Saturday, November 22, 2014

Pennsylvania Rejects Product Liability restatement TortsProf Blog

TortsProf Blog: "On Wednesday, the Pennsylvania Supreme Court, 4-2, in Tincher v. Omega Flex, Inc. decided to continue using the Restatement (Second) of Torts for products liability cases.  

Some highlights: 
" Having considered the common law of Pennsylvania, the provenance of the strict product liability cause of action, the interests and the policy which the strict liability cause of action vindicates, and alternative standards of proof utilized in sister jurisdictions, we conclude that a plaintiff pursuing a cause upon a theory of strict liability in tort must prove that the product is in a “defective condition.” 
The plaintiff may prove defective condition by showing either that 
(1) the danger is unknowable and unacceptable to the average or ordinary consumer, or that 
(2) a reasonable person would conclude that the probability and seriousness of harm caused by the product outweigh the burden or costs of taking precautions. 
The burden of production and persuasion is by a preponderance of the evidence. Whether a product is in a defective condition is a question of fact ordinarily submitted for determination to the finder of fact; the question is removed from the jury’s consideration only where it is clear that reasonable minds could not differ on the issue. 
Thus, the trial court is relegated to its traditional role of determining issues of law, e.g., on dispositive motions, and articulating the law for the jury, premised upon the governing legal theory, the facts adduced at trial and relevant advocacy by the parties. 
 To the extent relevant here, we decline to adopt the Restatement (Third) of Torts: Products Liability §§ 1 et seq.,albeit appreciation of certain principles contained in that Restatement has certainly informed our consideration of the proper approach to strict liability in Pennsylvania in the post-Azzarello paradigm." 
 In a Concurring and Dissenting Opinion Justice Saylor lamented the embrace of a consumer expectations test.
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FSU Gunman Heard Voices, Thought He Was Being Watched By Gov't

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outside the library at Florida State University
The Supreme Court sanctioned Second Amendmentista gun rights view by sanctifying "self defense" for which personal guns are rarely used opens the door for madmen, the angry, and the malevolent to use guns.  The very ubiquity of guns supports the idea that we need to be armed.
But when we see how trained policemen use guns in such dubious ways it highlights why ordinary citizens should not be armed.  Do you really believe that Michael Brown was going to kill the policeman in Ferguson, Missouri?  That Trayvon Martin was a threat to George Zimmerman whose subsequent behaviour makes clear that he is a hothead? - gwc
FSU Gunman Heard Voices, Thought He Was Being Watched By Gov't:
 "TALLAHASSEE, Fla. (AP) — A man who shot three people at a Florida State University library complained to police and property managers in New Mexico that cameras were watching him in his apartment and that he heard voices talking about and laughing at him, according to police reports released Friday. 

Myron May walked into the Las Cruces Police Department in September to report he was almost certain there were cameras installed in his apartment and that he could hear voices commenting on his activities, a police report said. For instance, May told an officer, after a bubble bath he began applying lotion to his body and heard voices that said, "Did you see that? He never puts lotion on." 

May, a 2005 Florida State graduate, returned to the school early Thursday and shot two students and a library worker before reloading his semi-automatic pistol. Police responded within two minutes and fired off a barrage of bullets that killed him. Videos and a journal obtained by police indicate he thought he was being watched and targeted by the government."

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A Push for Legal Aid in Civil Cases Finds Its Advocates - NYTimes.com

The Artigas family was facing eviction because they had brought their  granddaughter - aged 12 -  into their home - an illegal tenancy the landlord said.  The child's mother had died in an auto accident.  They couldn't afford a lawyer.
A Push for Legal Aid in Civil Cases Finds Its Advocates - NYTimes.com

But the Artigas were lucky. They traveled to the nearby county courthouse and joined the tense line that gathers most mornings outside the Eviction Assistance Center, a legal aid office in the same building as the housing court.
Established in 2011, the center is part of an experiment by the California courts on the benefits of providing more lawyers and legal advice to low-income people in civil cases such as child custody, protective orders against abusers, guardianship and, most commonly, evictions.
“We’re trying to level the playing field,” said Neal S. Dudovitz, the executive director of Neighborhood Legal Services of Los Angeles County, a group that manages the eviction center in the downtown courthouse. With funds from the Shriver project, as the experiment is known, supporting about 16 lawyers from four legal aid groups, the center is providing full or partial assistance to one-third of the 15,000 tenants who face evictions each year in this courthouse alone.
The California initiative and similar projects in New York, Massachusetts and elsewhere aim not only to help more needy clients but also to improve guidelines for the unavoidable and often painful legal triage: In a sea of unmet needs, who most needs a lawyer, who can do with some “self-help” direction? What happens to those who must be turned away?
The projects also hope to show that filling more of the civil “justice gap,” as it is known, can bring net financial gains for society.

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Friday, November 21, 2014

How did life on earth begin? Brits vs. Americans - survey



Great Britain - blue  Americans - yellow

On immigration, a tale of two presidents - CNN.com

On immigration, a tale of two presidents - CNN.com: "Washington (CNN) -- When George W. Bush couldn't get an immigration overhaul though the Senate, he gave up. When Barack Obama couldn't get a bill through the House, he changed the rules. Rewriting the immigration system was at the core of Bush's "compassionate conservatism" political brand and was dear to his heart. "It didn't work," a deflated Bush said on a June day seven years ago when the comprehensive reform effort finally died on Capitol Hill. Obama: We were strangers once too Obama: We'll deport felons, not families Past presidents' use of executive power GOP: Obama will regret immigration order 'DREAMer' reacts to Obama announcement Faced with failure, he asked his team if he could reshape the immigration system with his own executive power, but they concluded he couldn't. So Bush -- a president who fought the war on terror with an expansive interpretation of executive power -- moved on to other things for his last 18 months in office. Obama refuses to accept the same fate. READ: Obama: 'You can come out of the shadows' When immigration reform died in Congress this year, Obama, like Bush, asked his lawyers if he could change the system on his own. This White House team came to the opposite conclusion. So, more than 500 days since the Senate passed a bipartisan immigration bill, Obama unveiled his plan to go it alone."

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Investigative Report on the Terrorist Attacks on U.S. Facilities in Benghazi, Libya, September 11-12, 2012 | The Permanent Select Committee on Intelligence


Investigative Report on the Terrorist Attacks on U.S. Facilities in Benghazi, Libya, September 11-12, 2012 | The Permanent Select Committee on Intelligence
After two years of hysterical hype on the right about the assault on the American Mission and CIA facility in Benghazi, Libya, the House Committee has issued its final word:
"This report, and the nearly two years of intensive investigation it reflects, is meant to serve as the definitive House statement on the Intelligence community's activities before, during, and after the tragic events that caused the deaths of four brave Americans."
Their finding?  Absolutely no wrongdoing, no cover-up, no inadequate security, just a surprise attack that overwhelmed what appeared to have been adequate security measures. 

I suppose we'll wait a long while for an apology from Fox News. - gwc

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Obama's Masterful Immigration Speech - Mirror of Justice

Obama's Speech - masterful  -Mirror of Justice:
By Greg Sisk (University of St. Thomas School of Law)
You shall not oppress or afflict a resident alien, for you were once aliens residing in the land of Egypt. (New American Bible, Exodus 22:20)
As anyone who has visited the Mirror of Justice knows, my political affiliation is Republican, which I believe is consistent with my Catholic values.  But when the two conflict, the principles underlying Catholic teaching must take priority.
So let me give credit where credit is due:  President Obama's speech last night was masterful.
I am not saying that I agree with the wisdom of his exercise of executive authority on this matter.  Nor do I mean here to come down on one or the other side of the debate on the legality of his executive order. But...especially to my fellow Republicans who are understandably dubious about President Obama's policies and motivations, don't take my word for it.  Invest the very few minutes necessary to listen to the speech in its entirety and do so with an open heart before making a judgment.
click on the headline for Sisk's full post
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Increase in Ethics Compliance: ABA Guidance for Supervisory Prosecutors | Legal Ethics in Motion

Increase in Ethics Compliance: ABA Guidance for Supervisory Prosecutors | Legal Ethics in Motion:

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Anyone who thinks the legal arguments behind Obama’s immigration order are radical hasn’t read them yet.

We are about to witness one of the great tsunamis of uninformed ranting and raving about President Obama's immigration directives. Here are the basic legal principles and an analysis by a former Solicitor General of the United States. - gwc

6 U.S. Code 202 Homeland Security
The Secretary, acting through the Under Secretary for Border and Transportation Security, shall be responsible for the following:

(5) Establishing national immigration enforcement policies and priorities.

Anyone who thinks the legal arguments behind Obama’s immigration order are radical hasn’t read them yet. Slate Magazine

by Walter Dellinger 
(Dellinger was Solicitor General of the United States in the Clinton Administration)
"The idea that the immigration plan just announced by President Obama is a lawless power grab is absurd. As the Justice Department legal analysis that was just released amply demonstrates, much of the advance criticism of the president’s action has been uninformed and unwarranted. The opinion is well-reasoned and at times even conservative. 
The president is not acting unilaterally, but pursuant to his statutory authority. Wide discretion over deportation priorities has long been conferred on the executive branch by Congress, and it is being exercised in this case consistent with policies such as family unification that have been endorsed by Congress. 
Even though the action is breathtaking in scope, there is nothing legally remarkable about what the administration is doing, or the legal analysis supporting it. The announced “deferred action” provides temporary administrative relief from deportation for aliens who are the parents of citizens, or the parents of lawful permanent residents. “Deferred action” is an exercise of discretion in which officials may temporarily defer the removal of an alien. 
The grant of deferred action in this case will remain in place for three years, is subject to renewal, and can be terminated at any time at the discretion of the Department of Homeland Security. As Eric Posner, who served in the Office of Legal Counsel under the first President Bush, notes, the president “is just doing what countless Congresses have wanted him to do”—setting priorities for deportation enforcement. 
 Let’s be clear about what the administration has not done in this opinion. No one has been granted “amnesty,” either literally or functionally. And no precedent has been set for this or any future president to act unilaterally in disregard of acts of Congress. On the contrary, the legal opinion rejects a second proposed exercise of discretion—deferring deportation of the parents of “Dreamers”—that Justice concluded cannot be said to carry out priorities established by Congress. "

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Thursday, November 20, 2014

Eric Schnapper on oral argument

The ACA and the white working class | xpostfactoid

"Welfare" is still the issue that drives a wedge between the Democratic party and the white working class. - 
The ACA and the white working class | xpostfactoid:\

Barack Obama (2008):
"Most working- and middle-class white Americans don't feel that they have been particularly privileged by their race. Their experience is the immigrant experience - as far as they're concerned, no one's handed them anything, they've built it from scratch. They've worked hard all their lives, many times only to see their jobs shipped overseas or their pension dumped after a lifetime of labor. They are anxious about their futures, and feel their dreams slipping away; in an era of stagnant wages and global competition, opportunity comes to be seen as a zero sum game, in which your dreams come at my expense. So when they are told to bus their children to a school across town; when they hear that an African American is getting an advantage in landing a good job or a spot in a good college because of an injustice that they themselves never committed; when they're told that their fears about crime in urban neighborhoods are somehow prejudiced, resentment builds over time.

Like the anger within the black community, these resentments aren't always expressed in polite company. But they have helped shape the political landscape for at least a generation. Anger over welfare and affirmative action helped forge the Reagan Coalition. Politicians routinely exploited fears of crime for their own electoral ends. Talk show hosts and conservative commentators built entire careers unmasking bogus claims of racism while dismissing legitimate discussions of racial injustice and inequality as mere political correctness or reverse racism.

Just as black anger often proved counterproductive, so have these white resentments distracted attention from the real culprits of the middle class squeeze - a corporate culture rife with inside dealing, questionable accounting practices, and short-term greed; a Washington dominated by lobbyists and special interests; economic policies that favor the few over the many. And yet, to wish away the resentments of white Americans, to label them as misguided or even racist, without recognizing they are grounded in legitimate concerns - this too widens the racial divide, and blocks the path to understanding.  "
More broadly, Democrats have continuously struggled with the tension between the policy imperative to fight poverty and the political imperative (also a policy imperative) to help the middle class. That's why Obama has adhered to his own taboo against raising taxes on the middle class, broadly defined to the point of absurdity (up to a household income of $250k).

Notwithstanding that the ACA does not directly tax individuals in the lower 98%, however, Gardner's stat shot illustrates that there's a sliver of truth in Jonathan Gruber's allegations of stealth in the ACA's construction. Of course there is. There's stealth with regard to the non-headline consequences of every piece of legislation. The law primarily helps the lower 20-25% -- and the middle class to the extent that an awful lot of Americans temporarily cycle into the lower 20% at some period in their lives. (The Aaron/Burtless paper does not attempt to account for the possible effects of the ACA slowing healthcare inflation. The slowdown in healthcare spending growth that we are currently experiencing, for whatever cause, could if sustained free up tremendous resources for public investments of every kind.) 

The ACA is not "Obamacare," it's Democratcare -- a consensus policy of the party as a whole, the most sustained expression of how Democrats forge policy in the post-Reagan political environment.  If its benefits are really that concentrated in the lower 20%, that does constitute a political challenge.

- Andrew Sprung
November 20, 2014

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Bishops support executive action on immigration | National Catholic Reporter

Bishops support executive action on immigration | National Catholic Reporter
by Thomas Reese, S.J.  |  Nov. 14, 2014 
 In a little noted letter, two bishops chairing committees of the U.S. Conference of Catholic Bishops have put the Catholic bishops on record supporting executive action on immigration. The letter places the bishops on President Barack Obama's side in his dispute with congressional Republicans, who are opposed to any executive action on immigration. 
The letter, sent on Sept. 9 with little fanfare, was addressed to Jeh Johnson, secretary of the Department of Homeland Security, with copies of the letter going to Dennis McDonough, chief of staff to the president, and Cecilia Munoz, director of the White House Domestic Policy Council. The letter was signed by Bishop Eusebio Elizondo, chair of the Committee on Migration, and Bishop Kevin Vann, chair of the Catholic Legal Immigration Network. 
The conference issued no press release to publicize the letter and I cannot find it on the USCCB website. The letter asked for executive action "to protect undocumented individuals and families as soon as possible, within the limits of your executive authority." "With immigration reform legislation stalled in Congress," the letter said, "our nation can no longer wait to end the suffering of family separation caused by our broken immigration system." 
 The Republican leadership in Congress has said any executive action by the president on immigration would poison future cooperation on any topic. The bishops urge that some major problems on immigration be dealt with through by executive action. These would not be considered minor items by either the administration or Congress."

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Tuesday, November 18, 2014

The 21st Century Lawyer’s Evolving Ethical Duty of Competence | The Center for Professional Responsibility

The Twenty-First Century Lawyer’s Evolving Ethical Duty of Competence | The Center for Professional Responsibility
By Andrew Perlman
(Andrew Perlman is a professor at Suffolk University Law School, where he is the Director of the Institute on Law Practice Technology and Innovation. He was the Chief Reporter of the ABA Commission on Ethics 20/20 and is the Vice Chair of the newly created ABA Commission on the Future of Legal Services. )

The Duty of Competence in a Digital Age
The ABA Commission on Ethics 20/20 was created in 2009 to study how the Model Rules of Professional Conduct should be updated in light of globalization and changes in technology. The resulting amendments addressed (among other subjects) a lawyer’s duty of confidentiality in a digital age, numerous issues related to the use of Internet-based client development tools, the ethics of outsourcing, the facilitation of jurisdictional mobility for both US and foreign lawyers, and the scope of the duty of confidentiality when changing firms.
One overarching theme of the Commission’s work was that twenty-first century lawyers have a heightened duty to keep up with technology. An amendment to Model Rule 1.1 (Duty of Competence), Comment [8] captured the new reality (italicized language is new):
To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.
The Model Rules had not previously mentioned technology, and the Commission concluded that the Rules should reflect technology’s growing importance to the delivery of legal and law-related services.
New Competencies for the Twenty-First Century Lawyer
Cybersecurity
Electronic Discovery
In New York, e-discovery competence is now mandated in section 202.12(b) of the Uniform Rules for the Supreme and County Courts:
Where a case is reasonably likely to include electronic discovery, counsel shall, prior to the preliminary conference, confer with regard to any anticipated electronic discovery issues. Further, counsel for all parties who appear at the preliminary conference must be sufficiently versed in matters relating to their clients’ technological systems to discuss competently all issues relating to electronic discovery: counsel may bring a client representative or outside expert to assist in such e-discovery discussions.6
In California, a recently released draft of an ethics opinion covers similar ground and once again emphasizes the importance of e-discovery competence:
Attorney competence related to litigation generally requires, at a minimum, a basic understanding of, and facility with, issues relating to e-discovery, i.e., the discovery of electronically stored information (“ESI”). On a case-by-case basis, the duty of competence may require a higher level of technical knowledge and ability, depending on the e-discovery issues involved in a given matter and the nature of the ESI involved. Such competency requirements may render an otherwise highly experienced attorney not competent to handle certain litigation matters involving ESI.7
Competence is not the only ethical duty at stake. The California draft opinion (like the Massachusetts disciplinary case) observes that the improper handling of e-discovery “can also result, in certain circumstances, in ethical violations of an attorney’s duty of confidentiality, the duty of candor, and/or the ethical duty not to suppress evidence.”8 The opinion concludes that, if lawyers want to handle matters involving e-discovery and do not have the requisite competence to do so, they can either “(1) acquire sufficient learning and skill before performance is required; [or] (2) associate with or consult technical consultants or competent counsel. . . .” 
Related issues arise when lawyers advise their clients about social media content that might be discoverable. Recent opinions suggest that lawyers must competently advise clients about this content, such as whether they can change their privacy settings or remove posts, while avoiding any advice that might result in the spoliation of evidence.10 The bottom line is that e-discovery is a new and increasingly essential competency, and unless litigators understand it or associate with those who do, they risk court sanctions and discipline.
Internet-Based Investigations
Internet-Based Marketing
Leveraging New and Established Legal Technology/Innovation
Conclusion

The seemingly minor change to a Comment to Rule 1.1 captures an important shift in thinking about competent twenty-first century lawyering. Technology is playing an ever more important role, and lawyers who fail to keep abreast of new developments face a heightened risk of discipline or malpractice as well as formidable new challenges in an increasingly crowded and competitive legal marketplace.

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Cause for despair: Palestinian attack on Jerusalem synagogue

We have, of course, seen the savagery of tribal warfare before.  Car bombs in Iraq, schools filled with refugees bombed in Gaza.  Whether the IDF attacks intentionally targeted civilians or were merely reckless the resulting rage is the same.  Then this attack on a synagogue, on civilians, celebrated by Palestinians in the street as in the picture below and by the PFLP.  All the wrong conclusions are being drawn by both sides, Palestinian and Israelis who are sure to reply disproportionately, if with understandable rage. - gwc

Embedded image permalink

NACDL: Widespread failure of `Brady rule' disclosures in criminal cases

NACDL - Material Indifference - Brady rule violations widespread
Washington, DC (Nov. 17, 2014) – 
Today, at the National Press Club in Washington, DC, NACDL is officially releasing its latest report, Material Indifference: How Courts Are Impeding Fair Disclosure in Criminal Cases, a major study produced jointly with the VERITAS Initiative at Santa Clara Law School. 
Today's event will feature comments by NACDL President Theodore Simon, and special guests David W. Ogden, former Deputy Attorney General who is now a partner at the WilmerHale firm, and the Hon. Alex Kozinski, Chief Judge of the Ninth Circuit Court of Appeals. 
The report's co-authors – VERITAS Initiative Director and Professor Kathleen "Cookie" Ridolfi, NACDL White Collar Crime Policy Counsel Tiffany M. Joslyn, and VERITAS Initiative Pro Bono Research Attorney Todd H. Fries – will also be discussing their findings and recommendations. NACDL Executive Director Norman Reimer will moderate the discussion.
"This groundbreaking study documents one of the major problems facing the nation's criminal justice system today: the failure to ensure full, fair and timely disclosure of information favorable to an accused person in a criminal action. It is a significant step towards achieving the vital reforms necessary to guarantee a fair trial for every accused person," NACDL President Theodore Simon said.
Over 50 years ago, in Brady v. Maryland, the Supreme Court declared that failure to disclose favorable information violates the constitution when that information is material. This guarantee, however, is frequently unmet. In courtrooms across the nation, accused persons are convicted without ever having seen information that was favorable to their defense. The frequency with which this occurs and the role it plays in wrongful convictions prompted NACDL and the VERITAS Initiative to undertake an unprecedented study of Brady claims litigated in federal courts over a five-year period. The study asked: What role does judicial review play in the disclosure of favorable information to accused? The results revealed a troubling answer—the judiciary is impeding fair disclosure in criminal cases and, in doing so, encouraging prosecutors to disclose as little favorable information as possible.
The study's findings are extensive and dramatic including, for example:
  • The materiality standard produces arbitrary results and overwhelmingly favors the prosecution. Indeed, in those decisions where the prosecution failed to disclose favorable information, it still won 86% of the time, with the court concluding that the information was not material.
  • Courts almost never find Brady was violated by the late disclosure of favorable information. Of the 65 decisions that involve late disclosure of favorable information, only one resulted in a Brady violation finding.
  • Favorable information is more likely to be disclosed late or withheld entirely in death penalty decisions. Favorable information was never disclosed or disclosed late by the prosecution in 53% of decisions involving the death penalty, but only 34% of all the decisions studied.
In his dissent to the Ninth Circuit's 2013 decision denying a rehearing en banc in United States v. Olsen, Chief Judge Alex Kozinski acknowledged that "[t]here is an epidemic of Bradyviolations abroad in the land" which in his view, "[o]nly judges can put a stop to." Material Indifference: How Courts Are Impeding Fair Disclosure in Criminal Cases documents that epidemic and sets forth a prescription for how to contain and ultimately cure it. As former Deputy Attorney General David W. Ogden wrote in his foreword to this report, "judges have an indispensable role and obligation to oversee the system's guarantees of fairness and to make sure that its truth- and justice-seeking mission is fulfilled in each case."

Monday, November 17, 2014

Inequality, Unbelievably, Gets Worse - Steven Rattner NYTimes.com

"To his credit, President Obama has succeeded in keeping income disparities from growing even wider, by such measures as by forcing tax rates on the wealthiest Americans up toward fair levels." Not that he gets any credit for it from press or public. Americans - especially white Americans - stand by their FTP* policy. - gwc
Inequality, Unbelievably, Gets Worse - NYTimes.com:
by Steven Rattner

On the programmatic side, among the many meritorious aspects of the much-maligned Affordable Care Act are its redistributionist elements: higher taxes on investment income and some health care businesses are being used to provide low-cost or free health care to a projected 26 million Americans near the bottom of the income scale.

Here’s what’s rarely reported:

Before the impact of tax and spending policies is taken into account, income inequality in the United States is no worse than in most developed countries and is even a bit below levels in Britain and, by some measures, Germany.

However, once the effect of government programs is included in the calculations, the United States emerges on top of the inequality heap."That’s because our taxes, while progressive, are low by international standards and our social welfare programs — ranging from unemployment benefits to disability insurance to retirement payments — are consequently less generous. Conservatives may bemoan the size of our government; in reality, according to the Organization for Economic Cooperation and Development, total tax revenues in the United States this year will be smaller on a relative basis than those of any other member country.

To his credit, President Obama has succeeded in keeping income disparities from growing even wider, by such measures as by forcing tax rates on the wealthiest Americans up toward fair levels.

*As Mel Brooks put it in the mouths of the Roman Senators when they learned there was a budget surplus.  Asked if they should give it to the poor or "keep it for ourselves" they chanted in unison "fuck the poor".

Eric Holder on His Legacy, His Regrets, and His Feelings About the Death Penalty | The Marshall Project


Today is the first day that The Marshall Project went live.  It is an investigative journalism project led by Bill Keller, former Executive Editor of the New York Times.  Several of the pieces focus on the death penalty and inadequate lawyering. This excerpt from an interview with A.G. Eric Holder focuses on sentencing disparities and his rejection of the idea that prosecutors should routinely seek to maximize penalties.  - gwc
Eric Holder on His Legacy, His Regrets, and His Feelings About the Death Penalty | The Marshall Project
"The Marshall Project: You’ve been pretty outspoken on criminal justice issues across the board – more outspoken than your boss, actually. What would you single out as your proudest accomplishment in the area of the criminal justice system, and what would you single out as your biggest disappointment?

Holder: In January 2013 I told the people in the Justice Department after the re-election that I wanted to focus on reforming the federal criminal justice system. I made an announcement in August of that year in San Francisco, when we rolled out the Smart on Crime initiative. It was a way of breaking some really entrenched thinking and asking prosecutors, investigators, the bureaucracy – to think about how we do our jobs in a different way – to ask the question of whether excessively long prison sentences for nonviolent offenders really served any good purpose, how we used "enhancement papers"*, moving discretion to prosecutors and asking them to make individualized determinations about what they should do in cases, as opposed to have some big policy sent to them from Washington. 

[*Enhancement papers recommend a harsher sentence based on the defendant’s prior record. In 2010 Holder overturned a Bush-era policy that prosecutors should seek enhancement whenever possible.]

And I think that by and large – not without opposition, to be totally honest – the federal system has embraced that vision. And I think that we have started to see the kind of changes that I hoped we would see.And the biggest disappointment?I’m proud of the fact that – in 2010, I guess – we reduced that ratio, the "crack-powder ratio", from 100-to-1 to about 17- or 18-to-1. I’m still disappointed that, given the lack of a pharmacological distinction between crack and cocaine, the ratio is not 1-to-1. You know, it was the product of a lot of hard work that the president was intimately involved in. But I think he would agree with me that that number should be at 1-to-1. 

Crack cocaine offenders, who are disproportionately black, are subject to much more severe penalties than powder cocaine offenders, who are more likely to be white.

Q. Before the second term is over, could there be a push for a 1-to-1 ratio?

A. That is something that I know the President believes in, that I believe in. One of the things that I’d like to see happen before the end of this administration is that there would be a "drug court" in every district in this country. As I speak to my successor, the 83rd Attorney General, and as I speak to the President, I’m going to push them to make that a goal for this administration, to have a drug court in every district by the end of Barack Obama’s second term."
****
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Sunday, November 16, 2014

Death Penalty Review Reform expected from China's Supreme Court | Supreme People's Court Monitor

video interview in a death penalty appeal in China
Six years ago I participated in a death penalty conference sponsored by the College of Criminal Justice, Beijing Normal University.  We were preaching the 6th Amendment and Gideon v. Wainwright: the right to counsel and to have counsel appointed for you if you could not afford a lawyer. BNU Criminal Justice Dean Zhao Bingzhi has long advocated such reforms.  It appears he is about to prevail. - gwc
What does the 4th Plenum mean for death penalty reviews? | Supreme People's Court Monitor
by Susan Finder
In a  press report in Southern Weekend last month, the Supreme People’s Court (the Court) revealed that  an important legal reform related to death penalty reviews is forthcoming–institutionalizing legal representation in death penalty reviews.  It appears that this development has not yet been reported in the foreign press. This development, and others still in the works, are likely linked to the following provisions in the 4th Plenum Decision:
  • For appeals from dissatisfaction with effective judgments or decisions of judicial organs, gradually implement a system of lawyer representation. Bring appellants unable to hire a lawyer within the scope of legal aid.
  • Advance systemic reform in litigation with trial at the center;
  • complete effective guards against unjust, false and wrongfully decided cases.
The Southern Weekend report  was partially reported in the foreign press, thanks to a summary by the Duihua Foundation, but that report missed this important development. (A full translation of this article would be helpful to non-Chinese readers interested in this issue).
(This reform caught my attention because because I raised this issue when conducting an interview at the Supreme People’s Court in the early 1990′s, when researching my 1993 Supreme People’s Court article in the Journal of Chinese Law.)

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NJ Judiciary's Business Court Program Going Statewide | New Jersey Law Journal

After years of pressure by bar groups to establish a commercial division the New Jersey Supreme Court has taken a half step.  One or two judges in each county will be designated to handle commercial litigation (threshold $200,000) and complex commercial and construction litigation. the program is described in a Notice to the Bar released November 13, 2014. - gwc
NJ Judiciary's Business Court Program Going Statewide | New Jersey Law Journal 
by Carmen Natale
"The New Jersey judiciary will expand its nearly two-decade-old Complex Business Litigation Program statewide beginning Jan. 1, Chief Justice Stuart Rabner has announced. The program, which has been operating in Bergen and Essex counties since 1996, is designed to handle complex commercial and construction cases that have the potential for $200,000 or more in damages, Rabner said in a statement and order released on Nov. 13. 
"Litigants in these cases and the court system overall will benefit from having a core group of dedicated judges manage complex business disputes," Rabner said in his statement. "We also expect that this new approach will help to continue to develop a body of authoritative case law that will aid all parties in business litigation." 
The accompanying order says that each judge assigned to the program will be expected to issue a minimum of two written opinions every year so as to develop that body of complex business case law. Lawyers who focus in complex litigation welcome the move. "It's a good step in the right direction," said Edward Kole, who handles complex corporate and commercial litigation at Wilentz, Goldberg & Spitzer in Woodbridge, N.J."

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How Much of a Difference Did New Voting Restrictions Make in Yesterday's Close Races? | Brennan Center for Justice

How Much of a Difference Did New Voting Restrictions Make in Yesterday's Close Races? | Brennan Center for Justice
by Wendy Weiser
The Republican electoral sweep in yesterday’s elections has put an end to speculation over whether new laws making it harder to vote in 21 states would help determine control of the Senate this year. But while we can breathe a sigh of relief that the electoral outcomes won’t be mired in litigation, a quick look at the numbers shows that in several key races, the margin of victory came very close to the likely margin of disenfranchisement.

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New ABA Formal Opinion on prosecutors who allow debt collection companies to pretend the prosecutors' office backs them up

Astonishing that there should be a need for such advice.  The NJ Supreme Court Advisory Committee on Professional Ethics (on which I sit) barred "renting" letterhead by private lawyers.  But prosecutors!? - gwc
Professional Responsibility Blog: New ABA Formal Opinion on prosecutors who allow debt collection companies to pretend the prosecutors' office backs them up:
 "The ABA Standing Committee on Ethics and Professional Responsibility has issued a new Formal Opinion (No. 469).  You can read the full opinion here.  The summary speaks for itself:
A prosecutor who provides official letterhead of the prosecutor’s office to a debt collection company for use by that company to create a letter purporting to come from the prosecutor’s office that implicitly or explicitly threatens prosecution, when no lawyer from the prosecutor’s office reviews the case file to determine whether a crime has been committed and prosecution is warranted or reviews the letter to ensure it complies with the Rules of Professional Conduct, violates Model Rules 8.4(c) and 5.5(a).


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Saturday, November 15, 2014

Remembering the Jesuit Martyrs in El Salvador - 25 Years


Remembering the Jesuit Martyrs
 "In the predawn hours of Nov. 16, 1989, Father Ignacio Ellacuría and his fellow Jesuits were jarred awake by the pounding of fists and wooden clubs on the doors and windows of their residence. Outside, more than three dozen Salvadoran soldiers had surrounded the University of Central America’s (UCA) Pastoral Center, where the six priests lived. Forcing their way into the quiet residence, the soldiers dragged the Jesuits outside and ordered them to lie facedown on the ground. 
 That morning, the world awakened to news of the most gruesome attack in El Salvador since the 1980 assassination of Archbishop Oscar Romero. The six Jesuits had been executed in their front garden, while their cook Julia Elba Ramos and her 15-year-old daughter Celina—who had taken refuge at the residence after fleeing violence near their own home—had been shot to death in the bed they shared. 
 
Justice and the Jesuit Campus

In the 25 years since the murders, Jesuit institutions have kept social justice at the core of their mission. A number of national initiatives evolved in direct response to El Salvador. Two of these are the Ignatian Family Teach-In for Justice, a yearly gathering to advocate for social justice issues, and the Ignatian Solidarity Network, which promotes leadership and advocacy among students and alumni.

Individual Jesuit institutions have responded on the local level withthe same ardor. Many Jesuit schools have centers dedicated to social justice, such as Fordham’s Dorothy Day Center for Service and Justice. Grounded in the philosophy of “men and women for others,” the center connects Fordham with the local community to promote service and solidarity.

A Commitment to Justice November marks 25 years since the killings, which have become emblematic of the civil war that ravaged El Salvador in the 1980s. An estimated 75,000 Salvadorans were killed in the decade-long war between a people’s movement and a U.S.-backed military government.

Justice and the Jesuit Campus

In the 25 years since the murders, Jesuit institutions have kept social justice at the core of their mission. A number of national initiatives evolved in direct response to El Salvador. Two of these are the Ignatian Family Teach-In for Justice, a yearly gathering to advocate for social justice issues, and the Ignatian Solidarity Network, which promotes leadership and advocacy among students and alumni.
Individual Jesuit institutions have responded on the local level withthe same ardor. Many Jesuit schools have centers dedicated to social justice, such as Fordham’s Dorothy Day Center for Service and Justice. Grounded in the philosophy of “men and women for others,” the center connects Fordham with the local community to promote service and solidarity."

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Thursday, November 13, 2014

Law in the Raw - NYTimes.com

Law in the Raw - NYTimes.com
by Linda Greenhouse
Nearly a week has gone by since the Supreme Court’s unexpected decision to enlist in the latest effort to destroy the Affordable Care Act, and the shock remains unabated. “This is Bush v. Gore all over again,” one friend said as we struggled to absorb the news last Friday afternoon. “No,” I replied. “It’s worse.”
What I meant was this: In the inconclusive aftermath of the 2000 presidential election, a growing sense of urgency, even crisis, gave rise to a plausible argument that someone had better do something soon to find out who would be the next president. True, a federal statute on the books defined the “someone” as Congress, but the Bush forces got to the Supreme Court first with a case that fell within the court’s jurisdiction. The 5-to-4 decision to stop the Florida recount had the effect of calling the election for the governor of Texas, George W. Bush. I disagreed with the decision and considered the contorted way the majority deployed the Constitution’s equal-protection guarantee to be ludicrous. But in the years since, I’ve often felt like the last progressive willing to defend the court for getting involved when it did.
That’s not the case here. There was no urgency. There was no crisis of governance, not even a potential one. There is, rather, a politically manufactured argument over how to interpret several sections of the Affordable Care Act that admittedly fit awkwardly together in defining how the tax credits are supposed to work for people who buy their health insurance on the exchanges set up under the law.
Further, the case the court agreed to decide, King v. Burwell, doesn’t fit the normal criterion for Supreme Court review. There is no conflict among the federal appellate circuits. (Remember that just a month ago, the absence of a circuit conflict led the justices to decline to hear seven same-sex marriage cases?) In the King case, a three-judge panel of the United States Court of Appeals for the Fourth Circuit, in Richmond, Va., unanimously upheld the government’s position that the tax subsidy is available to those who buy insurance on the federally run exchanges that are now in operation in 36 states.
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Wednesday, November 12, 2014

The Demise of the White Democratic Voter - NYTimes.com

The Demise of the White Democratic Voter - NYTimes.com
by Thomas B. Edsall (Professor, Columbia Journalism School)

Arguably, the poor Democratic showing among whites does not represent naked race prejudice, as Obama’s election and re-election attest. But it can be seen as a reflection of substantial material interests that affect the very voters who carry greater weight in low turnout midterm Congressional elections.
Whites as a whole, who made up 75 percent of this year’s electorate, voted for Republican House candidates by a 24-point margin, 62-38, the exact same margin by which they supported Republican candidates in the 2010 midtermsIn 2006, when opposition to President George W. Bush was intense, Republicans won white voters by eight points, 52-44.
The opposition of whites to the Democratic Party is visible not only in voting behavior, but in general opposition to key Democratic policy initiatives, most tellingly in hostility toward the Affordable Care Act. A November 2013 National Journal poll found, for example, that 58 percent of whites said Obamacare would make things worse for “people like you and your family,” more than double the 25 percent that said that Obamacare would make things better.
Asked whether the Affordable Care Act would make things better or worse for the country at large, 60 percent of whites said worse and 35 percent of whites said better.
Obamacare shifts health care benefits and tax burdens fromupper-income Americans to lower-income Americans, and from largely white constituencies to beneficiaries disproportionately made up of racial and ethnic minorities. The program increases levies on the overwhelmingly white affluent by raising taxes on households making more than $250,000.
To achieve its goals, Obamacare reduces by $500 million, over 10 years, spending on Medicare, according to theMedicare board of trustees, which oversees the finances of the program. Medicare serves a population that is 77 percent white. Even as reductions in Medicare spending fall disproportionately on white voters, the savings are beingused to finance Obamacare, which includes a substantial expansion of Medicaid. Medicaid recipients are overwhelmingly poor and, in 2013, were 41 percent white and 59 percent minority.
In addition to expanding Medicaid, the overall goal of Obamacare is to provide health coverage for the uninsured, apopulation that, in 2010 when the program was enacted, was 47 percent white, and 53 percent black, Hispanic, Asian-American and other minorities.
It’s not hard to see, then, why a majority of white midterm voters withheld support from Democrats and cast their votes for Republicans.
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The Demise of the White Democratic Voter - NYTimes.com

The Demise of the White Democratic Voter - NYTimes.com:
by Thomas Edsall

...Whites as a whole, who made up 75 percent of this year’s electorate, voted for Republican House candidates by a 24-point margin, 62-38, the exact same margin by which they supported Republican candidates in the 2010 midterms. In 2006, when opposition to President George W. Bush was intense, Republicans won white voters by eight points, 52-44.
The opposition of whites to the Democratic Party is visible not only in voting behavior, but in general opposition to key Democratic policy initiatives, most tellingly in hostility toward the Affordable Care Act. A November 2013 National Journal poll found, for example, that 58 percent of whites said Obamacare would make things worse for “people like you and your family,” more than double the 25 percent that said that Obamacare would make things better.
Asked whether the Affordable Care Act would make things better or worse for the country at large, 60 percent of whites said worse and 35 percent of whites said better.
Obamacare shifts health care benefits and tax burdens fromupper-income Americans to lower-income Americans, and from largely white constituencies to beneficiaries disproportionately made up of racial and ethnic minorities. The program increases levies on the overwhelmingly white affluent by raising taxes on households making more than $250,000.
To achieve its goals, Obamacare reduces by $500 million, over 10 years, spending on Medicare, according to theMedicare board of trustees, which oversees the finances of the program. Medicare serves a population that is 77 percent white. Even as reductions in Medicare spending fall disproportionately on white voters, the savings are beingused to finance Obamacare, which includes a substantial expansion of Medicaid. Medicaid recipients are overwhelmingly poor and, in 2013, were 41 percent white and 59 percent minority.
In addition to expanding Medicaid, the overall goal of Obamacare is to provide health coverage for the uninsured, apopulation that, in 2010 when the program was enacted, was 47 percent white, and 53 percent black, Hispanic, Asian-American and other minorities.
It’s not hard to see, then, why a majority of white midterm voters withheld support from Democrats and cast their votes for Republicans.
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