Friday, October 31, 2014

Supreme Court and circuit court rulings on voter ID and abortion: Poor and powerless don’t count.

Supreme Court and circuit court rulings on voter ID and abortion: Poor and powerless don’t count.
by Dahlia Lithwick  // Slate
“The Supreme Court of the John Roberts era gets one thing very right: It’s one of the most free-speech-protective courts in modern history. There is no purveyor of semi-pornographic crush videos, no maker of rape-aspiring violent video games, no homophobic funeral protester, no anti-abortion clinic counselor, and no filthy-rich campaign contribution–seeker whose rights and privileges will not be treated by the Court with the utmost reverence and solicitude.”
Later in the same essay, Lithwick adds:
“This brings us back to the First Amendment, seemingly the only right that truly counts anymore in America. Why has the constitutional right to be heard all but overmastered the right to vote or legally terminate a pregnancy? Maybe the court is still capable of hearing even as it loses the ability to see? Or maybe the powerful voices of Fred Phelps, Shaun McCutcheon, and Anthony Elonis—the creatures who rightly are allowed to say and do horrible things in the name of free speech—count for more than the hundreds and thousands of voiceless voters and abortion-seekers who are seemingly not even important enough to name?”
'via Blog this'

Thursday, October 30, 2014

Messing With Texas Again: Putting It Back Under Federal Supervision

Messing With Texas Again: Putting It Back Under Federal Supervision:
By Richard L. Hasen (UC Irvine)
 Readers of the entire 147-page opinion issued earlier this month by a federal district court striking down Texas’s strict voter identification law as unconstitutional and a violation of the Voting Rights Act might have been too exhausted to realize that the opinion’s very last sentence may be its most important.
The court ended its opinion with a dry statement promising a future hearing on “plaintiffs’ request for relief under Section 3(c) of the Voting Rights Act.” That hearing, however, has the potential to require Texas to get federal approval for any future voting changes for up to the next decade, and to make it much more difficult for the state to pass more restrictive voting rules.
It may be much more important than the ruling on the voter ID law itself. From 1975 through 2013, Texas was one of a number of (mostly Southern) states and jurisdictions which were subject to “preclearance” under Section 5 of the Voting Rights Act. This meant that before Texas could make any changes in its voting rules (such as enacting a voter identification law or passing a new redistricting plan) it had to demonstrate either to the United States Department of Justice or to a three-judge federal court in Washington D.C. that its change was not intended, and would not have the effect, of making minority voters worse off."

'via Blog this'

LSAT takers drop again - 8.1%

LSATs Administered

Only 30,093 people took the LSAT this fall.  That is the lowest number since 1998 when 33,558 took it, which was a thirty year low.  The 2014 number is an 8.1% drop from 2013. - GWC
'via Blog this'

Bet on a GOP Senate Majority - Larry J. Sabato and Kyle Kondik and Geoffrey Skelley - POLITICO Magazine


Bet on a GOP Senate Majority - Larry J. Sabato and Kyle Kondik and Geoffrey Skelley - POLITICO Magazine: "While many races remain close, it’s just getting harder and harder to envision a plausible path for the Democrats to retain control of the Senate. Ultimately, with just a few days to go before the election, the safe bet would be on Republicans eventually taking control of the upper chamber."

'via Blog this'

Wednesday, October 29, 2014

Sen. King Switches Endorsement From Indy To Dem In Maine Gov. Race

Sen. King Switches Endorsement From Indy To Dem In Maine Gov. Race:
Senator Angus King ((I-Maine)
"The good news is that we still have a chance to elect a governor who will represent the majority of Maine people: my friend and colleague, Mike Michaud. And today, I’d like to offer him my support. I have worked with Mike Michaud for twenty years and know that he has what it takes to be Maine’s next Governor. He has lived the American dream -- going from the mill floor in Millinocket to the halls of Congress -- and he knows in his heart that everyone, willing to work for it, deserves a chance to get ahead. Mike believes in protecting our environment and finding new ways to grow Maine’s economy and, as I have seen first-hand, is absolutely tenacious in defending Maine's interests."

'via Blog this'

MDL Litigation: the Wild West and the smoke filled room - Redish & Karaba //Boston University L. Rev.

"MDL amounts to a strange cross between The Wild West and political smoke-filled rooms of the twentieth century — hardly a combination that augurs well for either due process or the rule of law....
The most immediate response to reliance on the utilitarian calculus is that it completely ignores any concern with individual dignity or autonomy, which are properly deemed to provide the theorectical DNA of the Due Process Clause...
Whereas class action in every case requires a transparent judicial finding of adequate representation of the interests of absent claimants, MDL has no such requirement.  Whereas in most class actions absent class members have the right to opt out of the proceeding, MDL provides no means either for withdrawing from the proceeding or even meaningfully challenging the legality or propriety of inclusion within it. "
- Redish &Karaba

One Size Doesn't Fit All: Multidistrict Litigation, Due Process, and the Dangers of Procedural Collectivism by Martin H. Redish, Julie M. Karaba :: SSRN:
"Multidistrict litigation (“MDL”) has, in recent years, become so central a device in complex litigation as to be almost routine. As authorized by federal statute, the Multidistrict Litigation Panel of federal judges regularly transfers cases which may share no more than one common issue from federal districts all over the nation into a single transferee district. The transferee court is then in charge of all pre-trial procedure for all of the cases on a collective basis. This includes conduct of discovery as well as pre-trial motions, including summary judgment.

While the transferee district is not permitted to adjudicate the merits of the individual suits at trial (other than in the form of several test cases, binding only on the specific litigants involved), as a practical matter cases return to their transferor districts very rarely. Instead, there is constant pressure to form a global settlement. While individual claimants may opt out of that settlement, the settlement usually effectively ends the process.
The claimants’ pre-trial cases are controlled by an appointed steering committee of selected attorneys. Although much has been written on the subject of multidistrict litigation, none of that scholarship to this point has directly challenged the constitutionality of the process. This Article, in contrast to all prior scholarship, conducts a frontal assault on the constitutionality of MDL as a stark violation of the individual claimant’s due process right to her day in court. In so doing, the Article explores the underlying political and constitutional theory of a litigant’s right to her day in court, and explains how current MDL practice unambiguously undermines that right.
MDL amounts to a strange cross between The Wild West and political smoke-filled rooms of the twentieth century — hardly a combination that augurs well for either due process or the rule of law. The Article considers and rejects the supposed utilitarian values of efficiency attained by use of MDL as an asserted justification for the serious interference with the individual’s control of her own case.
In making its case against the constitutionality of MDL, the Article contrasts the methods by which class action procedure — itself subject to several challenges over the years on due process grounds — seeks to protect the due process rights of absent class members. The Article concludes that whatever due process problems impact class actions pale in comparison to the dangers deriving from the crude form of procedural collectivization imposed by MDL. The Article ends with an exploration of ways in which MDL’s constitutionality might be salvaged through important modifications in its processes."

Tuesday, October 28, 2014

Govern according to Law: Decision of China's CP Central Committee Plenum October 23, 2014

Rule of law or governing according to law 依法治国 is a longstanding objective of the ruling Chinese Communist Party.  Limitations on free speech, suppression of dissenters, and most of all one party rule have been the objects of much western criticism for obvious reasons.  But the effort to ring "Socialist rule of law" to China is a serious one.  A reasonably full statutory structure has been built, a large court system and extensive legal education system  This Plenum - a once every five years policy-making meeting of the CP is dedicated to consolidating te gains.

Rogier Creemers (Oxford) and Jeremy Daum (Dui Hua) have produced a lightning quick translation of this major policy statement.  - gwc


CCP Central Committee Decision concerning Some Major Questions in Comprehensively Moving Governing the Country According to the law Forward | China Copyright and Media:

"Translation complete, by Rogier Creemers with the cooperation of Jeremy Daum

Passed on 23 October at the 4th Plenary Session of the 18th Central Committee of the Chinese Communist Party

 In order to implement the strategic deployment made at the 18th Party Congress and accelerate the construction of a Socialist rule of law country, the 4th Plenary Session of the 18th Central Committee has considered some major questions in comprehensively moving ruling the country according to the law forward, and made the following Decision.

 I, Persist in marching the path of Socialist rule of law with Chinese characteristics, build a Socialist rule of law system with Chinese characteristics.

Ruling the country according to the law is an essential requirement and important guarantee for persisting in and developing Socialism with Chinese characteristics, and it is an inevitable requirement to realize the modernization of the national governing system and governing ability, it affects our Party’s governing and rejuvenating the country, it affects the people’s welfare, peace and health, and it affects the long-term peace and order of the Party and the country.

 To comprehensively build a moderately prosperous society and realize the Chinese Dream of the great rejuvenation of the Chinese nation, comprehensively deepen reform, perfect and develop the Socialist system with Chinese characteristics and raise the Party’s governing ability and governance levels, we must comprehensively move ruling the country according to the law forward.

 Our country is in the primary stage of Socialism, the comprehensive construction of a moderately prosperous society has entered a decisive stage, reform has entered a phase of assault and a region of deep water, international circumstances are complex and mercurial, our Party is facing reform, development and stability tasks that are unprecedentedly heavy, and contradictions, risks and challenges in unprecedented numbers, the position of ruling the country according to the law has become more prominent in the overall picture of the work of the Party and the country, and its rule more important.

In the face of new circumstances and new tasks, our Party must even better deal with both the domestic and international big pictures, even better safeguard and utilize this important period of strategic opportunity for our country’s development, even better comprehensively plan social forces, balance social interests, adjust social relationships and standardize social acts, to ensure that our country’s society is full of vitality as well as well-ordered during profound change, to realize economic development, political peace, cultural glory, social justice and ecological welfare, and to realize the strategic objective of our country’s peaceful development, we must give even better rein to the guiding and driving role of the rule of law......."

for the full text - in English and Chinese click on the link above

Monday, October 27, 2014

Jamie P. Horsley: China's rulers commit to the (socialist) rule of law- Nikkei Asian Review

Jamie P. Horsley: China's rulers commit to the (socialist) rule of law- Nikkei Asian Review:
Jamie Horsley is Executive Director of the Yale China Law Center

 "Amid signs of a faltering economy, an anti-corruption campaign that has ensnared some 180,000 party cadres, daily protests and an increasingly complex international environment, China's Communist Party leadership convened last week to discuss "governing the country in accordance with law." The goal was to chart a course toward legal and governance reforms, in order to bolster public trust in the party and help achieve sweeping economic and other reforms announced nearly a year ago.      As anticipated, the Central Committee Fourth Plenum, held Oct. 20-23, reaffirmed the necessity of party leadership to build "socialist rule of law." While more detailed results of the meeting are expected shortly, the initial concluding communique gave unusual prominence to the constitution as the country's basic law. ***
***"Sunshine" judiciary

Significant reforms to enhance the stature of the judicial system, which includes both the courts and the procuratorates that investigate and prosecute cases, are among the more concrete measures described in the communique.

Faced with a rising number of disputes of growing complexity, the party recognizes that political interference, low compensation and corruption have undermined trust in the system.

To promote more independent exercise of judicial authority, the plenum directed the exploration of cross-jurisdictional courts and procuratorates removed from local government pressure. It also called for a system to end "interference" by leading cadres in specific cases by recording, reporting and pursuing individual liability for such obstruction.

The current Supreme People's Court has overseen a reduction in use of the death penalty, the overturning of wrongful convictions and increased transparency of the entire judicial process. It has promised more open trials and required that judicial decisions nationwide be posted online. The plenum endorsed such developments through its call for stronger judicial guarantees of human rights and building a "sunshine" judiciary that is open, dynamic and convenient for the people.

To ensure that leaders in all sectors take these initiatives seriously, the plenum ordered that rule-of-law indicators be written into annual cadre performance evaluations, and that government officials and judges be held permanently accountable for their decisions, even after they transfer to different positions or retire.

Global implications

Increased law-based governance also holds implications for China's international relations. The plenum called for strengthening foreign-related legal work and using legal measures to safeguard China's sovereignty, security and development interests -- as well as to protect Chinese citizens and corporations abroad and foreign counterparts in China.

The more law-based, transparent, participatory and accountable China becomes, the more it might be expected to achieve its goals of delivering sustainable economic growth along with social justice and stability. It would also be better positioned to participate constructively in the rules-based international system. These are outcomes the international community should welcome.

'via Blog this'

SCOTUSblog on camera: Laurence H. Tribe (Part four) : SCOTUSblog

SCOTUSblog on camera: Laurence H. Tribe (Part four) : SCOTUSblog:
VIDEO
"“People ask, ‘Why did you pick constitutional law?’  I mean, come on.  Who, with a real opportunity to dig into a subject of law would not want that to be constitutional law?  It has everything.  It has history.  It has moral philosophy.  The meaning of liberty, of equality, of dignity.  It has legal technicalities galore.  It has precedent.  It involves strategy, dealing with complicated human situations and the people who are affected by law, and the human dynamics of complicated institutions like the U.S. Supreme Court.”

 In this six-part interview, Laurence H. Tribe, the Carl M. Loeb University Professor and Professor of Constitutional Law at Harvard Law School, discusses his background, from his birth in Shanghai, China during World War Two and his early interest in mathematics to teaching presidents and Supreme Court Justices and arguing cases before the Supreme Court; the inspiration and purpose of his latest book, Uncertain Justice: The Roberts Court and the Constitution , written with former student Joshua Matz; and understanding essential, accessible points of the Supreme Court, principles in constitutional law and leading issues of the day — “Obamacare,” racial equality, gay rights, campaign finance, and the relation of privacy and technology."
<iframe width="560" height="315" src="//www.youtube.com/embed/PCFmSHoOHkg" frameborder="0" allowfullscreen></iframe>


'via Blog this'

Keating on Geistfeld - Tort Liability as Compensation - Jotwell: Torts

Tort Liability as Compensation - Jotwell: Torts:

by Prof. Gregory Keating (USC)
"Mark Gesitfeld, Compensation as a Tort Norm, in Philosophical Foundations of the Law of Torts (John Oberdiek ed., 2014).

 For more than a decade, Mark Geistfeld has been developing an original and sophisticated theory of tort. Professor Geistfeld’s work has been characterized by a remarkable and admirable confluence of four characteristics. First, the work is attentive to, and respectful of, the fundamental commitments and nuances of tort doctrine and policy. Second, Professor Geistfeld’s writings display a deep knowledge of tort history and theory. Third, the work deploys a deeply sophisticated knowledge of economics but does so in language that is intelligible to those of us who are not legal economists. Fourth, the work is sensitive and responsive to the criticisms that legal philosophers have made of the economic analysis of torts.
The result is an impressively original tort theory in the making. In Compensation as a Tort Norm, published in John Oberdiek, ed., Philosophical Foundations of the Law of Torts (Oxford, 2014) Professor Geistfeld both summarizes and extends his project. The central claim of Compensation as a Tort Norm is vividly counterintuitive. According to Professor Geistfeld, all tort law—especially that part of the law which obligates actors to avoid harming others and thus demands the avoidance of actions whose occurrence triggers the payment of compensation—is compensatory.
 Quoting Frederick Pollock, who was himself quoting Justinian, Professor Geistfeld begins his paper with the claim that the law of torts “has for its main purpose nothing else than the development of [the] precept ‘Thou shalt do no hurt to thy neighbor.’” Elaborating, Geistfeld quotes Percy Winfield’s restatement of this precept as the principle that “all injuries done to another person are torts, unless based on some justification recognized by law.” The natural way to read these remarks, I think, is to take them to assert that the infliction of injury is presumptively tortious. Therefore, the infliction of injury presumptively gives rise to a claim for compensation.".........

'via Blog this'

The Faculty Lounge: Police Arrest SLU Law Professor and Legal Observer During Saint Louis Protests


Faculty Lounge: Police Arrest SLU Law Professor and Legal Observer During Saint Louis Protests: "Community members continue to hold protests in different areas of the Saint Louis metropolitan region, directed against racial profiling and racially-motivated killings by area police.  During one of these recent protests, my SLU Law colleague, Professor Justin Hansford, was arrested by the police.  In a beautiful essay, Justin recounts the experience and the road ahead.  Here's just an excerpt: "Protesting is an act of hope. It's not altogether reasonable to believe that standing in a certain place, walking around in circles, chanting and clapping, can in some way create a better world. But it calls for a measure of determination to offset the inevitable fear of backlash, repression, arrest, and violence that accompanies any endeavor of speaking truth to power. I am proud of my efforts to protect the First Amendment rights of these protesters, and no attempt to criminalize this legal work will change that. Dissent makes our democracy dynamic, and in this case in particular, I share the dreams of those who protested that day and wish avidly that their hope is fulfilled. The hope that animates this movement in Ferguson is the dream of new relationship with the police that is defined by mutual respect. The good news is that there are many ways to do that. The bad news is that any meaningful solution is going to require both the community and police to give up something they value. For the community, it will entail giving up time and energy as a new culture of more vigorous citizen oversight of policing emerges. For the police, it will entail giving up a general culture of impunity, and being held accountable financially and professionally for excessive use of force and racial profiling in black and brown communities, perhaps for the first time in our nation's history. As much pain as these changes might bring, and as difficult as it may be to get us there, making this transition is the only viable pathway to a future of racial harmony, peace, justice, and human rights.""

'via Blog this'

China considers abolishing death penalty for nine crimes

China guards executions as a state secret.  Dui Hua estimates - based on press accounts - that it executed 2,400 last year.  That number is greeted skeptically by Chinese friends.  But Dui Hua seems to be a reliable source to me. - gwc

China considers abolishing death penalty for nine crimes

(Reuters) - China is considering trimming nine crimes from the list of offences punishable by death, state media said on Monday, as the ruling Communist Party considers broader reforms to the country's legal system.
Rights groups say China uses capital punishment more than any other country, raising public concern of irreversible miscarriages of justice.
A draft amendment to China's criminal law, which includes the use of the death penalty, was submitted for initial review to the country's National People's Congress, the official Xinhua news agency said.
Crimes that would be exempt from capital punishment under the amendment include "smuggling weapons, ammunition, nuclear materials or counterfeit currencies; counterfeiting currencies; raising funds by means of fraud; and arranging for or forcing another person to engage in prostitution", Xinhua said.
The crimes of "obstructing a commander or a person on duty from performing his duties" and "fabricating rumors to mislead others during wartime", are also under review, the news agency said.
Officials had previously said that China would review the application of the death penalty, which applies to 55 offences, including fraud and illegal money-lending.
China guards the number of people executed every year as state secrets.

The San Francisco-based D

'via Blog this'

Sunday, October 26, 2014

Quarantines could discourage health workers: Dr.Fauci, NIH Director

Dr.Anthony Fauci, NIH Director embraces Dallas Nurse
Nina Pham who recovered from Ebola diagnosis after treating Liberian man
NIH Official: Mandatory Quarantines Have Negative Consequences

"The best way to protect us is to stop the epidemic in Africa, and we need those health care workers so we do not want to put them in a position where it makes it very, very uncomfortable for them to even volunteer to go." he said.

He said active and direct monitoring can accomplish the same thing as a quarantine because people infected with Ebola do not become contagious until they start showing symptoms. Ebola is transmitted through direct contact with the bodily fluids of an infected person.

New York, New Jersey and Illinois imposed mandatory quarantines after Dr. Craig Spencer, a Doctors Without Borders physician who treated patients in Guinea, was diagnosed with Ebola last Thursday. The doctor, who is now in isolation at New York's Bellevue Hospital, had been on the subway, went bowling and to a park and restaurant before showing symptom

Friday, October 24, 2014

Johnson & Johnson's DePuy wins first trial over Pinnacle hips | Reuters

Johnson & Johnson's DePuy wins first trial over Pinnacle hips | Reuters
By Jessica Dye and Lisa Maria Garza Oct 23 (Reuters)

 Johnson & Johnson was found not liable by a Texas jury on Thursday in the first case to go to trial over whether Pinnacle hip implants made by the company's DePuy Orthopaedics unit were defective.

The test case had high stakes for the pharmaceutical giant, which is hoping to avoid a replay of a $2.5 billion settlement it agreed to last year for a different metal-on-metal hip device.
The Dallas federal jury ruled unanimously against the plaintiff Kathleen Herlihy-Paoli, who said the two metal-on-metal Pinnacle hips she received in 2009 were faulty and that the company failed to warn patients and doctors about the device's risks.
DePuy had said the implants were improperly positioned, and not to blame for her injuries. Jurors needed about two days to deliberate, after a seven-week trial.
Plaintiffs' lawyers selected Herlihy-Paoli's lawsuit to be among the first to go to trial out of more than 6,600 lawsuits over the Pinnacle hips. The unanimous win for DePuy is expected to affect its approach to the rest of the lawsuits, which are consolidated before U.S. District Judge Ed Kinkeade.
DePuy spokeswoman Mindy Tinsley said the company was pleased with the verdict and was committed to the "long-term and vigorous defense" of the litigation.
The metal-on-metal device "was appropriately developed, thoroughly tested and responsibly marketed," she said in a statement.
A lawyer for Herlihy-Paoli, Mark Lanier, called the case "the first skirmish in what is likely to be a long war."
"We still plan to press on with fierce dedication to clients we believe have been tragically wronged," he said.
Herlihy-Paoli said she required multiple surgeries to fix and replace her implants after the surrounding tissue became infected and the level of the metal cobalt in her blood soared to 85 times the normal level.
Her 2012 lawsuit said the device's metal components rubbed together, shedding metal ions.
At trial, lawyers for Herlihy-Paoli accused DePuy of aggressively marketing the devices to more active people, while concealing abnormally high failure rates.

DePuy's lawyers countered that the devices were safe when used and implanted properly. They also said Herlihy-Paoli unfairly targeted DePuy for problems linked to different metal-on-metal hips, such as the company's ASR devices.
At trial, lawyers for Herlihy-Paoli accused DePuy of aggressively marketing the devices to more active people, while concealing abnormally high failure rates.
DePuy's lawyers countered that the devices were safe when used and implanted properly. They also said Herlihy-Paoli unfairly targeted DePuy for problems linked to different metal-on-metal hips, such as the company's ASR devices.
Last year, DePuy agreed to pay $2.5 billion to settle more than 7,000 lawsuits over the ASR devices, which it recalled in 2010.
DePuy stopped selling the metal-on-metal Pinnacle devices in 2013.
Carl Tobias, a University of Richmond law professor, called the verdict surprising and said jurors may have responded to DePuy's argument that the hips may have been improperly positioned.
"They can take some comfort in this verdict," he said, referring to DePuy. "But I'm sure there will be more."
The case is Herlihy-Paoli v. Pinnacle, U.S. District Court for the Northern District of Texas, No. 12-4975.

'via Blog this'

Thursday, October 23, 2014

Why Turning Out The Vote Makes A Huge Difference In Four Charts


Why Turning Out The Vote Makes A Huge Difference In Four Charts
By SEAN MCELWEE  Published OCTOBER 23, 2014  Despite the best efforts of Lil’ Jon, the most recent Gallup poll suggests that turnout in the upcoming midterm election will be one of the lowest in the last five cycles. If trends hold up, it will also be heavily biased in favor of the rich (see chart). This turnout gap will have important effects on elections and policy."


'via Blog this'

Pope Francis calls for abolishing death penalty and life imprisonment | National Catholic Reporter

Pope Francis calls for abolishing death penalty and life imprisonment | National Catholic Reporter
by Francis X. Rocca
 "Pope Francis called for abolition of the death penalty as well as life imprisonment, and denounced what he called a "penal populism" that promises to solve society's problems by punishing crime instead of pursuing social justice. "It is impossible to imagine that states today cannot make use of another means than capital punishment to defend peoples' lives from an unjust aggressor," the pope said Thursday in a meeting with representatives of the International Association of Penal Law.
 "All Christians and people of good will are thus called today to struggle not only for abolition of the death penalty, whether it be legal or illegal and in all its forms, but also to improve prison conditions, out of respect for the human dignity of persons deprived of their liberty. And this, I connect with life imprisonment," he said. "Life imprisonment is a hidden death penalty."
 The pope noted that the Vatican recently eliminated the death penalty from its own penal code. According to the Catechism of the Catholic Church, cited by Pope Francis in his talk, "the traditional teaching of the church does not exclude recourse to the death penalty, if this is the only possible way of effectively defending human lives against the unjust aggressor," but modern advances in protecting society from dangerous criminals mean that "cases in which the execution of the offender is an absolute necessity are very rare, if not practically nonexistent.""

'via Blog this'

O'Reilly: OK, Levittown was segregated, but still...

Our first Levitt house on Pond Lane
looked just like this one
We grew up in Levittown.  Bill O'Reilly and I are contemporaries.  I never spoke to a Black person until I was in high school in Brooklyn.  In 1957 we moved to Massapequa. No racial covenants in the deeds, but 100% white.  No accident, of course. - gwc
O'Reilly: OK, Jon Stewart Was Right About One Thing In 'White Privilege' Debate
 "Fox News host Bill O'Reilly conceded on Wednesday night that comedian Jon Stewart was at least right about something during their debate about white privilege. O'Reilly, a skeptic of the idea that white privilege even exists in modern America, faced off against the host of Comedy Central's "The Daily Show" last week. During the debate, Stewart pointed out that O'Reilly's hometown of Levittown, N.Y., at one time didn't allow blacks to live there and was built as a racially segregated community.
 On Wednesday night, O'Reilly dissected the debate with guest and Fox senior correspondent Eric Shawn. "Stewart is correct, Shawn, that blacks couldn't move into Levittown in 1950," O'Reilly said. "When did that change?" "Well, he's correct because the federal government actually backed that," Shawn said. "The Federal Housing Administration had a covenant in the lease of the house that your parents owned that said that it could only be used by caucasians. That started to change in '54, '55 with some court cases."
 "Mmhmm," O'Reilly said. "But still, Levittown, by 1960 out of 15,000 homes there were still only 15 owned by African Americans," Shawn said. O'Reilly noted that the Fair Housing Act prohibited discrimination against black people after 1968. "So Stewart is right that there was a period of time but the mistake he makes is that there was some kind of privilege associated with living in Levittown," O'Reilly said. "He's making it out to be Bel Aire. Trust me, it was a good place to grow up because there were a lot of kids, but there wasn't any privilege involved in growing up there." "And black on Long Island lived in places like Hempstead and Westbury," O'Reilly added. "Some of those neighborhoods were good and some of them weren't. But there was integration so we have to give Stewart props for history. Right. But white privilege extending out? Wrong.""

Rule of Law in China - Official Central Committee Communiqué on 4th Plenum | China Copyright and Media


Leadership charts path

依法治国 Govern according to law
Because the Chinese CP suppresses anti-party activists and operates a parallel - largely secret - system of law within the Party the announcement that the theme of the Central Committee meeting would be rule of law was met with cynicism.  But if one takes them on their own terms the PRC is "perfecting" its legal system  And there are statements in the official communique that "intra-party" rules will also be improved.  The limits are plain.  They plan to:
construct a line of Socialist rule of law work teams who are loyal to the Party, loyal to the country, loyal to the people, and loyal to the law.
For the complete document in English and Chinese click on the headline below.
Good summary HERE
- GWC
 translation by Prof. Rogier Creemers (Oxford)
Official Central Committee Communiqué on 4th Plenum  | China Copyright and Media
The Plenum pointed out that, to comprehensively move ruling the country according to the law forward, we must forcefully raise the ideological and political quality, professional work ability and professional ethics levels of rule of law work teams, strive to construct a line of Socialist rule of law work teams who are loyal to the Party, loyal to the country, loyal to the people, and loyal to the law.
Build high-quality rule of law specialist teams, put ideological and political construction first, strengthen the construction of legislative teams, administrative law enforcement teams and judicial teams, unblock circulation channels between judicial, law enforcement and judicial departments cadres and talents, and towards cadres and talents meeting conditions in other departments, move the regularization, specialization and professionalization of rule of law specialist teams forward, perfect legal professional access systems, establish mechanism to recruit legislative workers, judges and prosecutors from amongst lawyers and legal experts meeting conditions, complete standardized and convenient mechanisms to recruit talent from among graduates specialized in politics and law, and perfect professional protection systems.
Strengthen the construction of legal service teams, strengthen the consciousness and resolve of the broad lawyers to march the path of Socialist rule of law with Chinese characteristics, build lawyer teams where social lawyers, public service lawyers, corporate lawyers, etc., mutually supplement each other, which are rationally structured.
Innovate rule of law talent fostering mechanisms, shape perfect Socialist legal theory systems, science systems and teaching systems with Chinese characteristics, promote that Socialist rule of law theory with Chinese characteristics enters textbooks, enters classrooms and enters minds, foster and bring up rule of law talents and reserve forces who are familiar with and persist in Socialist rule of law with Chinese characteristics.

'via Blog this'

Wednesday, October 22, 2014

For the Israeli media, Gazan lives are little more than expendable | +972 Magazine


Whenever a Palestinian commits a crime - like today's auto assault killing  civilians in Israel - friends of Israel rally.  Each crime is seen as evidence of the irredeemable ant-semitism of Palestinians.  If one suggested that a crime by a Jew is evidence of the evil character of Jews it would be rightly denounced.
So what is the right way to handle these problems?  A fair approach in my view is to recognize that both sides are immured and inured to the hardships of "the Other".
Increasingly my sympathy goes to the Palestinians - because they are suffering more from Israeli occupation and retaliation than vice versa.  Of course Jews fear that in the (implausible) event that the tables were turned their survival would be at risk.  Understandable, but not justifiable. A reasonable settlement establishing a contiguous sovereign Palestinian state with control of its borders would bring peace and security.  Of course there will be dead-enders who refuse to accept defeat, but I estimate that they would be few once the main grievances are addressed.  Unfortunately Gaza languishes in the wreckage of war and Israeli public opinion slides away from support for a settlement.  Peace appears increasingly remote.  - gwc
For the Israeli media, Gazan lives are little more than expendable | +972 Magazine:
by Haggai Matar
"Nearly two months after the end of Operation Protective Edge, the Israeli media refuses to ask the difficult questions. Who decided that killing entire families is now allowed? What is the justification for doing so? And why won’t the army explain why it killed five members of the Joudah family? Why doesn’t anyone care about the Joudah family? Nearly two months have passed since Israeli Air Force pilots bombed their yard in Gaza, killing the mother of the family and four of her children.
 Until today, the IDF has not published an explanation of the incident. Actually, almost no one has bothered to ask. A mother and four of her children were sitting in their yard and were killed with no prior notice, and the Israeli media doesn’t deem this worthy of a story. Why? It happened on August 24.
According to Issam Joudah’s testimony, the family was sitting in the shade of their yard in order to get some fresh air during the hot summer months. Issam was making coffee in the house when the missile exploded in the yard, killing his wife and four of his children. Only two children survived – one of them was badly wounded and is undergoing rehabilitation in Germany."

'via Blog this'

马克 Zuckerberg 会说中文


Doing Today's Work Superbly Well — Treating Ebola with Current Tools — NEJM

Doing Today's Work Superbly Well — Treating Ebola with Current Tools — NEJM: "The Ebola outbreak that is ravaging West Africa is a daily staple of the lay press and of scholarly medical publications. Ebola evokes fear among both the public and clinicians. It also evokes a sort of therapeutic nihilism — after all, if there is no treatment, what can be done? And without an Ebola-specific antiviral medication, of what use are infectious-disease clinicians? Without oxygen, let alone mechanical ventilators, how can acute and critical care clinicians possibly contribute?
We have traveled several times to West Africa and done primary patient care in treatment centers and hospitals in Guinea (Conakry and Guéckédou), Sierra Leone (Kenema, Bo, and Daru), and Liberia (Monrovia, Bong, and Foya). Before each trip, as we prepared to go to the front lines of Ebola medical care as part of World Health Organization and Médecins sans Frontières clinical teams, we, too, felt a certain unease about treating a highly transmissible infection for which there is no vaccine, no specific therapy, and a high mortality rate.
Yet we also appreciated that most viral illnesses, and certainly most critical illnesses, have no specific therapy. And after spending much of the past 5 months treating patients with Ebola virus disease (EVD), we are convinced that it's possible to save many more patients. Our optimism is fueled by the observation that supportive care is also specific care for EVD — and in all likelihood reduces mortality. Unfortunately, many patients in West Africa continue to die for lack of the opportunity to receive such basic care."

'via Blog this'

Arkansas, a Demographic Challenge for Democrats - NYTimes.com


The GOP should change its name to the White Flight Party.  - gwc
Arkansas, a Demographic Challenge for Democrats - NYTimes.com
by Nate Cohn

"Arkansas was one of the most reliably Democratic states of the 20th century. It voted for Southern Democrats like Bill Clinton and Jimmy Carter by large margins. Al Gore lost the state in 2000, but by only a modest five percentage points. When Mark Pryor was first elected senator there in 2002, Arkansas was still fairly fertile ground for Democrats. The son of a Democratic senator, he defeated an incumbent Republican by a comfortable eight points in a good year for Republicans.
Twelve years later, Arkansas vies with West Virginia for the distinction of being the state where Democrats have suffered the greatest losses over the last decade. The fact that Arkansas is even in the discussion for that title is remarkable; the so-called War on Coal created a problem for Democrats in West Virginia coal country that has no equivalent in Arkansas. Nonetheless, President Obama lost Arkansas by 24 points in 2012 — the second-worst performance by a Democratic presidential candidate in the state’s history."

'via Blog this'

China's legislature adopts revised Environmental Protection Law - People's Daily Online

China's legislature adopts revised Environmental Protection Law - People's Daily Online: "BEIJING, April 24 --
The Standing Committee of China's National People's Congress (NPC), the country's top legislature, on Thursday voted to adopt revisions to the Environmental Protection Law. With 70 articles compared with 47 in the original law, the revised Environmental Protection Law, the first change to the legislation in 25 years, sets environmental protection as the country's basic policy.
The new law says that economic and social development should be coordinated with environmental protection and encourages studies on the impact environmental quality causes on public health, urging prevention and control of pollution-related diseases. It says that the country should establish and improve an environment and health monitoring, survey and risk assessment mechanism."

'via Blog this'

Tuesday, October 21, 2014

The Dental School Model for Law Schools Future


In the 1970's and 1980's dental schools experienced a decline in applicants very similar to what law schools have been experiencing.  Several universities closed their dental schools - including Georgetown, Loyola Chicago, and Fairleigh Dickinson (NJ).   Absent an unanticipated surge in law school applications - which could only follow a substantial uptick in jobs - law schools are in for an era of reduced enrollment and threats to solvency.  Independent schools will be hit hardest, but university-based schools will also find the limits of what their hosts are willing to pay in subsidies. - gwc     h/t Legal Ethics Forum
The Legal Whiteboard:
 "By Jerry Organ
For four consecutive years we have seen a decline in the number of applicants to law school and a corresponding decline in the number of matriculating first-year students.  Over the last year or two, some have suggested that as a result of this “market adjustment” some law schools would end up closing. 
Most recently, the former AALS President, Michael Olivas, in response to the financial challenges facing the Thomas Jefferson Law School, was quoted as stating that he expects several law schools to close.  To date, however, no law schools have closed (although the Western Michigan University Thomas M. Cooley Law School recently announced the closure of its Ann Arbor branch).
 Have law schools found ways to cut costs and manage expenses in the face of declining revenues such that all will remain financially viable and remain in operation?  Is it realistic to think that no law schools will close?
 Although there may be a number of people in the legal academy who continue to believe that somehow legal education is “exceptional” – that market forces may impose financial challenges for law schools in the near term, but will not result in the closing of any law schools -- this strikes me as an unduly optimistic assessment of the situation.  To understand why, I think those in legal education can learn from the experience of those in dental education in the 1980s. The Dental School Experience from 1975-1990"
for more click on the link above
'via Blog this'

China Executed 2,400 People in 2013, Dui Hua : The Dui Hua Foundation


China Executed 2,400 People in 2013, Dui Hua : The Dui Hua Foundation:
"SAN FRANCISCO (October 20, 2014) — The Dui Hua Foundation estimates that China executed approximately 2,400 people in 2013 and will execute roughly the same number of people in 2014. Annual declines in executions recorded in recent years are likely to be offset in 2014 by the use of capital punishment in anti-terrorism campaigns in Xinjiang and the anti-corruption campaign nationwide."

'via Blog this'

Sunday, October 19, 2014

Cuba’s Impressive Role on Ebola - NYTimes.com

Is there any chance that after the presumed Republican takeover of the Senate the President will end the blockade of Cuba?
Cuba’s Impressive Role on Ebola - NYTimes.com:
 "Cuba is an impoverished island that remains largely cut off from the world and lies about 4,500 miles from the West African nations where Ebola is spreading at an alarming rate. Yet, having pledged to deploy hundreds of medical professionals to the front lines of the pandemic, Cuba stands to play the most robust role among the nations seeking to contain the virus.
 Cuba’s contribution is doubtlessly meant at least in part to bolster its beleaguered international standing. Nonetheless, it should be lauded and emulated. The global panic over Ebola has not brought forth an adequate response from the nations with the most to offer. While the United States and several other wealthy countries have been happy to pledge funds, only Cuba and a few nongovernmental organizations are offering what is most needed: medical professionals in the field.
 Doctors in West Africa desperately need support to establish isolation facilities and mechanisms to detect cases early. More than 400 medical personnel have been infected and about 4,500 patients have died. The virus has shown up in the United States and Europe, raising fears that the epidemic could soon become a global menace. It is a shame that Washington, the chief donor in the fight against Ebola, is diplomatically estranged from Havana, the boldest contributor. In this case the schism has life-or-death consequences, because American and Cuban officials are not equipped to coordinate global efforts at a high level.
This should serve as an urgent reminder to the Obama administration that the benefits of moving swiftly to restore diplomatic relations with Cuba far outweigh the drawbacks. The Cuban health care workers will be among the most exposed foreigners, and some could very well contract the virus. The World Health Organization is directing the team of Cuban doctors, but it remains unclear how it would treat and evacuate Cubans who become sick.
Transporting quarantined patients requires sophisticated teams and specially configured aircraft. Most insurance companies that provide medical evacuation services have said they will not be flying Ebola patients. Secretary of State John Kerry on Friday praised “the courage of any health care worker who is undertaking this challenge,” and made a brief acknowledgment of Cuba’s response.
As a matter of good sense and compassion, the American military, which now has about 550 troops in West Africa, should commit to giving any sick Cuban access to the treatment center the Pentagon built in Monrovia and to assisting with evacuation."

'via Blog this'

Bibi Tries and Fails To Bypass the Palestinians

Bibi Tries and Fails To Bypass the Palestinians
by J.J. Goldberg

Israeli Prime Minister Benjamin Netanyahu’s big idea for a regional partnership with moderate Arab states to confront violent extremism — while leaving the Palestinian conflict on the back burner — got doused with a big bucket of cold water in mid-October.Make that two buckets. One was from his most important ally in the Arab world, Egyptian President Abdel Fatah al-Sissi. The other was from his largest coalition partner, the centrist Yesh Atid party.Sissi welcomed delegates to an October 12 international conference in Cairo on rebuilding Gaza — to which Israel was pointedly not invited — with a speech that was directed as much to the Israeli public as to the delegates. His message: You can’t ignore the Palestinian problem. It will only get worse. The only way to ease tensions, avoid escalating Palestinian-Israeli violence and achieve partnership with the moderate Arab states is through Palestinian independence, via the Arab Peace Initiative.Related Yesh Atid’s message was simpler and more direct: If Netanyahu doesn’t find a way to renew talks with the Palestinian Authority and move toward a permanent two-state peace pact, Yesh Atid will leave the coalition, topple the government and force new elections.“If Netanyahu doesn’t go that way, Yesh Atid will pull out,” said party Knesset whip Ofer Shelah, party leader Yair Lapid’s closest political confidante, in a telephone interview.Shelah said his party was pressing for the convening of an international conference to shepherd Israeli-Palestinian peace negotiations, with the Arab Peace Initiative as a basis for the talks. The point of a conference is that the backing of moderate Arab states — principally Egypt, Jordan and Saudi Arabia — can lend legitimacy on the Palestinian street to difficult concessions that the Palestinian leadership has trouble making on its own. At the same time, Arab states’ participation can drive home to the Israeli public the reality of regional acceptance as a product of a peace deal.


Read more: http://forward.com/articles/207445/bibi-tries-and-fails-to-bypass-the-palestinians/#ixzz3GeLcPY00

Courting Corruption: The Auctioning of the Judicial System - The Atlantic

American Enterprise Institute  Congressional scholar Norm Ornstein starts of this piece by noting a David Brooks column that makes Ornstein "cringe".  That's every Brooks column for me, but Ornstein is focused on the Times conservative writer's advice that we should just "relax" about Citizens United and unlimited campaign spending.  Ornstein - the perennial and sensible NewsHour talking head, begs to differ.  - gwc
Courting Corruption: The Auctioning of the Judicial System - The Atlantic
by Norm Ornstein
[T]he desperation to raise money means lawmakers pandering to big donors or shaking them down—trading access for favors, or threatening retribution. And it means more vicious ads, done by anonymous groups, which only enhance the corrosive cynicism voters have toward all politicians. And it means more sham independence and blockage of disclosure, without any enforcement of existing laws by the outrageously lawless Federal Election Commission, led by Caroline Hunter and Lee Goodman.
And we should relax? But that is not the worst of the new world of campaign finance post-Citizens United. The worst comes with judicial elections—and that worst could be worsened by a pending Supreme Court case that may allow sitting judges actively to solicit campaign funds for their own elections. Here is what we know. Loads of money—mostly conservative—went into judicial-retention elections in the last cycle in Florida, following a similar experience in 2010 in Iowa and Illinois.
We saw similar efforts on a smaller scale in other states, including Wisconsin and Michigan. All had a ton of attack ads. Those efforts have exploded in the 2014 elections. In North Carolina, where repeal of the state's Judicial Campaign Reform Act by the right-wing legislature opened the door to a further explosion of campaign spending, and where the GOP sees retaining a majority on the court (ostensibly, but risibly, nonpartisan) as a key to their continued hegemony in politics, the Republican State Leadership Committee spent $900,000 on an unsuccessful primary campaign to unseat Justice Robin Hudson, and will target Court of Appeals Judge Sam Ervin IV in his second attempt to move to the Supreme Court (the first one, in 2012, cost $4.5 million or more). Much of the spending will come in the next month, and will total many millions, most of it from outside groups.
The Republican State Leadership Committee is targeting judges in Ohio, Michigan, Montana, North Carolina, New Mexico, and Texas. In Tennessee, Republican Lieutenant Governor Ron Ramsey, working hand in glove with the RSLC, led a conservative effort to unseat three justices up for retention. If they had lost, Gary Wade, Cornelia Clark, and Sharon Lee—all endorsed by a bipartisan evaluation panel—would be replaced by Republican Governor Bill Haslam. Once again, millions were spent to defeat them.
Thanks to a counter-campaign, led by lawyers who practice in front of them, all three eked out bare victories in the August retention elections. Lew Conner, a Republican who served as a judge appointed by then-Governor Lamar Alexander, has said about Ramsey, "What he's doing, I think, is just terrible. It's an attack on the independence of the judicial system." It is true that the politicization and increasing partisanship of the courts has paralleled, or followed, the tribalism in the political process. And it is true that a sharper tone in judicial elections preceded Citizens United. But the concerted efforts by activist James Bopp to go state by state and remove all restrictions on how judicial elections are run—making them just like political campaigns—combined with the effective elimination of boundaries on funding and the blockage of disclosure, have dramatically changed judicial elections. Vicious attacks on the integrity of judges themselves undermine confidence in the judiciary, but that is not the major problem.
 Here is the reality: If judges fear multimillion-dollar campaigns against them, they will have to raise millions themselves, or quietly engineer campaigns by others to do so. Who will contribute, or lead those efforts? Of course, those who practice in front of the judges will, creating an unhealthy dynamic of gratitude and dependency. Worse, imagine what happens when judges are deciding cases in which the stakes are high, and well-heeled individuals or corporations will be helped or damaged by the rulings. The judges know that an adverse decision now will trigger a multimillion-dollar campaign against them the next time, both for retribution and to replace them with more friendly judges. Will that affect some rulings? Of course.
 I agree with retired Supreme Court Justice Sandra Day O'Connor that judicial elections in general are an abomination. They are no way to select impartial and high-quality jurists. But judicial elections in the age of Citizens United make it so much worse. This will ultimately undermine the whole idea of an independent judiciary, which is the single most significant bedrock of a functioning democratic political system. So, David, I do not relax about campaign spending. And neither should you."

'via Blog this'

What China Means by ‘Rule of Law’ - NYTimes.com


Yale China Law Center's director is in the glass half full camp when looking at the development of the Chinese legal system.  My Fordham colleague Carl Minzner is firmly in the glass half empty camp. - gwc
What China Means by ‘Rule of Law’ - NYTimes.com:
by Paul Gewirtz (Yale Law School)
 "NEW HAVEN — Two weeks ago, with the democracy protests in Hong Kong in full swing, China’s official People’s Daily newspaper labeled them “illegal” and called for protecting “the rule of law” in Hong Kong. Such statements left observers with little doubt about a central meaning “the rule of law” has in the People’s Republic: the Communist Party’s use of law to control and regulate society. Yet there’s plenty of evidence that China sees the rule of law in far more nuanced and complex ways.
Today the Communist Party’s 18th Central Committee starts its Fourth Plenum, and the main topic will be the rule of law in China — the first time in party history that a meeting with the authority of a plenary session will focus on the rule of law. And there are reasons for a measure of optimism that the plenum will demonstrate more complex views about the roles law can play and also take meaningful steps to advance new legal reforms.
 Of course, legal reform has major limits in China’s one-party authoritarian system. There won’t be true judicial independence. All bets are off whenever the party sees a threat to its continued power; steps toward the rule of law don’t mean steps toward multiparty political democracy, which China’s current leaders totally resist.
When the plenum issues its report, it will surely underscore that one central role of law is to maintain social order. But, contrary to what pessimistic observers have predicted, the plenum is not likely to treat law as merely a tool for the party to control Chinese society, a throwback to the “Legalist School” of philosophy from 2,200 years ago which President Xi Jinping seems fond of quoting. Chinese society and its legal system have already changed too fundamentally for that, and the current regime led by Mr. Xi has already signed onto many reforms and even adjustments in ideology that represent positive steps toward a modern system of rule of law.
These changes aren’t just window-dressing; they reflect the leadership’s recognition that it needs to improve governance, address widespread public grievances, and respond to public opinion. Consider some legal reforms that have been made in just the last few years. Use of the death penalty has been cut roughly in half, with improved procedures for deciding on its use. A new Criminal Procedure Law has been adopted, providing significantly more protections to suspects and defendants. The odious system of “re-education through labor” has been abolished (though, to be sure, what will replace it is still not clear)."
to read more click on link above

'via Blog this'

Feinberg backs BP in bid to overturn settlement

Shrimp trawler on the Gulf Coast

Kenneth Feinberg, who worked for BP in the Gulf oil spill while claiming to be independent, is trading again on his reputation as a modern day Edward the Confessor.  He has urged the Supreme Court to grant cert in BP's attack on the deal it negotiated but now regrets in part.

His amicus brief declares "Amicus Kenneth R. Feinberg was selected by Executive Branch officials to help design, implement, and administer two successful alternatives to the conventional tort litigation system."  ``Selected by Executive Branch officials' is cagey.  True for the 9/11 Fund, not for the BP spill.  He was "selected" by BP and presented at a June 2010 White House press conference to spread pacifying oil on the troubled waters of public opinion as the Gulf region reeled from the still uncontained spill.

In an incidental irony BP is trying to remove Patrick Juneau as court-appointed settlement administrator.  They claim not to have known Juneau had represented Louisiana in dealing with the Feinberg-administered "Gulf Coast Claims Facility".  Feinberg, of course, knew, so in my view his principals are chargeable with that knowledge.   MDL judge Carl Barbier ruled that Feinberg was BP's agent. - gwc

Mass Tort Litigation Blog:

By Alexandra Lahav (UConn Law School)
The papers in the Deepwater Horizon Settlement cert petition are mostly in.   The case is BP Exploration & Production Inc. v. Lake Eugenie Land & Development, Inc. -- you can find the documents on SCOTUSBLOG.

BP's basic argument is that the settlement approved by Judge Barbier in the mass tort class action against it was ultra vires because it contemplated giving money to people who were, according to BP, not injured.  The plaintiffs respond that BP is just trying to overturn a settlement it championed through the backdoor now that its unhappy with the deal.

One of the most interesting briefs filed in this dispute is from Kenneth Feinberg, who oversaw both the 9/11 Victims Compensation Fund and the Gulf Coast Claims Facility.
The latter was the entity that settled claims arising out of the Deepwater Horizon oil spill immediately after it happened.

Feinberg is a world class mediator and one of the most prominent figures in the mass tort world.   The class action settlement that BP is now disputing is the successor to the Gulf Coast Claims Facility, which he headed.   What the class action did that the Gulf Coast Claims Facility could not do is give BP global peace. In other words, all civil claims against BP arising out of the oil spill are precluded by that class action settlement.
Feinberg's brief asks the Supreme Court to grant cert.  The argument is basically the following: claim facilities like the ones he ran apply a causation requirement that parallels that of the tort system. But, he argues, the settlement agreed to by BP does not include as strong a causation requirement, and this threatens the possibility of future compensation funds to solve mass torts. The brief explains:

..the Fifth Circuit's decisions in this case affecting the causation standard, if permitted to stand, threaten to make these sorely needed alternatives to mass tort litigation unlikely to be replicated.  Future funds would either adopt the Fifth Circuit's new standard, thereby threatening to overwhelm the claims process with spurious claims, or continue to require causation, thereby channeling claimants toward litigation where the burden of proof is lower. (Feinberg petition at 6).
This argument seems to me to be just wrong.  The settlement imposed a looser causation requirement than tort law requires.  But that causation requirement was agreed to in order for claimants collect under the settlement; it is not the causation requirement of the substantive law. In the future, if a defendant perferred to create a settlement fund of the Feinberg-ian variety, they could do so and rest "easy" that the causation requirement of the substantive law remains as it always was. (Whether the requirement of specific causation is the best requirement from a normative point of view in mass tort litigation I leave to another day - AL)."
read more at link above

The three-way Israeli-Palestinian impasse // Hussein Ibish

Palestinian women, one holding up the national flag, push against a metal gate part of the controversial separation barrier being constructed by Israel. (AFP/Abbas Momani)
Palestinian woman at the separation barrier
The three-way Israeli-Palestinian impasse
by Hussein Ibish
"The Palestinian groups are simply too divided to meaningfully reunify under current circumstances. Each of them faces a dead-end for their policies, and no notion of what a good alternative would be.
Yet Israel, too, is in a dead end of its own. It's addicted to the status quo, which is unsustainable and, eventually, will almost certainly lead to another brutal confrontation. Israel has no idea what to do with the millions of Palestinians that live under its rule.
And those Palestinians don't know what to do to get rid of Israel's rule. The three-way standoff is unprecedented and exceptionally dangerous.   It may be the broader regional changes are required to resolve the conflict. But that really means that Israelis and Palestinians have proven utterly incapable of resolving it themselves, including with the help of the United States. What those regional changes might be, moreover, is itself a source of potential alarm.
With all three of the principal actors in the Israeli-Palestinian conflict stuck in their own traps and unable to see a way forward, they have essentially lost agency and left themselves at the mercy of events they do not, and cannot, control."
for the development of the argument click the link above
'via Blog this'

One chart tells the story on the market for law teachers

And it's a marker for enrollments and applications, too.
The AAL is the Association of American Law Schools and the FRC is its annual Faculty Recruitment Conference better known as the "meat market".
Schools at FRC.20141016

Saturday, October 18, 2014

Synod a win for Francis and for openness | National Catholic Reporter


Francis, the Jesuit pope, yesterday warned the hardliners against "turning bread into stone and hurling it at the sinners".  They have been doing that for a long time now.  Last week they pushed back hard against the reformist spirit but a debate has been opened that will not be contained.  Though the Church's ability to restore itself is not assured,  the right wing is on the defensive. - gwc

Synod a win for Francis and for openness | National Catholic Reporter
by Thomas Reese, S.J.
 "As people analyze and debate the final relatio or report from the synod on the family, there is a danger of missing the forest for the trees. It is true, the welcoming language toward gays was dialed back from what was expressed in the October 13 draft, and Communion has not yet been granted to divorced and remarried Catholics.
But while we are spilling a lot of ink (or electrons) comparing the final report with the earlier draft, let's not forget the big picture: The synod was a victory for openness and discussion in the church and the final document is an invitation for everyone in the church to join that discussion. This is exactly what Pope Francis wanted.
 The bishops as pastors faced a fundamental conflict: How to have the church be a loving mother while at the same time being a clear teacher. Every parent can relate to that problem. True, there were some ideological traditionalists who did not want any change. Those the pope referred to in his final address as zealous traditionalists or intellectuals who have "certitude of what we know and not of what we still need to learn and to achieve."
But most of the bishops are pastors who worry that if they appear too welcoming or accommodating then people will think that all sexual unions are equal and there is no reason to get married in the church. These bishops simply need more time to figure out how to be a loving parent and a clear teacher. For too many years they only worried about being clear"
read more at link above

'via Blog this'

Supreme Court allows Texas Voter ID Law to go into effect



Federal District Court Judge Nelva G. Ramos, in a comprehensive opinion, found that the burdens of getting a photo ID as required by Texas law violated not only equal protection under the 14th but also the 24th Amendment to the Constitution which bans poll taxes. The court held that "every form of SB 14-qualified ID available to the general public is issued at a cost".The Texas Legislature, motivated by fears of the emerging minority vote, intentionally sought to reduce their votes.  The Fifth Circuit - probably the most conservative in the country - stayed the District Court's injunction against the Texas voter ID law.  Today the U.S. Supreme Court over dissent let the Circuit stay stand.  - gwc
The Supreme Court won’t interrupt Texas voter ID law : SCOTUSblog
by Lyle Denniston
 "The Court won’t interrupt Texas voter ID law In a stinging defeat for the Obama administration and a number of civil rights groups in a major test case on voters’ rights, a divided Supreme Court told the state of Texas early Saturday morning that it may enforce its strict voter ID law for this year’s general election, with early voting starting next Monday.  Three Justices dissented from the ruling, which was released a few minutes after 5 a.m. following a seemingly lengthy study. [Order and dissent]
 This apparently was the first time since 1982 that the Court has allowed a law restricting voters’ rights to be enforced after a federal court had ruled it to be unconstitutional because it intentionally discriminated against minorities.   A U.S. District Court judge in Corpus Christi struck down the ID law last week after a nine-day trial, but it now awaits review by the U.S. Court of Appeals for the Fifth Circuit, which temporarily blocked the trial judge’s ruling.
 The Justice Department has indicated that the case is likely to return to the Supreme Court after the appeals court rules.  Neither the Fifth Circuit’s action so far nor the Supreme Court’s Saturday order dealt with the issue of the law’s constitutionality.  The ultimate validity of the law, described by Saturday’s dissenters as “the strictest regime in the country,” probably depends upon Supreme Court review. The Saturday order, for which a number of news organizations had kept a vigil through the night in anticipation of its release, did not disclose how six of the Justices had voted.
But, because it would have taken the votes of at least five to have reached the result, it was clear that the order had majority support.   The majority gave no explanation for its action. Justice Ruth Bader Ginsburg wrote a dissenting opinion of more than six pages, joined by Justices Elena Kagan and Sonia Sotomayor.

The opinion, though written mostly in even tones, in substance was quite critical of the law, of Texas’s handling of the controversy over the law and its history of racial discrimination, and of the Fifth Circuit for clearing the way for the law to be used. Much of the Ginsburg opinion closely tracked the arguments that the Corpus Christi judge had enlisted in finding the law to be the result of intentional discrimination, a violation of the Voting Rights Act of 1965, and an unconstitutional poll tax in violation of the Twenty-Fourth Amendment because of the fees required to get a valid ID.
 “The greatest threat to public confidence in elections in this case,” Ginsburg wrote, “is the prospect of enforcing a purposefully discriminatory law, one that likely imposes an unconstitutional poll tax and risks denying the right to vote to hundreds of thousands of eligible voters.”"...........
keep reading at link above

Friday, October 17, 2014

New Jersey Supreme Court compels disclaimer by lawyers citing judges' praise

“The inescapable conclusion is . . . that
plaintiffs achieved a spectacular result when the
file was in the hands of Mr. Dwyer. . . . Mr.
Dwyer was a fierce, if sometimes not
disinterested advocate for his clients, and
through an offensive and defensive motion
practice and through other discovery methods
molded the case to the point where it could be
successfully resolved.”
---Hon. William L. Wertheimer, J.S.C.

New Jersey attorneys like Andrew Dwyer - who want to advertise laudatory remarks by judges must now print a disclaimer.  Dwyer successfully challenged the New Jersey Supreme Court's advertising strictures which required the advrtisement to include the complete text of any ruling the lawyer wants to use for promotional purposes.  The Third Circuit held that the Court's rule was too onerous.  But the Circuit left some wiggle room - allowing for a disclaimer.  The state high court has now spoken.  Such a statement as Dwyer wants to use "must be prominently displayed in proximity to such quotation or excerpt: `This comment, made by a judge in a particular case, is not an endorsement of my legal skill or ability.'"  Attorney Advertising Guideline 3, October 17, 2014