Wednesday, January 28, 2015

Florida Bar Ethics Committee issues opinion on whether an attorney can advise clients to "clean up" a social media page before starting litigation //Professional Responsibility Blog

Professional Responsibility Blog: Florida Bar Ethics Committee issues opinion on whether an attorney can advise clients to "clean up" a social media page before starting litigation
 "Legal Ethics in Motion is reporting that the Florida Bar’s Professional Ethics Committee has just issued Proposed Advisory Opinion 14-1, which discusses the ethical obligations when advising a client to “clean up” the client’s social media pages before litigation is filed.  The opinion is only three pages long and you can read it here.  
Agreeing with an opinion by the New York County Lawyers Association published in 2013, the opinion concludes as follows:
In summary, a lawyer may advise that a client change privacy settings on the client’s social media pages so that they are not publicly accessible. Provided that there is no violation of the rules or substantive law pertaining to the preservation and/or spoliation of evidence, a lawyer also may advise that a client remove information relevant to the foreseeable proceeding from social media pages as long as an appropriate record of the social media information or data is preserved. Posted by Professor Alberto Bernabe

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Some Soul-Searching after the Occupy Central Movement | Human Rights in China 中国人权 | HRIC

A leading Hong Kong law professor and political observer explains that Hong Kong's growth has lagged.  Seventeen years ago it was well above Singapore in per capita gdp.  Now it lags sharply.  Its growth lags behind China's too.  But only greater, not lesser democracy, can move Hong Kong forward.  He concludes:

The Occupy Central Movement has awakened the political awareness of the people—the awareness that there is a democratic deficit in Hong Kong’s governance structure, that the deficit is fatal to Hong Kong’s future development, and that there is an urgency to fix it. The OCM also confirms the democratic determination of the people and the centrality of democracy as a practice in Hong Kong politics.
Some Soul-Searching after the Occupy Central Movement | Human Rights in China 中国人权 | HRIC

by Fu Hualing (傅华伶) 
University of Hong Kong - Faculty of Law

Maintaining Hong Kong’s economic prosperity and political stability has been a thorny issue for Beijing. Seen from Beijing, Hong Kong has, since 1997, become not only an economic burden but also a political liability. The prevailing perception on the mainland is that Hong Kong’s continuous economic stagnation necessitates policy support from the central government and restriction of competition from other Chinese cities, in order to pump up the Hong Kong economy. 
Politically, Hong Kong’s persistent demand for democratization and its direct and indirect influence on the mainland may be posing a challenge to the mainland political system. Hong Kong’s resilient struggle for autonomy is seen as presenting similar challenges already apparent in China’s peripheries: terrorist attacks in Xinjiang, self-immolations in Tibet, and political agitation in Taiwan. 

The worry in Beijing is that Hong Kong may slip away from Beijing’s grip, and that a democratized Hong Kong may cause a chain reaction in other parts of the mainland. Indeed, the more conservative wing of the CPC may prefer to roll back China’s commitment to gradual democratization in Hong Kong, if at all possible, and would be happy to see Hong Kong vote the limited reform package. It is in this context that we understand the difficult relations between Hong Kong and the central government authorities.
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Common sense or crackpot wisdom? // The National Debt

Everyone knows, common sense tells us that Obama's policies will drive us to hell in a tsunami of debt, debasing the dollar and driving up inflation.
The problem is that common sense is what you think before you have thought, investigated, studied, or observed. - gwc

Lindsey Graham: If Gay Marriage Is A Constitutional Right, Why Not Polygamy?

Sen. Lindsey Graham  (R - S.C.)
Presidential hopeful
Why not, indeed?  I watched Big Love.  Isn't there a right of free association? - gwc
Lindsey Graham: If Gay Marriage Is A Constitutional Right, Why Not Polygamy?
by Sahil Kapur

"Sen. Lindsey Graham (R-SC) asked Attorney General nominee Loretta Lynch to explain Wednesday at her confirmation hearing why polygamy wouldn't also become a constitutional right if if the Supreme Court decided that same-sex marriage was protected by the Constitution.
 "If the Supreme Court rules that same-sex marriage bans are unconstitutional — that it violates the Constitution to try to limit marriage between a man and a woman, that's clearly the law of the land unless there's a constitutional amendment to change it — what legal rationale would be in play that would prohibit polygamy?" Graham asked. "What's the legal difference between a state ban on same-sex marriage being unconstitutional but a ban on polygamy being constitutional?"

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Prosecuting Prosecutors for Perjury? 9th Circuit Weighs In Concurring Opinions

Concurring Opinions - The Law, the Universe, and Everything:

Prosecute Prosecutos for Perjury?  9th Circuit Comes Down Hard
by Prof. Ronald K.L. Collins
"Writing in the New York Observer, Sidney Powell began his column this way: “What will it take to produce honest and ethical conduct from our state and federal prosecutors? The Ninth Circuit has a suggestion. Perhaps a perjury prosecution will do it. In fact, that is exactly what should happen when prosecutors affirmatively lie. This case, Baca v. Adams, involves a clear violation of the Supreme Court’s decision in Napue, which holds that prosecutors cannot put on perjured testimony, much less lie themselves. Unfortunately, as I’ve documented elsewhere, it happens far too often, when it should never happen at all.”
I urge readers to take a look at Mr. Powell’s column, which is both informative and powerful. Even more so is the video of the exchange between Judges Alex Kozinski, Kim McLane Wardlaw, William Fletcher and  California Supervising Deputy Attorney General Kevin Vienna. Early on in his opening remarks (16 minutes into video), Mr, Vienna stated: “A number of things happened that should have not happened, and we’re not here to defend them.” But he defend them he did, albeit guardedly.
 It was downhill from there. Things got even worse when Judge Kozinski and his colleagues weighed on the matter of prosecutorial perjury. The clip is too extraordinary to quote — you really must see it. So, click on the video and watch how Mr. Vienna attempted to make the case for the State as the Judges dug deeper into the issue of proctorial perjury. → Over at Hercules and the Umpire, Judge Richard G. Kopf adds a few comments.
 UPDATE: This from John Roemer writing in the Daily Journal (Jan. 27, 2015): “Misconduct by Riverside County prosecutors has forced the reversal of a 1998 murder­for­hire conviction in a case that raised the ire of Circuit Judge Alex Kozinski and led to his demand that Attorney General Kamala D. Harris fix the situation.” “Riverside County’s new district attorney, Mike Hestrin, said Monday in a media statement, ‘While we do not concede the prosecutorial misconduct was intentional or malicious … I am requesting that Mr. Baca’s murder case be returned to Riverside County to allow a retrial unmarred by even the appearance of impropriety or unfairness.'”"

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Tuesday, January 27, 2015

The Supreme Court Meets the Real World - Room for Debate -

Akhil Reed Amar (Yale), Melissa Murray (UCBerkeley, and Ilya Shapiro (CatoInstitute) debate the issues.
The Supreme Court Meets the Real World - Room for Debate -
The justices will know that ruling against the Affordable Care Act would negate heath insurance for millions of people, and even if they reject constitutional protection for same-sex marriage thousands of such marriages have already occurred.
Should real-world effects influence the thinking of Supreme Court justices in reaching decisions?

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Monday, January 26, 2015

Budget Office Slashes Estimated Cost of Health Coverage -

If you hate paying taxes that benefit somebody else this is bad news not good news.  (If you earn over 400% of the federal poverty line you are not a beneficiary of an Obamacare insurance subsidy.)  But I think it is good news.  Three million have gained health coverage through Medicaid. though half the states (almost all with GOP governors) refuse federal aid to expand Medicaid (for the undeserving sick and poor, I guess),  And 7 million have bought health insurance from the Obamacare exchanges.  Three-quarters of them qualified for subsidies.

Almost everyone benefits from the ACA in some way.  Birth control is free.  Cancer screening  colonoscopies have no co-pay.  Same for the flu and pneumonia vaccines.  Your kids can stay on your policy until age 26.  You can't be denied coverage due to ore-existing conditions.  That means you can leave your job or get laid off and still find affordable coverage.
The ACA has driven health care costs down.  Of course it's not free.  And there are taxes.  We'll pay some of them - because we still have high income.  But I would rather live in a society that takes care of people than one that says "tough luck".  You are on your own.  - gwc
Budget Office Slashes Estimated Cost of Health Coverage -
by Robert Pear
The subsidies will cost the government less than originally expected, but are still substantial, the budget office said. “Subsidies in the [Affordable Care Act insurance] exchanges are projected to average about $5,000 per subsidized enrollee from 2016 through 2018 and to reach almost $8,000 in 2025,” Congressional Budget Office (CBO) Director Douglas Elmendorf said.
All told, the budget office said, the coverage provisions of the health care law will have a gross cost of nearly $2 trillion over the next 10 years, partly offset by $643 billion in new revenues and penalty payments. The law will reduce the number of uninsured by 27 million people, it said, but 31 million people will still be uninsured in 2025, the end of the projection period. [Most of them immigrants ineligible for subsidies.]
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Why the Supreme People’s Court is harnessing the NGO “genie” | Supreme People's Court Monitor

Why the Supreme People’s Court is harnessing the NGO “genie” | Supreme People's Court Monitor:
by Susan Finder
 "Many China observers were surprised to learn that in early January, 2015, the Supreme People’s Court (Court) issued an interpretation on enabling civil society organizations to sue polluters on behalf of the public, when most commentators take the view that those organizations are controlled more tightly than before.  The Court issued it after years of work, analysis, and low numbers of environmental lawsuits (highlighted in my earlier blogpost Tianjin's Environmental Crisis and the Courts), particularly public interest ones. 
 This blogpost explains: what the Interpretation does; what its background is; why the Court is enabling environmental NGOs to file suit; and An assessment of its implications. This blogpost should be read with NRDC Switchboard Barbara Finamore’s blogpost, How China’s Top Court is Encouraging More Lawsuits Against Polluters.

What the interpretation does

The interpretation, entitled “Interpretation on Several Issues Regarding the Application of Law in Public Interest Environmental Civil Litigation (Interpretation) (Chinese original found here and translated here). The Interpretation (like many other Court interpretations) combines court procedural rules with additional rules on liability and other legal standards to put in place a framework for Chinese environmental NGOs to file public interest environmental cases against polluters. It supplements Article 58 of the Environmental Protection Law (amended in 2014) and the 2012 Civil Procedure Law, because neither law had sufficient legal rules to guide local NGOs in bringing and local courts in accepting, hearing, and deciding these lawsuits.

See also: Notice on Implementing the System for Civil Environmental Public-Interest Litigation, January 6, 2015 (SPC, Ministry of civil Affairs, Ministry of Environmental Protection)

The highlights of the Interpretation:

* Broad definition of environmental NGOs that can file suit. At the press conference announcing the Interpretation, the Court spokesman said that a broad definition was adopted so that it would be flexible enough to accommodate additional types of approved non-profit groups. This may be have been done to accommodate contemplated reforms to non-profit institutions;
* Provisions permitting an NGO to seek a court within a provincial boundary but outside the locality of the polluter to hear the case. Because local courts are locally funded, they are often reluctant to hear or decide cases that cause result in judgments against companies that are often substantial contributors to local tax bases. An NGO is also allowed to sue polluters outside of its own locality. This was also highlighted in the same press conference.
* The Interpretation enables injured private parties to piggyback on the NGO’s case, also highlighted by the Court spokesman.
* Several provisions to require court oversight when NGO settles the lawsuit, to guard against intimidation by the polluter, which may be allied with local government.
* The damages the polluter pays are paid into a fund, which is used to compensate those harmed.
* If the defendant polluter refuses to provide information about pollution discharge, the court can presume that the plaintiff’s assertions have been established.
* Several provisions are designed to reduce the costs of litigation to the NGO.
The litigation must not be profit making for the NGO.

Charles Blow: At Yale, the Police Detained My Son -

New York Times columnist Charles Blow
To every cop who turned his back on Mayor DeBlasio this is the answer.  This is why the fathers of black boys warn them about the police. - gwc
Charles Blow: At Yale, the Police Detained My Son -

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Sunday, January 25, 2015

The ACA provision that should kill King v. Burwell | xpostfactoid

The ACA provision that should kill King, updated | xpostfactoid:
by Andrew Sprung

The ACA provision discussed below, which directs the federal as well as state exchanges to report to the Treasury tax credits provided to ACA private plan buyers, is treated in full in the United States of America's Brief for Respondents.   Submitted by the Solicitor General, joined by the Solicitor of Labor, and the General Counsel of the Treasury Department and the Department of Health and Human Services, the government brief emphasizes the overall design of the Affordable Care Act, its objectives, and the care subsidies crucial role in making the mandated insurance reforms financially viable.  Remember that the key structure - mandatory coverage - requires that premiums not only be affordable but that they be sufficient for insurance companies to be able to cover the greatly increased number of insured persons - and to achieve the broader coverage and lower deductibles and co-pays afforded by the ACA's Silver and Platinum policies, as well as mandated coverages such as birth control, preventive screenings, etc. - gwc

 Ever since a three-judge panel of the D.C. Circuit Court found in Halbig v. Burwell that the ACA only authorizes subsidies to be paid for health insurance bought in state-run exchanges, not in state exchanges set up by the federal government, progressive reporters have been ransacking the record to  prove what they always knew: that the law's creators never intended to exclude federally run exchanges from the subsidy regime.  Today, Greg Sargent and Jonathan Cohn both published compelling circumstantial evidence to that effect. It seems to me, though, that such circumstantial evidence should be unnecessary. The ACA includes a provision that ought to settle the issue -- on that the majority in Halbig egregiously misread. Health law scholar Timothy Jost highlighted the dispositive provision back in September 2011, two months after the IRS issued a rule spelling out that subsidies would be available through the federal exchange (at which point the brains behind the Halbig suit, Michael Cannon and Jonathan Adler, immediately began arguing in print that the IRS rule contradicted the ACA's text). With reference to the drafting error stipulating only that subsidies be credited through an exchange "established by a state," Jost asserted:
we do not need to rely on the courts to correct this error. Congress corrected it itself. Four days after Congress passed the Patient Protection and Affordable Care Act, it enacted the Health Care and Education Reconciliation Act of 2010. Section 1004 of HCERA amended section 36B(f) of the IRC to impose on exchanges established under section 1311(f)(3)—that is, state exchanges—and under section 1321(c)—that is federal exchanges, the obligation to report to the IRS and to the taxpayer information regarding tax credits provided to individuals through the exchange. In this later-adopted legislation amending the earlier-adopted ACA, Congress demonstrated its understanding that federal exchanges would administer premium tax credits. 
In a subsequent post, Jost noted, "As a later-adopted statute, HCERA would take precedence over PPACA if there were a contradiction."
***

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Fr. Richard McBrien, theologian, has died | National Catholic Reporter

Fr. Richard McBrien, Catholic theologian
Richard McBrien - the Notre Dame voice of  progressive Vatican II Catholicism in America has died.  A longtime columnist for National Catholic Reporter, he found diocesan paper after paper dropping his essays as the pinch of John Paul II and Benedict XVI was felt.
Rather than celebrate as heroic the U.S. Conference of Catholic Bishops adherence to the papal bar on artificial contraception, the embrace of mandatory priestly celibacy, and renunciation of female ordination Fr. McBrien never trimmed his conscience to fit current Vatican fashion.
We have lost a voice and must hope that Pope Francis's heart and Jesuit savvy last long enough to turn the doctrinal tide that has for fifty years been running in favor of a crabbed and cramped Catholicism. - gwc
Fr. Richard McBrien, theologian, has died | National Catholic Reporter:
"Fr. Richard McBrien, who as a scholar brought distinction to a university theology department and who as an author and often-interviewed popular expert explained the Catholic church to the wider world, died early Sunday morning. He was 78. McBrien had been seriously ill for several years and had moved recently from South Bend, Ind., to his native Connecticut. 

It would be difficult to find a figure comparable in making understandable to a broad public the basic beliefs and traditions of the Roman Catholic church. For more than three decades, he was the star of the theology faculty at the University of Notre Dame and the go-to voice on all matters Catholic in the popular press. 

His books, particularly Catholicism, Lives of the Popes and Lives of the Saints, were staples of libraries, Catholic and non-Catholic alike. At his peak in the 1980s and ’90s, it is arguable that McBrien had a higher media profile than anyone in the Catholic church other than Pope John Paul II. He was the ideal interview: knowledgeable, able to express complex ideas in digestible sound bites, and utterly unafraid of controversy.***
“I don’t hold things back,” McBrien said in a 1990 profile by the Chicago Tribune, adding in a rare moment of understatement: “I’m outspoken.”
Unabashedly on the progressive side of most Catholic debates, McBrien advocated the ordination of women priests, an end to mandatory celibacy for priests, moral approval of artificial birth control, and decentralization of power in the church. In so doing, he helped to define the battle lines within Catholicism over the legacy of the Second Vatican Council (1962-65).
He was a former president of the Catholic Theological Society of America and former chair of the theology department at the University of Notre Dame. To fans both inside and outside the theological guild, McBrien was a double icon. He lifted the status of Catholic theology, and American Catholic theology in particular, by his media visibility and literary accomplishment. He also cheered the liberal wing of the church by lending intellectual heft to its reading of Vatican II.

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Saturday, January 24, 2015

China's Supreme Prosecutor's Office - Guiding Cases China Law Translate | 高检关于案例指导工作的规定

China Law Translate | 高检关于案例指导工作的规定:
China's central government prosecutors struggle to find means to more effectively manage their sprawling public safety and security domain.  Taking a page from the Supreme Peoples Court the Supreme People''s Procuratorate they have embraced the "guiding case" model.Its 2010 guidance explains:
Article 15: After guiding cases are released, all levels of people's procuratorate may consult them in implementation.
Article 16: Where the procurator undertaking case handling feels that a guiding cases should not be applied when handling a case of the same type or disposing of a problem of the same type, he shall submit an opinion in writing and report the situation to the chief procurator or procuratorial committee for a decision.
Set Five summarizes three cases of robbery and homicide.

Thanks for all this to China Law Translate

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Court Denies Disqualification Motion- sees issues clearly //Legal Ethics Forum

Legal Ethics Forum: Court denies DQ motion; sees the issues clearly
The New York Supreme Court (New York County) denied a DQ motion filed after a joint defense representation fell apart. The joint rep letter was well written and contained lots of warnings and a good explanation of the consequences of a falling out. The court realized that granting the motion would effectively prevent clients from safely entering into joint defense agreements even when it helped the clients. All in all, a job well done by the trial court. Bonus: the New York court cited California's Zador v. Kwan. (h/t: Law Firm Risk Management Blog)
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Friday, January 23, 2015

The GOP `No Go Zone' - GOPlifer

With Steve King and Citizen United's Iowa Freedom Summit upon us it will be interesting to measure the GOP stand-up performers by how they approach the GOP No Go Zone.  Jeb Bush and Mitt Romney found other places to be but all the other usual suspects have been rounded up.  - gwc
Four inescapable realities - GOPlifer
by Chris Ladd

It is possible to win an election in a way that makes it impossible to govern. Republicans have been doing this for years, at mounting cost. The crux of the problem is an electoral appeal based almost entirely on paranoia and premised on denial of certain basic, observable realities.
Regardless what happens in any future election, Republicans will not regain the capacity to form intelligent, relevant public policy until we can grapple with four realities. Each item on this list is measurable, provable and broadly regarded as obvious. Failure to acknowledge these four truths means being as categorically, empirically wrong as it’s possible to be in the otherwise mushy, gray realm of politics:
1) Climate change is real and it is caused primarily by human activity.
2) Human beings evolved from simpler life forms, and the same evolutionary process shapes all living systems.
3) Abortion is a complex issue because it involves two legitimate liberty interests in conflict with one another.
4) Race still skews economic outcomes in the United States.
With great care and a willingness to avoid exposure to facts, an adult can carry on a reasonably competent existence while living in denial of these four realities. However, no one incapable of recognizing these obvious truths is qualified to serve in a public leadership capacity of any significance. Like a poorly aimed weapon, any legislation or executive action crafted in defiance of these truths will, at best, yield unnecessary collateral damage. In many cases, it will reap calamity.
Unfortunately, there is almost no corner of America in which a Republican can survive a primary election while openly acknowledging all four of these truths. As a consequence, however mistaken a Democratic policy may be, it is likely to be less damaging at the national level than a Republican alternative for as long as this condition persists (it’s worth noting, however, that Democrats have their own issues with #3).
None of those four realities dictate a particular policy response. Acknowledging these irrefutable realities would not force Republicans to abandon market economics, embrace abortion or violate any of the party’s traditional tenets. Some of these truths might be politically uncomfortable, but it is possible to devise policy responses to each of them that are entirely in line with traditional Republican agendas.  The Republican Party stubbornly refuses to acknowledge these realities because the party has developed over the past twenty years a purpose completely divorced from effective public administration.
A largely white, rural and Southern demographic bloc for whom the faster, freer world of global capitalism is a living nightmare has transformed the Republican Party into a bulwark against reality. Those who continue to look to religion not only to provide meaning, but to define their reality, are in a broad general state of panic that seems likely to continue until an older generation has seen their influence dissipate. They are determined to ensure that no government action of any kind, no matter how necessary for the protection of your interests or theirs, will in any way challenge the brittle, manufactured reality on which their mental security depends.
Republicans of a previous generation helped grant us this world. Republicans of this generation are determined to roll it back at all costs. If they must fail, they are content to see it all burn to the ground rather than confront a world of pluralism, accelerating change, and endless uncertainty.
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Thursday, January 22, 2015

PowerPoint Justice | The Marshall Project

Building on its 2012 decision in State v. Glassmann the Washington Supreme Court in State v. Walker reverses a murder conviction based on prejudicial power point slides used in summation.  A concurring opinion carefully analyses the prosecutor's missteps. The court reverses on grounds of plain error because the defense attorney failed to object. Another discussion of similar prosecutorial conduct is below. - gwc
PowerPoint Justice | The Marshall Project
by Ken Armstrong
"In Washington state earlier this month, in [State v. Herbin]  the Court of Appeals threw out a murder conviction based on shoddy work by the defense. But the court also took the prosecutor to task for something even stranger: a bad PowerPoint presentation.
The prosecutor had dressed up her closing argument to the jury with a series of slides, complete with “sound effects and animation,” the appellate court wrote. On one slide, footprints materialized across the bottom of the screen. Other slides exhibited “concentric rings of a target,” with each ring corresponding to an item of evidence; the defendant’s name, Sergey Fedoruk, was in the bull’s-eye. The prosecution’s final slide, the pièce de résistance, opened with a header that said “Murder 2.” Then, under the header, a single word flashed, in all capital letters, in 96-point red type:

h/t Legal Ethics Forum
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Will the Charges Against Sheldon Silver Hold Up?

Sheldon Silver, in custody
The Times reports today that the asbestos-related cancer physician at the center of the federal charges against New York Assembly speaker Sheldon Silver is Robert N. Taub.  Columbia University on Friday closed the mesothelioma center he has directed. Accepting the allegations in the complaint the U.S. could well persuade a jury that Taub bribed Silver by offering to refer potentially lucrative asbestos cancer cases to Silver's law firm- in anticipation of favorable action by Silver in his capacity as speaker.  But Silver was the U.S. target.  Taub was promised immunity in exchange for his cooperation.

The United States Attorney in New York has indicted State Assembly Speaker Sheldon Silver.  He is charged with depriving the people of the state of his honest services - i.e. using his official position for personal gain.  Federal jurisdiction is obtained under the wire fraud act 18 USC 1343 which former prosecutor, now Senior Judge Jed Rakoff once called "our stradivarius".

There are two sets of transactions addressed in the complaint (above) is that Silver received income from a law firm that handled certain real estate matters regarding which Silver did no work.  Those appear to be referral fees for tax appeal work he steered to attorney Jay Arthur Goldberg - not charged but named as a co-conspirator. Silver got 25% of the contingent fee, according to the Times report.

The other claim is that Taube - named as "Doctor 1" in the complaint  - referred asbestos product liability cases to Silver who was "of counsel" to Weitz Luxenberg - a leading firm in the field.  It alleges that Silver reciprocated by directing two grants of $250,000 to Taub's research program.

The Complaint refers to the income in both categories as "referral fees".  But it seems to me that though the characterization appears to fit the undisclosed real estate fees, it does not accurately describe Silver's income from Weitz Luxenberg.

Behind the Weitz Luxenberg fees according to the complaint are the demands of the physician who heads up the asbestos-related mesothelioma treatment program at the giant Columbia Presbyterian Medical Center.  "Doctor 1" reported to be Robert N. Taub, who serves as director of the Columbia University Mesothelioma Center.  He could steer his fatally ill patients and their families to lawyers but did not include among the beneficiaries of his referrals Weitz Luxenberg - leading practitioners in the field - because Weitz did not contribute to mesothelioma research projects.

In 2003  Doctor 1 began referring cases to Weitz.  He soon applied to Silver who was then associated with the Weitz firm.   Silver as Speaker controlled a discretionary health fund.  In 2005 Silver approved a $250,000 research gran to study the effects of release of asbestos dust in the 2001 World Trade Center catastrophe.  In 2007 a second $250,000 grant to the University was issued, allegedly at Silver's initiative.  No further grants were made, though Silver helped direct $25,000 in state funding to a non-profit on which a relative of Doctor 1 served.  Referrals to Silver's firm continued though diminished into 2010.
The New York Joint Appellate Rules Governing Professional Conduct of lawyers like ABA Model Rules, RPC 1.5 (c) (1) permits division of lawyers between lawyers "who are not associated in the same firm" only "in proportion to the services performed by each lawyer or each lawyer assumes joint responsibility for the representation", and (2) the client agrees to the arrangement, including the share each lawyer will receive and the agreement is confirmed in writing".  The undisclosed real estate fee income apparently does not meet the RPC requirements.
But the personal injury contingent fees appear to be a different matter because Silver is a salaried lawyer "associated" as of counsel in the firm.  It is a commonplace for lawyers to divide fees within a firm giving substantial weight to the lawyer who introduced the source of business to the firm.  According to the complaint that appears to be the case here.
- gwc

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Christeson v. Roper - lawyer's conflict of interest merits reversal in death case


No. 14–6873. Decided January 20, 2015
 Petitioner Mark Christeson’s first federal habeas petition
was dismissed as untimely. Because his appointed
attorneys—who had missed the filing deadline—could not
be expected to argue that Christeson was entitled to the
equitable tolling of the statute of limitations, Christeson
requested substitute counsel who would not be laboring
under a conflict of interest. The District Court denied the
motion, and the Court of Appeals for the Eighth Circuit
summarily affirmed. In so doing, these courts contravened
our decision in Martel v. Clair, 565 U. S. ___ (2012).
Christeson’s petition for certiorari is therefore granted,
the judgment of the Eighth Circuit is reversed, and the
case is remanded for further proceedings. ***

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Tuesday, January 20, 2015

Report of the Commission on Inclusive Prosperity | Center for American Progress

Report of the Commission on Inclusive Prosperity
This is the economic philosophy behind President Obama's State of the Union speech. - gwc
Report of the Commission on Inclusive Prosperity | Center for American Progress
by Lawrence Summers and Ed Balls
"History tells us that societies succeed when the fruits of growth are broadly shared. Indeed, no society has ever succeeded without a large, prospering middle class that embraced the idea of progress. Today, the ability of free-market democracies to deliver widely shared increases in prosperity is in question as never before.
The primary challenge democracies face is neither military nor philosophical. 'Rather, for the first time since the Great Depression, many industrial democracies are failing to raise living standards and provide opportunities for social mobility to a large share of their people. Some of those countries that have produced economic growth have done so in a manner that has left most of their citizens no better off.
This is an economic problem that threatens to become a problem for the political systems of these nations—and for the idea of democracy itself. The citizens of industrial democracies continue to value their freedom and their opportunity to participate in the task of self-government. But they also count on their political systems to create circumstances in which they can use their talents and their labor to provide a decent standard of life for themselves and their families.
When democratic governments and market systems cannot deliver such prosperity to their citizens, the result is political alienation, a loss of social trust, and increasing conflict across the lines of race, class, and ethnicity. Inclusive prosperity nurtures tolerance, harmony, social generosity, optimism, and international cooperation. And these are essential for democracy itself."
read more

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It's Looking More Like a BP Settlement Over Gulf Disaster - Bloomberg

It's Looking More Like a BP Settlement Over Gulf Disaster - Bloomberg
By Margaret Cronin Fisk and Laurel Brubaker Calkins Jan 20, 2015 

Last week’s ruling that BP Plc (BP/)’s Macondo well dumped less oil into the Gulf of Mexico than the U.S. government claimed may trigger a settlement before a decision on the amount it must pay after a trial set to begin this week. A federal judge determined on Jan. 15 that the penalty will be based on the size of the spill being 3.19 million barrels, about 25 percent less than estimated by the government. 
That ruling, which was followed by a 5.3 percent jump in BP shares, reduced the potential maximum pollution fines for the 2010 spill to $13.7 billion from $18 billion and increased the incentives for a settlement. “There’s a very good chance -- about 75 percent -- that they’ll settle,” said David Berg, a Houston trial attorney who has been following the litigation. 
Even if the case doesn’t settle before a trial verdict, BP probably won’t face a maximum fine against BP, Berg said. The range will likely be from $8 billion to $10 billion, he said. Even a fine of that size would be the largest civil penalty under the Clean Water Act, according to the Environmental Protection Agency. The current record is the $1 billion settlement Transocean Ltd. (RIG), which owned the Deepwater Horizon drilling rig that burned and sank in the Gulf spill, reached with the U.S. in 2013."

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Bobby Jindal, WTF? GOPLifer |

As I entered the law school yesterday Bobby Jindal was saying the usual stupid stuff about "political correctness", the dangers of "Sharia law", etc.  This is how you get the white racist vote in Louisiana, I guess.  - gwc
Bobby Jindal, WTF?  GOP Lifer
by Chris Ladd
"Why do smart Republicans say stupid things? It’s the central political question of our era and it demands an answer. In London Monday Bobby Jindal built an entire speech on the idiotic premise, already disavowed by Fox News, that European cities include sections specifically ceded to Islamic extremists. 
That isn’t even the dumbest thing he said. He repeated all the usual racist tropes about how Muslims fail to “disavow” violence, implying rather strongly and ignorantly that they do not. He also launched into a surprising diatribe about the mortal danger posed by immigrants who refuse to “assimilate.” 
There are only two credible explanations for this speech. Either Jindal is an idiot in the Michele Bachmann mold, or he is making a cynical, calculated career decision to abandon credibility in pursuit of power. 
 Let’s be absolutely clear – Bobby Jindal is not stupid. He’s a Brown University graduate in Biology who went on to complete a degree at Oxford as a Rhodes Scholar. Jindal has in the past flirted with the idea of coming out of the closet as a smart person by suggesting once that Republicans should stop saying stupid things. In that speech two years ago he chastised the party for embracing precisely the kind of “identity politics” he so forcefully endorsed on Monday. Being a smart guy he has apparently come to some conclusions about his career. He learned some lessons from his experience trying to be a principled leader."

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Monday, January 19, 2015

Martin Luther King, Jr. on Meet the Press (1965)

M.L. King, Jr. on Meet the Press in 1965.
"There are two types of laws...we have a moral obligation to disobey unjust laws.... Any man who willingly accepts the penalty is at that moment expressing the highest respect for law".

Sunday, January 18, 2015

Reagan Revolution rollback | xpostfactoid

Reagan Revolution rollback | xpostfactoid:
President Obama- speech on the economy December 4, 2013:
"As the trickle-down ideology became more prominent, taxes were slashes for the wealthiest while investments in things that make us all richer, like schools and infrastructure, were allowed to wither. And for a certain period of time we could ignore this weakening economic foundation, in part because more families were relying on two earners, as women entered the workforce. 
We took on more debt financed by juiced-up housing market. But when the music stopped and the crisis hit, millions of families were stripped of whatever cushion they had left. And the result is an economy that’s become profoundly unequal and families that are more insecure. 
Just to give you a few statistics: Since 1979, when I graduated from high school, our productivity is up by more than 90 percent, but the income of the typical family has increased by less than 8 percent. Since 1979 our economy has more than doubled in size, but most of the growth has flowed to a fortunate few. The top 10 percent no longer takes in one-third of our income; it now takes half. Whereas in the past, the average CEO made about 20 to 30 times the income of the average worker, today’s CEO now makes 273 times more." 
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Why the Oscars’ Omission of ‘Selma’ Matters -

David Oyelowo plays Martin Luther King.  Ava DuVernay directed "Selma"
Why the Oscars’ Omission of ‘Selma’ Matters -
by David Carr
Monday is Martin Luther King Jr. Day and given the context, it is an interesting moment to ask whether it really matters that the Motion Picture academy failed to nominate the black director and the black lead actor of “Selma,” the King biopic, for Oscars.

After all, it lands fairly low on the list of indignities visited on African-Americans: No unarmed people died, no innocent citizens were patted down or jailed.

But yes, it still matters. The news continues to be full of all manner of pathology and victimization involving black Americans, and when a moment comes to celebrate both a historical giant and a pure creative achievement, it merits significant and broad recognition.

Many would say that it should suffice that “12 Years a Slave,” a film by a black director about black history, won best picture last year, and “Selma” was nominated this year, and that any grievance is a conjured one. I disagree.
The director of “Selma,” Ava DuVernay, is a black woman who found the studio backing to make a movie that is great cinema, not a history lesson. And no club in the United States — over the last several years, the academy has beenaround 93 percent white, 76 percent male and an average of 63 years old — is in more need of new blood than Hollywood. The academy tends to recognize the body of work of directors, not just a single film, and this is just Ms. DuVernay’s third narrative feature, so that may have played a role.
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Why don't white moderates speak up? Kentucky Teenage Suspects Arrested In Florida After Crime Spree

With white on white crime rampant... Why don't southern white Christians speak up about the deep problems in white Christian culture? - gwc
Kentucky Teenage Suspects Arrested In Florida After Crime Spree"
JANUARY 18, 2015
— Two teenage sweethearts suspected in a crime spree of stolen vehicles and pilfered checks across the U.S. South have been taken into custody in Florida, Kentucky authorities said Sunday. Grayson County Sheriff officials said in a statement that 18-year-old Dalton Hayes and his 13-year-old girlfriend, Cheyenne Phillips, were arrested without incident about 12:10 a.m. Sunday in Panama City Beach. The two had eluded police in multiple states while raising concern about their increasingly bold behavior."

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War on Gaza: A promise Israeli politicians can keep | +972 Magazine

War on Gaza: A promise Israeli politicians can keep | +972 Magazine
 "As they head into elections, Netanyahu, Livni, Herzog, Lapid and Yishai can agree on one thing: even after nine military operations in 14 years, the only solution to the conflict with Gaza is another war with Hamas.
 By Yonatan Mendel"

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Cutting Transom Angles | Boatbuilders Site on

Cutting Transom Angles | Boatbuilders Site on "Figuring out how to cut the angle on a transom can be a little challenging. Joshua Burks is currently building our Zip which is a 14′ runabout that has a 12 degree angle on the transom as do many of our designs. Joshua is documenting his build with video. He’s done a really good job at walking us through his build and explaining what he does. You can see all his videos on his You Tube Chanel. The second video pertains to today’s article about cutting the transom angles. One of the considerations is how much material to add to the transom to allow for the angle. We have explained how this is done in a formula and photo below, but for those of you who are visual, Joshua’s video is excellent and really shows how much more simple it is than you might think. I hope you enjoy the video:"<
iframe width="640" height="360" src="//" frameborder="0" allowfullscreen></iframe>

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Case law Chinese style–where is it going? | Supreme People's Court Monitor

Case law Chinese style–where is it going? | Supreme People's Court Monitor:
by Susan Finder
On 6 January 2015, case law Chinese style (案例指导制度) made the headlines of the People’s Court Daily and the Supreme People’s Court’s (the Court’s) websites, because the Supreme People’s Court president, Zhou Qiang provided an introduction to a book that the Court is publishing on guiding cases. Universities such as Yale, Stanford, and the City University of Hong Kong as well as institutions such as the European Union have held training programs with Court staff on the case method. Numerous academic conferences have been held on the topic in China. The Communist Party leadership expressed its approval for case law in the 4th Plenum Decision in the following phrase:
Strengthen and standardize judicial interpretation and case guidance, and unify standards of applicable law (加强和规范司法解释和案例指导,统一法律适用标准).

As discussed in this blogpost, the Court’s October, 2013 judicial reform plan flagged the importance of case law in this phrase:
“Expand fully the important role of guiding cases and cases for reference”.

This blogpost will look at how the Court leadership understands Chinese “case law” and how it sees case law to be useful to the judiciary.
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I.R.S., Already Hobbled, Likely to Be Further Damaged -

I.R.S., Already Hobbled, Likely to Be Further Damaged -
The Editorial Board
 "The obsession among House conservatives to hobble the Internal Revenue Service is about to pay off this tax season in foolhardy budget cuts to the agency that will cost the government an estimated $2 billion in lost revenue. That works out to about $6 in lost taxes for every $1 in cuts Congress made in reducing the I.R.S. budget another 3 percent this year, according to the Treasury Department. The slashed budget is a victory for penny-wise-and-pound-foolish politicians. It amounts to payback demanded by House Republicans to penalize the I.R.S. for daring to scrutinize Tea Party operations that tried to claim exemptions under the tax code for nonpolitical groups. Democratic groups trying the same thing were also scrutinized."

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Will the Supreme Court Annihilate One of the Best Tools Against Housing Discrimination? // Economic Policy Institute

Will the Supreme Court Annihilate One of the Most Effective Tools for Battling Racial Segregation in Housing? | Economic Policy Institute

The segregation of low-income minority families into economic and racial ghettos is one cause of the ongoing achievement gap in American education. Students from families with less literacy come to school less prepared to take advantage of good instruction. If they live in more distressed neighborhoods with more crime and violence, they come to school under stress that interferes with learning. When such students are concentrated in classrooms, even the best of teachers must spend more time on remediation and less on grade-level instruction.
The Economic Policy Institute, together with the Haas Institute for a Fair and Inclusive Society at the University of California, have organized a large group of housing scholars—historians and other social scientists—to sign a friend-of-the-court brief urging that housing policies perpetuating segregation should be banned.
The case was filed by the Inclusive Communities Project (ICP), a Dallas civil rights group that had been promoting racial integration in the Dallas area by assisting African American families who were eligible for rent subsidies (commonly known as “Section 8” vouchers) to find affordable apartments in predominantly white neighborhoods. This was difficult to accomplish because so many of the tax-subsidized low-income family housing developments that the Texas Department of Housing approved were located in heavily minority and low-income communities.
Those who defend practices like those of the Texas Department claim that they do not intentionally promote segregation but that developers pick minority and low-income communities for subsidized housing, not to purposely reinforce segregation, but because such communities are convenient for prospective tenants who live nearby.
Convenience should be no excuse, however, for perpetuating segregation. Our brief makes the following argument: historically, the federal, state and local governments have, in concert with each other and with private interests, acted to purposely segregate metropolitan areas by race. Once these patterns of segregation were established by deliberate racial policy, placement of federally subsidized housing (to be occupied predominantly by minority tenants) in already segregated neighborhoods unlawfully reinforces this segregation, even if Jim Crow policies are no longer in effect and no purposeful intent to segregate can be proven. It should be deemed unlawful for government agencies simply to respond to developer proposals without considering their racial impact, because the Fair Housing Act requires these agencies to affirmatively pursue integrated housing. As our brief recounts, a much earlier (1972) Supreme Court decision stated that the Fair Housing Act’s main purpose is to “replace ghettos ‘by truly integrated and balanced living patterns.’” This purpose would be improperly repudiated if the Court were now to permit practices like those of the Texas Department of Housing.
It is unlikely but possible that the Texas case will be settled before the Supreme Court issues its ruling. If so, developers will almost certainly seek another case in which the court will be invited to permit practices that perpetuate segregation, even where a deliberate intent to segregate cannot be proven. Possibly, we may again file a brief, tailored to the facts of a new case. If you are an historian or social scientist who would like to join any future such brief, please let us know and

Bad Blood: Death Penalty Lawyer vs. Texas Court // The Marshall Project

Bad Blood | The Marshall Project
by Maurice Chammah

"On Wednesday, the judges of Texas’ highest criminal court told a defense attorney named David Dow he would not be able to practice in front of them for the next year. The Court of Criminal Appeals decided that Dow had filed a motion to stop the execution of his client, Miguel Angel Paredes, too late, and that since he’d done the same thing in a different case in 2010, he will now be suspended.
Neither the court nor Dow, a professor at the University of Houston Law Center and one of the best known death penalty defense attorneys in the country, will comment publicly. But this move is the latest evidence of an ongoing feud in Texas between lawyers who appeal on behalf of inmates facing executions, Dow chief among them, and the judges who rule on their claims.
On the surface, the fights have been about deadlines, but, as criminal justice blogger Scott Henson described Dow’s relationship with the judges back in 2009, “Basically these folks just don't like each other on a level that transcends any given issue.”
Miguel Paredes was executed last October for a triple murder of gang rivals, committed in 2000. The summer before the execution, he wrote a letter to Dow asking for help, and Dow volunteered — without being appointed to the case — to investigate Paredes’ claims. It took a while owing to Dow’s busy schedule, but he found that Paredes’ original lawyer had called no witnesses at the trial and that Paredes was allowed to waive an early appeal while on anti-psychotic medications.
Dow filed an appeal and a call for a stay seven days before the execution. The court said he should have filed it the day before. The court has explicitly said the deadline is seven days before an execution, but in practice attorneys know that they must have it in eight days before. It wasn’t the first time Dow had clashed with the court over deadlines.*****"
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Saturday, January 17, 2015

Alabama State Constitution of 1901 - Black Voters Disenfranchised // Initial Constitution - Wikisource

Watching Selma the thought occurred to me - where did the County Clerk get the authority to deny the vote?  The Alabama Constitution of 1901 limited the franchise to men, required the poll tax to be paid, and made it a criminal offense (bribery) to pay or advance to another the money to pay the poll tax.  But there was more - much more. -gwc
Alabama State Constitution of 1901/Initial Constitution - Wikisource, the free online library
Article VIII  Suffrage and elections
[Qualified to register]
First. - All who have honorably served in the land or naval forces of the United States in the war of 1812, or in the war with Mexico, or in any war with the Indians, or in the war between the states, or in the war with Spain, or who honorably served in the land or naval forces of the Confederate States, or of the State of Alabama in the war between the states; or,
Second. - The lawful descendants of persons who honorably served in the land or naval forces of the United States in the war of the American Revolution, or in the war of 1812, or in the war with Mexico, or in any war with the Indians, or in the war between the states, or in the land or naval forces of the Confederate States, or of the State of Alabama in the war between the states; or,
Third. - All persons who are of good character and who understand the duties and obligations of citizenship under a republican form of government.
181. After the first day of January, nineteen hundred and three, the following persons, and no others, who, if their place of residence shall remain unchanged, will have, at the date of the next general election, the qualifications as to residence prescribed in section 178 of this article, shall be qualified to register as electors; provided, they shall not be disqualified under section 182 of this Constitution.
First. - Those who can read and write any article of the Constitution of the United States in the English language, and who are physically unable to work; and those who can read and write any article of the Constitution of the United States in the English language, and who have worked or been regularly engaged in some lawful employment, business, or occupation, trade or calling, for the greater part of the twelve months next preceding the time they offer to register; and those who are unable to read and write, if such inability is due solely to physical disability; or,
Second. - The owner in good faith in his own right, or the husband of a woman who is the owner in good faith, in her own right, of forty acres of land situate in this state, upon which they reside; or the owner in good faith in his own right, or the husband of any woman who is the owner in good faith, in her own right, of real estate situate in this state, assessed for taxation at the value of three hundred dollars or more, or the owner in good faith, in his own right, or the husband of a woman who is the owner in good faith, in her own right, of personal property in this state assessed for taxation at three hundred dollars or more; provided, that the taxes due upon such real or personal property for the year next preceding the year in which he offers to register shall have been paid, unless the assessment shall have been legally contested and is undetermined.

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Forgotten Archipelagoes: Wang Yongqing: Unwaveringly March the Path of Socialist Rule of Law with Chinese Characteristics

There has been a lot of tea leaf reading and Kremlinology about this recent article by the Chairman of the CPC's  political-legal commission.  There are calls for turning to China's imperial past, etc.  In my view there is little need for guessing and surmising.  The CP recognizes that as society grows more complex and its structures elaborated the Party's command structures will inevitably weaken.  They are determined to be the Party permanently in power - and effective modernization combined with sentimental patriotic celebration is part of the plan.  - gwc
Forgotten Archipelagoes: Wang Yongqing: Unwaveringly March the Path of Socialist Rule of Law with Chinese Characteristics: "
[This is an article Wang Yongqing 汪永清, the Secretary General of the CCP Central Commission for Politics and Law 中共中央政法委员会, published on the first 2015 issue of Seeking Truth 求是. The original  was translated in cooperation with Rogier Creemers and Jeremy Daum].  
0 The question of the path relates to the whole picture and decides its success or failure. The 'CCP Central Committee Decision concerning Some Major Questions in Comprehensively Moving Forwards Ruling the Country According to the Law' (hereafter simply named “Decision”) passed at the 4th Plenum of the 18th Party Congress, has clearly declared to the country and the world that we will unwaveringly march along the path of Socialist rule of law with Chinese characteristics.***

The core essence of the path of Socialist rule of law with Chinese characteristics is persisting in the leadership of the Chinese Communist Party, persisting in the Socialist system with Chinese characteristics and implementing the theory of Socialist rule of law with Chinese characteristics. The Party's leadership is the most fundamental trait of Socialist with Chinese characteristics, and the most basic guarantee for Socialist rule of law; the Socialist system with Chinese characteristics is the basic institutional basis for a Socialist rule of law system with Chinese characteristics, and it the basic institutional guarantee for comprehensively moving ruling the country according to the law forward; the theory of Socialist rule of law system with Chinese characteristics is the theoretical guidance and academic pillar for the Socialist rule of law system with Chinese characteristics, and the guideline for action in comprehensively moving ruling the country according to the law forward. These three aspects determine and guarantee the institutional properties and progressive orientation of constructing a Socialist rule of law system with Chinese characteristics and constructing a Socialist rule of law country.***

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