.  But now we have a Pope who embraces it. - gwc
Secret ‘Catacombs Pact’ emerges after 50 years, and Francis gives it new life | National Catholic Reporter
by David Gibson

On the evening of Nov. 16, 1965, quietly alerted to the event by word-of-mouth, some 40 Roman Catholic bishops made their way to celebrate Mass in an ancient, underground basilica in the Catacombs of Domitilla on the outskirts of the Eternal City.

Both the place, and the timing, of the liturgy had a profound resonance: The church marked the spot where tradition said two Roman soldiers were executed for converting to Christianity. And beneath the feet of the bishops, and extending through more than 10 miles of tunnels, were the tombs of more than 100,000 Christians from the earliest centuries of the church.

In addition, the Mass was celebrated shortly before the end of the Second Vatican Council, the historic gathering of all the world’s bishops that over three years set the church on the path of reform and an unprecedented engagement with the modern world — launching dialogue with other Christians and other religions, endorsing religious freedom and moving the Mass from Latin to the vernacular, among other things.

But another concern among many of the 2,200 churchmen at Vatican II was to truly make Catholicism a “church of the poor,” as Pope John XXIII put it shortly before convening the council. The bishops who gathered for Mass at the catacombs that November evening were devoted to seeing that commitment become a reality.

So as the liturgy concluded in the dim light of the vaulted fourth-century chamber, each of the prelates came up to the altar and affixed his name to a brief but passionate manifesto that pledged them all to “try to live according to the ordinary manner of our people in all that concerns housing, food, means of transport, and related matters.”

 The signatories vowed to renounce personal possessions, fancy vestments and “names and titles that express prominence and power,” and they said they would make advocating for the poor and powerless the focus of their ministry.

In all this, they said, “we will seek collaborators in ministry so that we can be animators according to the Spirit rather than dominators according to the world; we will try to make ourselves as humanly present and welcoming as possible; and we will show ourselves to be open to all, no matter what their beliefs.”

The document would become known as the Pact of the Catacombs, and the signers hoped it would mark a turning point in church history.

Instead, the Pact of the Catacombs disappeared, for all intents and purposes.

It is barely mentioned the extensive histories of Vatican II, and while copies of the text are in circulation, no one knows what happened to the original document. In addition, the exact number and names of the original signers is in dispute, though it is believed that only one still survives: Luigi Bettazzi, nearly 92 years old now, bishop emeritus of the Italian diocese of Ivrea.

Friday, November 13, 2015

Applying Originalism - UCLA Law Review

Applying Originalism - UCLA Law Review
by Wyatt G. Sassman

On November 17th, 2014, Harvard Law School presented the inaugural Justice Antonin Scalia Lecture. As Dean Martha Minow of Harvard Law School, explained, an anonymous donor endowed the lecture “to promote and advance understanding of the founding principles and core doctrines of the United States Constitution.”1 Judge Frank H. Easterbrook presented the first lecture, titled “Interpreting the Unwritten Constitution.”2 A close friend and ideological colleague of Justice Scalia, Judge Easterbrook presented a concise yet comprehensive explanation of originalism as a theory of judicial authority. This is a review of that lecture.

Reviewing this lecture presents an opportunity to capture originalism in the middle of an important change. Most modern originalists accept that the meaning of text can change over time. As a result, many are abandoning strict reliance on text and, in exchange, some are seeking structural measures of original intent. Easterbrook’s lecture is an example of this shift. It offers a way to make substantive constitutional decisions based on the Framers’ original view of the separation of powers as inferred from the text, rather than based on the original meaning of any specific constitutional provision.

Perhaps because it is exemplary, his approach presents problems, both new and old. I identify two in particular. First, Easterbrook’s argument still does not account for constitutionalized individual rights, or how a judge applying his approach should handle precedent enshrining those individual rights. This has been a persistent problem for originalists of all stripes. Second, and more fundamentally, Easterbrook’s approach doesn’t appear to be originalism anymore. As originalists depart from text, they depart altogether from original intent. Easterbrook’s application of his ideas to three unwritten constitutional doctrines—the intergovernmental tax immunity, anticommandeering, and sovereign immunity doctrines—drives this point home, illustrating that the Framer’s original intent about the content of any doctrine, even doctrines that existed in the Framer’s times, matters very little to the judicially active, majoritarian approach offered by Easterbrook in this lecture.

But maybe originalism will benefit from this change of character. Easterbrook’s approach, by departing from text and original intent, justifies its substantive doctrinal goals with reasoning similar to other modern approaches to constitutional interpretation—reasoning about whether something is a good or desirable way to govern given the modern expediencies of American society. In contrast to the no compromises approach originalists have taken for many years, Easterbrook’s approach signals originalism’s move toward a more forward looking, participatory role in ongoing debates about the Constitution, the courts, and modern republican democracy.

Supreme Court Takes On Racial Discrimination In Jury Selection : NPR

Supreme Court Takes On Racial Discrimination In Jury Selection : NPR
by Nina Totenberg
Listen to the story
The U.S. Supreme Court wrestles Monday with a problem that has long plagued the criminal justice system: race discrimination in the selection of jurors.
"Numerous studies demonstrate that prosecutors use peremptory strikes to remove black jurors at significantly higher rates than white jurors."
Those are not the words of the defense in the case. They come from a group of highly regarded prosecutors, Republican and Democrat, conservative and liberal, who have filed a friend-of-the-court brief siding with Timothy Foster, who was convicted and sentenced to death in the killing of an elderly white woman in Georgia.

It has been nearly 30 years since the Supreme Court sought to toughen the rules against racial discrimination in jury selection. But Foster's lawyers argue that black jurors were systematically excluded from the jury at his trial in 1987, while judges at all levels looked the other way for nearly three decades thereafter.

Understanding the 5th Circuit Rejection of Deferred Immigration Program //ImmigrationProf Blog

Not even the amicus curiae brief of 109 immigration law professors could stop the steamroller. - the Texas attack onthe Obama admiinistration's deferred action program. 

 Explaining U.S. v. Texas - ImmigrationProf Blog
by Shobha Wadia
On November 9, 2015, a majority panel at the Fifth Circuit Court of Appeals ruled against the Administration, and went even further than the lower district court by concluding that even if the Deferred Action for Parents of Americans and Legal Residents (DAPA) program followed the procedural requirements, the DAPA memorandum is nonetheless contrary to the Immigration and Nationality Act and substantively violates the Administrative Procedure Act. The following day, the Department of Justice issued a statement confirming that it would appeal the decision to the U.S. Supreme Court. The Fifth Circuit’s decision was predictable in light of the panel composition (two conservative judges who previously ruled against the Administration when it filed an appeal to an emergency stay with the Fifth Circuit on the same case). Of note, Judge Carolyn King issued a sharp dissent that ran as many pages as the majority opinion and agreed with the legal foundation advanced by the Department of Justice, more than 130 law professors, and scores local government officials (including the Mayor of my own hometown State College).  Possibly, the case will be heard by the Supreme Court in summer 2016, and pave the way for the Department of Homeland Security to implement the deferred action programs now on hold before the presidential election.
While there is a possibility for the Supreme Court to hear the case in Texas, the political moves and legal mistakesuttered throughout this litigation cannot be ignored. Oral arguments on the merits of the injunction were held on July 10, 2015 and heard by a three-judge panel. In my commentary to this hearing, I expressed frustration about the flaws made by the plaintiffs during the oral arguments as it related to the definition of “deferred action” and the myth that the DAPA created new law. To the contrary, and as eloquently phrased by Judge King in her dissenting opinion, “Deferred action decisions, such as those contemplated in the DAPA Memorandum, are quintessential exercises of prosecutorial discretion.”   
Left untouched despite the litigation was the Administration’s priorities memo entitled “Policies for Apprehen­sion, Detention, and Removal of Undocumented Immigrants.” The priorities memo is operational today, and in six pages attempts to spell out the Administration’s priorities for removal and a refined prosecutorial discretion policy. This same memo lists more than one dozen types of prosecutorial discretion in immigration law. The implementation of this memo coupled with a four-month delay by the Fifth Circuit in issuing an opinion has inflicted great concern and fear to individuals and families who had placed their faith in the president’s deferred action programs. Judge King expressed concern for this delay in her dissent when she remarked: “I have a firm and definite conviction that a mistake has been made. That mistake has been exacerbated by the extended delay that has occurred in deciding this “expedited” appeal. There is no justification for that delay.” Whether or not the delay by the Fifth Circuit was innocent or political, the human impact of this hiatus is real.
As we approach the one-year anniversary of President Obama’s announcement on executive actions on immigration, I hope that the longstanding legal foundation for prosecutorial discretion in immigration law; the common sense need for the Administration to target its limited resources towards true enforcement priorities; and the compassion that has laced the deferred action program for decades prevail.
Shoba Sivaprasad Wadhia, the Samuel Weiss Faculty Scholar and Clinical Professor of Law, Penn State Law; author ofBeyond Deportation: The Role of Prosecutorial Discretion in Immigration Cases (NYU Press 2015).  This contribution is cross-posted on the ACS blog.

Judicial Energy and the Supreme Court - The New York Times

Judicial Energy and the Supreme Court - The New York Times
by Linda Greenhouse

Terry Eastland, a Reagan-era conservative activist who now edits The Weekly Standard, wrote a book back in 1992 that he called “Energy in the Executive: The Case for the Strong Presidency.” He took to task both President Ronald Reagan, for whom he had worked in the Justice Department, and the first President Bush for having failed to use all possible levers of presidential power to advance the conservative agenda.
 “The mere possibility of negative reaction from Congress or elsewhere should not deter the energetic executive from administrative governance,” Mr. Eastland wrote. “The president is elected to govern, and mere maintenance of the status quo is not to be confused with energetic government.” The book’s purpose, he explained, was “to recover and restate the enduring case for energy in the executive, which is to say: the strong presidency.”

What a difference it makes when Barack Obama is in the White House.

I reached for Mr. Eastland’s book on Monday night, even before I finished reading the decision from the United States Court of Appeals for the Fifth Circuit that refused to lift a nationwide injunction against the Obama administration’s effort to shield millions of undocumented-immigrant parents of American-citizen children from deportation.

The 2-to-1 decision in State of Texas v. United States held that the Deferred Action for Parents of Americans program would likely be found after a trial to have exceeded the president’s authority under the Immigration and Nationality Act. The program could not be allowed to take effect in the meantime, the majority said, because it would subject Texas and the 25 other states that sued to block it to “a substantial threat of irreparable injury.”

I wonder whether Mr. Eastland, who these days criticizes President Obama’s “unilateral governance” and “Congress-circumventing actions,” is planning a new book praising “energy in the judiciary.” Someone on his side of the street certainly should write one. The majority opinion is as cynical an exercise of judicial authority as I can remember — and no, I haven’t forgotten Bush v. Gore. The dissenting judge, Carolyn Dineen King, nailed it when she said the case “essentially boils down to a policy dispute” and that “the policy decisions at issue in this case are best resolved not by judicial fiat, but via the political process.” Chief Justice John G. Roberts Jr. could hardly have said it better himself. In fact, he did say essentially the same thing, in his dissenting opinion last June in the same-sex marriage case.

Thursday, November 12, 2015

At University of Missouri, Black Students See a Campus Riven by Race - The New York Times

At University of Missouri, Black Students See a Campus Riven by Race - The New York Times
by John Eligon

COLUMBIA, Mo. — At first, Briana Gray just chalked up the comments and questions from her new roommate at the University of Missouri to innocent ignorance: How do you style your hair? What do you put in it?
But then her white roommate from rural Missouri started playing a rap song with a racial slur and singing the slur loudly, recalled Ms. Gray, a black senior from suburban Chicago. Another time, the roommate wondered whether black people had greasy skin because slaves were forced to sweat a lot.

Then one day, Ms. Gray said, she found a picture tacked to her door of what appeared to be a black woman being lynched. When her roommate said a friend had done it as a joke, Ms. Gray said she attacked the girl and her friends. The police broke up the fight and no one was arrested. But Ms. Gray said her view on race relations had been indelibly changed.

***With Kansas City to the west and St. Louis to the east, the state has two urban hubs that account for most of the state’s black residents, about 12 percent of the population. The rest of the state is overwhelmingly rural and white. Both blacks and whites are underrepresented at the university compared with the demographics of the entire state. Eight percent of students are black, while nearly 80 percent are white, compared with about 84 percent of the state.

Educational outcomes at the university have also not always been equal. While about 83 percent of black freshmen return for their sophomore year, nearly 88 percent of whites and 94 percent of Asians do. And black students have the lowest graduation rate of all races, less than 55 percent, compared with 71 percent for whites.

Wednesday, November 11, 2015

Surveillance Holding Gets It Right | New Jersey Law Journal

 Surveillance Holding Gets It Right | New Jersey Law Journal
by the Editorial Board

In the shock of the aftermath of the catastrophic attacks of Sept. 11, 2001, the New York Police Department, like others, realized that they were ignorant of the threat until the attacks. They resolved to say, "never again." A program of surveillance of Muslim communities, mosques, businesses and organizations, extending to New Jersey, began. As alleged by the plaintiffs in Hassan v. City of New York, their objective was to prevent another surprise attack by developing informants in every Muslim mosque, store or organization.
The Muslim clerics, students, employers, and others who filed suit charge that NYPD surveillance was prompted by mere "affiliation" with a Muslim mosque, school or business. The plaintiffs claim the program is stigmatizing, and deters people from associating with Muslim organizations and enterprises. The plaintiffs allege that using faith rather than evidence as a trigger for suspicion and surveillance is an impermissible stereotype, violating the equal protection clause of the Fourteenth Amendment.
U.S. District Judge William Martini struck the complaint, finding that the plaintiffs lacked standing to sue. They had alleged no injury sufficient to give them the stake in the controversy mandated by the case and controversy clause of the U.S. Constitution. But the U.S. Court of Appeals for the Third Circuit, crediting as true the allegations of the Muslim plaintiffs, disagreed. Subjecting people on the basis of their faith, not their conduct, to police surveillance is akin to a "dignitary tort." It is the discrimination on the basis of faith affiliation alone that is the "affront"; the "claimed discrimination itself [is] the primary injury."
The City responds that the police mean no harm, that they are motivated by the desire to protect against threats like that inflicted that terrible September day in 2001. But, as the unanimous panel finds, discrimination on the basis of religion is "inherently invidious," regardless of the sincerity or purpose of the actors. The courts, the panel notes, are guardians of the Constitution, which forbids the inference that "examples of individual disloyalty prove group disloyalty." We have been down that sad road before, the court observes: "Jewish Americans during the Red Scare, African Americans during the Civil Rights Movement, and Japanese Americans during World War II."
Like the court, we do not doubt the NYPD's protective intentions. But if the allegations are proven, they will be an illustration that once again we have faced a not-uncommon mistake: that group identity is a "permissible proxy for criminality," and that pervasive surveillance of such groups can be carried out. In our view the Third Circuit properly vacated the dismissal and allowed the action to proceed.
Editorial Board members Lawrence Lustberg and Edwin Stern recused from this editorial.

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