Sunday, October 19, 2014

Cuba’s Impressive Role on Ebola -

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 -
 "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."

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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.

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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."

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What China Means by ‘Rule of Law’ -

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’ -
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

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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
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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

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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

How China’s Leaders Will Rule on the Law | ChinaFile

How China’s Leaders Will Rule on the Law | ChinaFile:
by Carl Minzner (Fordham Law School)
 "Last week, as the world watched the student demonstrations in Hong Kong, China’s Politburo announced the dates for the Communist Party’s annual plenary session would be from October 20-23. As in previous years, top leaders will gather in Beijing to set out a broad policy framework that will guide the work of Party and government authorities over the coming year.
This year’s theme? Ruling China according to law (依法治国yifa zhiguo). This might seem an unlikely choice given the recent trajectory of Chinese politics. At the top of the system, a politicized anti-corruption purge has roiled the ranks of the élite, toppling previously untouchable officials like former security czar Zhou Yongkang. A whiff of a cult of personality now surrounds China’s top leader, Xi Jinping, with major social science grants directed to academics who plan to study his speeches.
In society at large, as Brookings’ David Shambaugh has noted, “repression in China today is at its most severe point since the aftermath of 1989.” Mainland political dissidents have been muzzled through both formal arrests and entirely off-the-books “disappearances.” And over the past year, state authorities have increasingly resorted to televised public confessions by social media celebrities, foreign corporate investigators, and alleged terrorists—rather than statutes and trials—to send signals to society at large.
 The choice of theme for the plenum has nothing to do with implementing the rule of law as an independent check on Party power. Xi Jinping has ruled this out. Like his predecessors, he remains committed to one-party rule. He has looked at Tiananmen Square, he has looked at the Arab Spring, and he has drawn his conclusion: weaken the political control of the Communist Party and you jeopardize the entire edifice. Chinese leaders have ramped up their repression of a wide range of civil society organizations and legal activists, including figures such as Xu Zhiyong and Pu Zhiqiang.
 But while top Chinese Party leaders may not be interested in building legal institutions to limit their own power, they are interested in invoking the concept of law to pursue other ends. At least three separate, but overlapping, trends are leading Chinese authorities to emphasize law at this time. First, Xi Jinping appears to be trying to swing back towards a somewhat more institutionalized form of Party rule.
The last two years have been very disruptive to the Chinese bureaucracy. Since acceding to the top post in 2012, Xi has consolidated his power through both a sweeping anti-corruption effort that has removed many of his political rivals and a populist “mass line” campaign that has pushed cadres to go out and learn from ordinary citizens. Such efforts have shaken the Party-state apparatus. In coal-rich Shanxi, almost half of the 13-person Party provincial Standing Committee is currently under investigation for corruption. In conversations, mid-level Chinese bureaucrats report overwhelming workloads and a pervasive sense of career uncertainty as supervisors and associates are hauled before Party disciplinary inspection committees.
Cadre morale has fallen. A tough official austerity drive has meant the loss of perks such as official vehicles, housing, and the ability to give and receive luxury goods, gift cards, and even mooncakes. Perceiving official careers as carrying higher political risk and lower economic rewards, recent college graduates are shunning the civil service examination for the first time in decades. In Zhejiang province, the number of applicants declined 37% in the past year, from 360,000 in 2013 to 227,000 in 2014. Declines in other provinces range between 10 and 30%."×××××××read more at link above

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Thursday, October 16, 2014


Do you have a stenographer?  I was often asked by older practitioners when I started out.  And I did.  Legal secretaries took "shorthand" when you "dictated", or used a "stenotype" machine.  I had both.  Now we have neither.  The tape recorder intervened on the way to pc's and email which also wiped out carbon paper, and the convenient "carbon sets".  - gwc

Debating God: Notes on an Unanswered Question -

Notre Dame philosopher Gary Gutting is my kind of Catholic.  He interviews himself. - gwc
Debating God: Notes on an Unanswered Question -

G.G.: So what you’re saying is that, in the face of atheist criticisms, religious belief can still be rational, but only if it gives up thinking of the existence of God as a scientific hypothesis and admits that many of its claims are fundamentally mysterious. Doesn’t that in fact undermine most of traditional religious belief?
g.g.: It’s more accurate to say that it undermines a strong tendency of religion — at least in its major monotheistic forms — to misunderstand its own basic message. There’s nothing in the Bible that presents God as a well-confirmed scientific hypothesis, and there’s a great deal that emphasizes that the truths of religion are beyond human comprehension. In spite of this, believers too often play the double game of insisting on God’s transcendence and mystery to meet rational objections, but then acting as if they’d justified a straightforward literal understanding of their beliefs.
G.G.: So are you what we might call a “mysterian theist”?
g.g.: No, I’m an agnostic. I don’t find it reasonable to accept or reject a transcendent God, so I withhold judgment.
G.G..: How can you be an agnostic and still claim to be a Catholic?
g.g.: Because, despite my agnosticism, I still think it’s worth pursuing the question of whether God exists, and for me the Catholic intellectual and cultural tradition has great value in that pursuit.
G.G.: Still, I don’t see how you can find a place in a church that claims to be the custodian of a divine revelation, when you don’t believe in that revelation.
g.g.: The fundamental revelation is the moral ideal expressed in the biblical account of Christ’s life. Whether or not that account is historically accurate, the New Testament Christ remains an exemplar of an impressive ideal. Engagement with the practices (ethical and liturgical) inspired by that ideal is the only requirement for being a Catholic. Beyond that, historical narratives and theological doctrines can at least function as useful means of understanding, even for those who aren’t prepared to say that they are true in any literal sense. Some believers may have experiences (or even arguments) that have convinced them that these doctrines are true. But religions — even Catholicism — should have room for those who don’t see it that way.
G.G.: So it seems that you agree with most of your interviewees — believer and nonbelievers — that practice is more important than doctrine.
g.g.: Yes, and I agree with Kitcher that the greatest obstacle facing atheism is its lack of the strong communal practices that characterize religions. People need to believe something that provides a satisfying a way of living their lives, and most people need to find this in a community. So far atheism has produced nothing like the extensive and deep-rooted communities of belief that religion has.
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Big Pharma: the Unseemly First Amendment Champion, Part One

Balkinization: Big Pharma: the Unseemly First Amendment Champion, Part One"
by Jane Bambauer (University of Arizona Law School)
 The pharmaceutical industry is enjoying the sort of influence over First Amendment jurisprudence once reserved for the likes of Hustler Magazine. In Sorrell v. IMS, the Supreme Court protected the transfer and use of prescription data for pharmaceutical detailing (that is, the in-person sales pitches that pharmaceutical reps make to doctors.) 
A more significant free speech victory for Big Pharma was delivered by the Second Circuit in United States v. Caronia, which overturned the conviction of a pharmaceutical detailer for off-label marketing of a drug. Public health experts and constitutional law scholars are intensely critical of these developments, arguing that they are perversions of the First Amendment to favor large corporations at the expense of consumer protection. For reasons I sketch here, their reactions overstate the conflict between Big Pharma and public health and underestimate the First Amendment interests at stake."
Placebo-controlled double-blind experiments might be an appropriate standard for a scientific journal, but those journals have the luxury of avoiding the constant stream of hard decisions that every doctor and consumer must make. At a critical point of deliberation, bad science on a drug’s risks and benefitscould be better than no science at all.

Moreover, the agencies also risk training the public to think that scientific conventions are tantamount to “truth” which is, ironically, antithetical to the scientific process. Science is messy, tentative, and error-prone. We can get a sense of this just by considering the (arbitrarily chosen) 5% standard for statistical significance. A result that is statistically significant at the 5% level deserves a lot of confidence when it is viewed alone. However, as soon as we pull together fifteen statistically significant findings, the chance that at least one of the findings is actually random noise exceeds 50%. If we pull together a hundred studies, which is often what our body of public health knowledge consists of, the chance that every statement is true falls to under 1%. Add to this the fact that most public health research cannot be replicated and we get a humbling picture. Even when evidence-based claims live up to the current standards of scientific rigor, we are fumbling in the dark. (I don’t mean to be too pessimistic here; observational studies and controlled experiments are the only thing that takes us from wrong to veryslightly less wrong, and that's a good thing.)

The FDA’s regulations rely on an assumption that less-than-rigorous scientific statements in favor of a drug’s adoption on balance not only alter doctor behavior, but also lead to patient harm. This assumption may be correct, but at present it lacks a basis in evidence. Profits and good advice are not always at odds. When they pull in the same direction, skepticism and regulation can get in the way of health improvements. For example, there are some drugs, such as tPA for the treatment of stroke, that are so effective that the lag among ER doctors to use it is simply tragic. The public health community has not been able to show that pharmaceutical detailing causes more harm than good, which is why the health-related justifications in Sorrell were unconvincing. In the absence of evidence that the free exchange of information causes harm, the FDA’s approach is in trouble. It flies in the teeth of the Brandeisian assumption that bad information is best countered by more information rather than censorship.

I suspect that, in the wake of Caronia, Sorrell, and other cases, courts will apply intermediate scrutiny to any restrictions on commercial speech that is not provably false. Courts will not defer to agencies on the definition of misleading, so if an agency regulates speech that is technically true but arguably misleading and distortive, it will have to come to court with evidence of the potential for both misinterpretation and consequent harm.

This shift will not be a welcome one to critics who think that the commercial speech doctrine waswrongheaded from the start. But these critics tend to undervalue consumer and listener interests in advertising, and to overlook other, better, alternatives for promoting good research. (To be continued in Part Two.)

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A Peek Under the Rock of Football - George Vecsey

A Peek Under the Rock of Football - George Vecsey: "t all comes back to me now – the disconnect I felt whenever I wandered into big-time college football during my years as sports columnist.  I could deal with the machinations of professional sports. They were who they were -- steroid frolics, owner collusion, ignorance of brain damage. But big-time basketball and football gave me the creeps even worse because they existed under the title of “higher education.”
 It comes back to me when I read terrific articles like the one in the Times on Sunday about how the entire power structure of Florida State University and the tolerant community fell into line to produce a football power every weekend, to the point of overlooking complaints about prominent players.
 I visited Florida State when I was a columnist. I once talked to a player who lived in a football dormitory and seemed a trifle flustered when asked  about classes and contact with students. He knew where the weight room was, though. Now I learn that the authoritative people parking cars around the huge stadium complex were off-duty police officers, all part of the program. ".....

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Wednesday, October 15, 2014

The Most Ambitious Environmental Lawsuit Ever -

Bobby Jindal - the slick and ambitious Governor of Louisiana - is a mortal enemy of a lawsuit designed to compel the oil and gas industry to repair the damage they have done. - gwc

The Most Ambitious Environmental Lawsuit Ever -

by Nathaniel Rich

" Louisiana, the most common way to visualize the state’s existential crisis is through the metaphor of football fields. The formulation, repeated in nearly every local newspaper article about the subject, goes like this: Each hour, Louisiana loses about a football field’s worth of land. Each day, the state loses nearly the accumulated acreage of every football stadium in the N.F.L. Were this rate of land loss applied to New York, Central Park would disappear in a month. Manhattan would vanish within a year and a half. The last of Brooklyn would dissolve four years later. New Yorkers would notice this kind of land loss. The world would notice this kind of land loss. But the hemorrhaging of Louisiana’s coastal wetlands has gone largely unremarked upon beyond state borders.

This is surprising, because the wetlands, apart from their unique ecological significance and astounding beauty, buffer the impact of hurricanes that threaten not just New Orleans but also the port of South Louisiana, the nation’s largest; just under 10 percent of the country’s oil reserves; a quarter of its natural-gas supply; a fifth of its oil-refining capacity; and the gateway to its internal waterway system. The attenuation of Louisiana, like any environmental disaster carried beyond a certain point, is a national-security threat.

Where does it go, this vanishing land? It sinks into the sea.

The Gulf of Mexico is encroaching northward, while the marshes are deteriorating from within, starved by a lack of river sediment and poisoned by seawater. Since 2011, the National Oceanic and Atmospheric Administration has delisted more than 30 place names from Plaquemines Parish alone. English Bay, Bay Jacquin, Cyprien Bay, Skipjack Bay and Bay Crapaud have merged like soap bubbles into a single amorphous body of water. The lowest section of the Mississippi River Delta looks like a maple leaf that has been devoured down to its veins by insects. The sea is rising along the southeast coast of Louisiana faster than it is anywhere else in the world."

The Effect of Malpractice Reform on Emergency Department Care — NEJM

"Defensive medicine", like voter fraud, is an urban myth to which Republicans are particularly but not exclusively susceptible.  resident Obama has shown signs of the syndrome.  So what is the effect of `tort reform'?  Did it eliminate unnecessary defensive testing.  If there is such a thing legal reform should have proved its existence.  The result of VA funded systematic study? No effect.  - gwc
The Effect of Malpractice Reform on Emergency Department Care — NEJM
by Daniel Waxman, M.D., Ph.D., Michael D. Greenberg, J.D., Ph.D., et al.
BACKGROUNDMany believe that fear of malpractice lawsuits drives physicians to order otherwise unnecessary care and that legal reforms could reduce such wasteful spending. Emergency physicians practice in an information-poor, resource-rich environment that may lend itself to costly defensive practice. Three states, Texas (in 2003), Georgia (in 2005), and South Carolina (in 2005), enacted legislation that changed the malpractice standard for emergency care to gross negligence. We investigated whether these substantial reforms changed practice.METHODSUsing a 5% random sample of Medicare fee-for-service beneficiaries, we identified all emergency department visits to hospitals in the three reform states and in neighboring (control) states from 1997 through 2011. Using a quasi-experimental design, we compared patient-level outcomes, before and after legislation, in reform states and control states. We controlled for characteristics of the patients, time-invariant hospital characteristics, and temporal trends. Outcomes were policy-attributable changes in the use of computed tomography (CT) or magnetic resonance imaging (MRI), per-visit emergency department charges, and the rate of hospital admissions.RESULTSFor eight of the nine state–outcome combinations tested, no policy-attributable reduction in the intensity of care was detected. We found no reduction in the rates of CT or MRI utilization or hospital admission in any of the three reform states and no reduction in charges in Texas or South Carolina. In Georgia, reform was associated with a 3.6% reduction (95% confidence interval, 0.9 to 6.2) in per-visit emergency department charges.CONCLUSIONSLegislation that substantially changed the malpractice standard for emergency physicians in three states had little effect on the intensity of practice, as measured by imaging rates, average charges, or hospital admission rates. (Funded by the Veterans Affairs Office of Academic Affiliations and others.)
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Ebola Virus Disease in West Africa — The First 9 Months of the Epidemic and Forward Projections — NEJM

It is ironic that the political forces who now sound the most strident and xenophobic alarms about Ebola virus are those which usually denounce "foreign aid".  Sen David Vitter (R-LA) voted against a bill to fund Ebola response because it was focused on Africa.   - gwc
Response to the Outbreak of Ebola Virus Disease in the DRC.VIDEO - response to the disease in Democratic Republic of the Congo

Ebola Virus Disease in West Africa — The First 9 Months of the Epidemic and Forward Projections — NEJM
by the WHO Ebola Response Team

"As of September 14, 2014, a total of 4507 confirmed and probable cases of Ebola virus disease (EVD), as well as 2296 deaths from the virus, had been reported from five countries in West Africa — Guinea, Liberia, Nigeria, Senegal, and Sierra Leone. In terms of reported morbidity and mortality, the current epidemic of EVD is far larger than all previous epidemics combined. The true numbers of cases and deaths are certainly higher.
There are numerous reports of symptomatic persons evading diagnosis and treatment, of laboratory diagnoses that have not been included in national databases, and of persons with suspected EVD who were buried without a diagnosis having been made.1
The epidemic began in Guinea during December 2013,2 and the World Health Organization (WHO) was officially notified of the rapidly evolving EVD outbreak on March 23, 2014. On August 8, the WHO declared the epidemic to be a “public health emergency of international concern.”3 By mid-September, 9 months after the first case occurred, the numbers of reported cases and deaths were still growing from week to week despite multinational and multisectoral efforts to control the spread of infection.1
The epidemic has now become so large that the three most-affected countries — Guinea, Liberia, and Sierra Leone — face enormous challenges in implementing control measures at the scale required to stop transmission and to provide clinical care for all persons with EVD. Because Ebola virus is spread mainly through contact with the body fluids of symptomatic patients, transmission can be stopped by a combination of early diagnosis, contact tracing, patient isolation and care, infection control, and safe burial.1
Before the current epidemic in West Africa, outbreaks of EVD in central Africa had been limited in size and geographic spread, typically affecting one to a few hundred persons, mostly in remote forested areas.4 The largest previous outbreak occurred in the districts of Gulu, Masindi, and Mbarara in Uganda.5 This outbreak, which generated 425 cases over the course of 3 months from October 2000 to January 2001,6 was controlled by rigorous application of interventions to minimize further transmission — delivered through the local health care system, with support from international partners.5,7,8
We now report on the clinical and epidemiologic characteristics of the epidemic in Guinea, Liberia, Nigeria, and Sierra Leone during the first 9 months of the epidemic (as of September, 14, Senegal had reported only a single case). We document trends in the epidemic thus far and project expected case numbers for the coming weeks if control measures are not enhanced."

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Rethink Harvard’s sexual harassment policy - Opinion - The Boston Globe

Twenty eight Harvard Law Faculty members have signed an open letter calling on the University to withdraw and revise its federally-prompted sexual harassment policy. - GWC
Rethink Harvard’s sexual harassment policy - Opinion - The Boston Globe: "In July, Harvard University announced a new university-wide policy aimed at preventing sexual harassment and sexual violence based on gender, sexual orientation, and gender identity. The new policy, which applies to all schools within the university and to all Harvard faculty, administrators, and students, sets up the Office for Sexual and Gender-Based Dispute Resolution to process complaints against students. Both the definition of sexual harassment and the procedures for disciplining students are new, with the policy taking effect this academic year. Like many universities across the nation, Harvard acted under pressure imposed by the federal government, which has threatened to withhold funds for universities not complying with its idea of appropriate sexual harassment policy. In response, 28 members of the Harvard Law School Faculty have issued the following statement:
 AS MEMBERS of the faculty of Harvard Law School, we write to voice our strong objections to the Sexual Harassment Policy and Procedures imposed by the central university administration and the Corporation on all parts of the university, including the law school. We strongly endorse the importance of protecting our students from sexual misconduct and providing an educational environment free from the sexual and other harassment that can diminish educational opportunity. But we believe that this particular sexual harassment policy adopted by Harvard will do more harm than good."....

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Is Israel Abandoning Push for Two States? – J.J. Goldberg –

The permanent condition?   Getty Images

Is Israel Abandoning Push for Two States? – J.J. Goldberg –
by J.J. Goldberg
In a potentially explosive report, veteran Yediot Ahronot defense commentator Ron Ben-Yishai writes on Ynet that Israel is headed toward a new confrontation with the United States and its allies in the wake of this summer’s Operation Protective Edge. The Americans and Europeans insist that Israel must strive for a two-state solution with the Palestinians, arguing that it’s unacceptable for Israel to wreak destruction on Gaza every few years, leaving them to pay for its repeated reconstruction. They also claim that renewing Israeli-Palestinian peace talks will help them to mobilize the Arab world to join the fight against ISIS and other extremist groups, Ben-Yishai writes.
Israel, Ben-Yishai writes, is reaching the opposite conclusion. In what he calls “a dramatic reversal,” Israeli officials say that at a time of extreme instability in the Middle East, it would be suicidal for Israel to consider allowing full sovereignty in most of Judea and Samaria, even if the territory is demilitarized. Even renewing negotiations over a peace agreement is unacceptable, the Israeli officials say, because such talks would lead to deadlock, frustration and unrest on the Palestinian street. Moreover, Israeli officials express doubt that the moderate Arab states need “an incentive” on the Palestinian front to motivate them to fight the jihadists, who threaten their own regimes.
Ben-Yishai writes that Israel now seeks to “manage” the conflict with the Palestinians rather than try to “solve” it. Toward the goal of maintaining calm in Gaza as well as the West Bank, he writes,
Israel is even willing to pay a serious price for this to happen and thus — without much fanfare –— Israel waived its objection to internal Palestinian reconciliation and the formation of the Palestinian unity government between the Palestinian Authority and Hamas.
Israel will also work to improve economic conditions in the West Bank and Gaza and ease restrictions on movement between the two territories, Ben-Yishai writes. In fact:
The security establishment now admits that Israel’s airtight closure of the Gaza Strip has worked against the country’s general interests. The blockade created common interests and solidarity between the economically troubled Hamas government and the suffering residents of Gaza, many of whom supported the armed struggle to harm the citizens of Israel, acting out of frustration and anger.
Ben-Yishai’s report appears in English translation at the English-language site, but the reader is cautioned that the translation contains some fairly significant errors. Most misleading, the translation says the Americans and Europeans believe Israel “is committed to a two-state solution,” but Ben-Yishai’s Hebrew original says they believe Israel “is obliged to work toward a two-state solution” (חייבת לחתור לפתרון שתי מדינות ) — which speaks only of the American-European view of what Israel should do and implies nothing about Israel’s intentions. Moreover, the translation says Israel believes “there is no way to transfer the majority of the Jewish population in the Judea and Samaria to Palestinian sovereignty.” The Hebrew doesn’t mention the Jewish population, but merely says it’s “impossible to consider transferring most of Judea and Samaria to full Palestinian sovereignty” ( אי אפשר לשקול בכלל העברת רוב יהודה ושומרון לריבונות פלסטינית מלאה ).
If Ben-Yishai is right about a new Israeli policy taking shape (and few Israeli journalists have a better record than his), it probably won’t come as a surprise to skeptics of Israeli intention, who have accused the Netanyahu government for some time of insincerity in aiming for a two-state solution. However, it could require some rethinking among Israel’s leading American advocates, who have long insisted that Jerusalem is eager to reach a two-state solution and end its current military rule over the Palestinian population.
A policy that ties progress on a peace agreement and ending Israeli rule over the Palestinians to the unlikely advent of stability in the broader Middle East — something that’s likely to take years if not decades — is tantamount to a plan for permanent control over a Palestinian population that enjoys neither independence from Israel nor citizenship in the Israeli state that rules them. Add to that the likelihood of continued expansion of Israeli settlement in Judea and Samaria and the stage is set not for calm, as Israeli officials tell Ben-Yishai they seek, but growing tension.
It’s going to be difficult to continue defending Israel as a democratic Jewish state if Israel plans to maintain a population of three or four million non-Jewish non-citizens under open-ended military rule.
Ben-Yishai reports that Israel’s plan for conflict management is currently being developed in the context of talks on Gaza reconstruction. He writes that the talks are being conducted by a five-member working group that includes Egyptian intelligence chief, General Mohammed Tohami; Palestinian prime minister Rami Hamdallah; the IDF coordinator of civilian affairs in the territories, Brig. Gen. Yoav “Pauly” Mordechai; the longtime chief of the political-security division in the Israeli Defense Ministry, Amos Gilad; and Dutch diplomat Robert Serry, the United Nations special envoy for Israeli-Palestinian affairs, who has emerged as a key player in postwar negotiations.
Much of what the group has discussed so far has involved detailed security arrangements to ensure that materials for Gaza reconstruction aren’t diverted to Hamas military use, either in rebuilding tunnels or re-equipping weapons workshops. For anyone who’s wondered how such a security regime could conceivably work, the second half of Ben-Yishai’s report is an eye-opener and well worth a read.

Read more:

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Tuesday, October 14, 2014

Synod document offers new style of being church | National Catholic Reporter

Synod document offers new style of being church | National Catholic Reporter
by Thomas Reese, S.J.
"Listening, accompanying, respecting, valuing, discerning, welcoming, dialogue are words repeated throughout the new document being discussed by the synod of bishops in Rome this week. Words of condemnation and marginalization were avoided. The document, called a "relatio post disceptationem," sums up what Cardinal Peter Erdo and the nine-member drafting committee see as the current synodal consensus as they move from a week of speeches into a week of small group discussions. The relatio will help focus the discussions in language groups and lead to a final document that will be the fruit of the synod and provide fodder for conversation throughout the church as it prepares for the next synod in October 2015."

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Monday, October 13, 2014

British Parliament votes to recognise Palestinian state | The Guardian

MPs vote to recognise Palestinian state, adding to pressure on Israel | World news | The Guardian:
by Patrick Wintour
"Young Jewish men argue with pro-Palestinian supporters in Parliament Square as MPs debate the recognition of Palestine. Photograph: Leon Neal/AFP/Getty Images MPs including the Labour leader, Ed Miliband, have voted to recognise Palestine as a state in a symbolic move that will unnerve Israel by suggesting that it is losing a wider battle for public opinion in Britain.
 The vote of 274 to 12, a majority of 262, on a backbench motion has no practical impact on British government policy and ministers were instructed not to vote. Labour decided to impose a one-line whip, and the Liberal Democrats, like the Conservatives, gave their backbenchers a free vote.
 In possibly the single most important contribution in an emotional debate, Richard Ottaway, the Conservative chairman of the foreign affairs select committee, said the recent annexation of West Bank land by the Israeli government had angered him like nothing else in politics.
 The Conservative MP said he had been a supporter of the state of Israel before he became a Tory and had close family connections with the generation that formed the Israeli state. He explained: “The Holocaust had a deep impact on me growing up in the wake of the second world war,” adding that he had been a strong supporter of Israel in the six day war and subsequent conflicts. He told MPs: “Looking back over the past 20 years, I realise now Israel has slowly been drifting away from world public opinion. The annexation of the 950 acres of the West Bank just a few months ago has outraged me more than anything else in my political life. It has made me look a fool and that is something I deeply resent.” He said he was not yet convinced that Palestine was fit to be a state due to its refusal to recognise Israel, adding that “in normal circumstances” he would have opposed the motion. But, he said, “such is my anger with the behaviour of Israel in recent months that I will not be opposing this motion. I have to say to the government of Israel: if it is losing people like me, it is going to be losing a lot of people.”"

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Public Health in the Shadow of the First Amendment //Yale

When one sells a poison he is not in a position to refuse public health mandates spelling out the consequences of the toxin.  Unless you are in the United States living under the rule of the Scalia-Roberts gang.  Then you can observe the First Amendment as a cudgel impairing public health.  - gwc


by Jack Balkin
 This weekend the Yale Law School, Medical School and Public Health School will co-host a conference on Public Health in the Shadow of the First Amendment.  This week Balkinization will feature posts from several of the participants.  Here is the conference description: Public Health in the Shadow of the First Amendment will bring together leading scholars, key policy makers, and top experts in law, public health and medicine.
This conference, the first of its kind, will investigate a broad range of complex constitutional issues raised at the intersection of medicine, public health, and the First Amendment. The regulation of food, medicines, and tobacco all rely crucially today on the regulation of speech, for example through behavioral marketing, disclosures, and restrictions on certain modes of commercial promotion.
First Amendment doctrine has recently changed in significant ways, bringing it into potentially deep tension with such measures.  For example, commercial speech doctrine has been used to invalidate FDA restrictions on off-label marketing of drugs, to prevent graphic warnings on cigarette packages, and to challenge calorie disclosures in restaurants.
 In addition, new and important questions about the limits of a legislature’s ability to mandate or forbid certain physician speech are emerging.  For example, should the First Amendment protect doctors from requirements that they provide patients with ultrasounds or medically unproven “information” in the abortion context, or mental health providers from restrictions on conducting reparative therapy for gay teens?
In cases such as these, courts and legislatures are also increasingly required to adjudicate questions of scientific merit.  Many recent examples suggest reason for concern about the results. Neither courts nor scholars have developed a consistent and coherent approach to these different areas. Experts in First Amendment law are rarely in a position to fully articulate the health consequences of these cases, and health experts rarely have the literacy in free speech law required to navigate these issues. This conference will investigate these enormously important issues, with panels on food and drug regulation, behavioral marketing in the context of obesity, tobacco, and food policy, the regulation of professional conduct, First Amendment theory, and the intersection between science and democracy."

Sunday, October 12, 2014

Public Health Emergency Funding Has Taken Major Hit

Public Health Emergency Funding Has Taken Major Hit
by Caitlin Macneal// talkingPoints mm: "A writer for Scientific American recently pointed out that funding for the Center for Disease Control's funding for public health preparedness has taken serious hits over the course of the past decade. According to funding data analyzed by Judy Stone, annual funding for preparedness efforts have fallen by $1 billion between 2002 and 2013."

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Saturday, October 11, 2014

Torts Today: Parsing the New Internet Rules of China’s Supreme Court | China Copyright and Media

Torts Today: Parsing the New Internet Rules of China’s Supreme Court | China Copyright and Media: Rogier Creemers, Oxford Comparative Media Law scholar,  reports on the new regulations on online torts issued by China's Supreme People's Court. He has translated the Regulations and given us commentary.  - gwc
"Yesterday, the Supreme People’s Court issued a document with the – predictably convoluted – title “Supreme People’s Court Regulations concerning Some Questions of Applicable Law in Handing Civil Dispute Cases involving the Use of Information Networks to Harm Personal Rights and Interests”. This document provides instructions to People’s Courts on certain aspect of dealing with civil cases involving harm to personality rights, including the right to privacy, portrait rights and reputational rights. (Full disclosure, I was involved in an academic project that provided input into the drafting process).
It has been drafted to supplement the broad language of Article 36 of the Tort Liability Law, which sets forth a basis of liability for the online infringement of citizens’ rights, and provides for basic remedial measures. The Article’s wording left many questions of procedure and substance unanswered, meaning that courts (which in China’s civil law-based system have considerably less leeway to interpret the law, and do not create binding precedents) often faced considerable difficulties in handling these cases.".....
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Friday, October 10, 2014

The Palins: Not worth the trouble

Sarah Palin
Half-term Alaska Governor Sarah Palin
The Anchorage  police report released yesterday is a classic of the `all caps' patrolman's incident report sort.   The Palin brawl occurred on a drunken Dad's night out.  The police wisely decided not to prosecute.  They're not worth the trouble.  The one who should be charged is John McCain who nearly found himself stuck with Sarah Palin in close quarters for 4 to 8 years, while giving us a one step above trailer trash reality TV show in Blair House.  Though there are no pictures of shirtless and bloodied Track Palin, nor of a drunken Bristol Palin being "drug" across the yard, the reporter does a good job of conveying the whole stupid brawl.  - gwc

Thursday, October 9, 2014

A famous, some would say infamous, Plaintiff’s trial lawyer speaks about Karl Rove, “buying” judges, and the plight of lawyers who represent injured people « Hercules and the umpire.

A famous, some would say infamous, Plaintiff’s trial lawyer speaks about Karl Rove, “buying” judges, and the plight of lawyers who represent injured people « Hercules and the umpire.:
by Richard Kopf, U.S.D.J. (D. Nebraska)
"When Lee Pacchia from Mimesis wrote to let me know that he had interviewed the highly controversial and very successful Plaintiff’s trial lawyer Fred Levin, and that the interview was available on You Tube, I hit play and was fascinated. I thought of Vince Powers, who is a fine Plaintiff’s trial lawyer here in Lincoln. Vince has spoken eloquently about many of the things that Mr. Levin talks about in his interview. In short, I thought that readers of this blog would be interested in Mr. Levin’s point of view. So, with the caveat that you should judge for yourself, here is the interview:"


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Wednesday, October 8, 2014

Israel's position in U.S. Weakens - Beinart//Haaretz

Prime Minister Benjamin Netanyahu
Support for Israel in the United States is built on three legs: the devoted support of American Jews, sympathy for Israel as a refuge for the victims of the Holocaust, and identification with Israel as a liberal democracy faced by implacable enemies bent on its destruction.  The third leg is weakening because after almost fifty years Israel remains an occupying power, taking even more land and committed to preventing Palestinians from ever having a state of their own.  A militant tribal state is not what Americans have in mind when they think of democracy. - gwc

Peter Beinart explains in Haaretz

American political culture is growing more critical of Israel. There’s been a noticeable change even in the last few months. To understand why, one must realize that Americans have always felt most comfortable defending Israel in the language of democracy. To combat Israel’s “delegitimization,” Prime Minister Benjamin Netanyahu often stresses the Jewish people’s biblical ties to the land. That rhetoric works among conservative Christians, but it’s too theological for most Americans. Stressing Israel’s democratic character, by contrast – the political ideals it shares with the United States – appeals to Americans of all stripes.
That’s why Israel’s American supporters keep claiming that Israel’s government wants to create a Palestinian state, even as top Israeli leaders themselves insist they don’t. If Israel doesn’t want to create a Palestinian state – if its leaders are comfortable permanently controlling millions of people who cannot vote for the government that oversees their lives – then the core rationale that Israel’s American defenders have been using all these years breaks down....

The State-by-State Revival of the Right -

The State-by-State Revival of the Right -
by Thomas Edsall

At the state level, Democrats have been complacent, as dangerous and foolish as that might be. They have failed to combat effectively the determination of business interests and of ideological conservatives to secure power. This determination on the right drove the Republican Party to successfully focus on crippling the left in state races in 2010 and 2012, turning the contests of 1980, 1994 and 2010 into Republican wave elections.

Democrats today convey only minimal awareness of what they are up against: an adversary that views politics as a struggle to the death. The Republican Party has demonstrated a willingness to sacrifice principle, including its historical commitments to civil rights and conservation; to bend campaign finance law to the breaking point; to abandon the interests of workers on the factory floor; and to undermine progressive tax policy – in a scorched-earth strategy to postpone the day of demographic reckoning.

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Tuesday, October 7, 2014

National Review Writer Compares Gay Marriage To Dred Scott

Chairman, Department of Hyperbole
Witherspoon Institute

Matthew Franck, Director of the "William E. and Carol G. Simon Center on Religion and the Constitution" at the Witherspoon Institute in Princeton provides an excellent example of the rhetorical device hyperbole. - gwc

National Review Writer Compares Gay Marriage To Dred Scott: "Reacting to Monday's news that the Supreme Court had cleared the way for same-sex marriage across much of the country, writer Matthew J. Franck called the Court's acquiescence "a slow-motion Dred Scott for the twenty-first century." In Dred Scott v. Sandford, the Supreme Court ruled that blacks "had no rights which the white man was bound to respect," rejecting Scott's appeal for freedom and destroying the Missouri Compromise."
He elaborated later:
In Dred Scott it was the false idea that some human beings can own other human beings, and that a democratic people cannot say otherwise. In the same-sex marriage rulings it is the false idea that men can marry men, and women can marry women, and that democratic peoples cannot say otherwise.

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Wow - same sex marriage petitions denied //Mirror of Justice

I suppose that Scalians like Richmond law prof Kevin Walsh will have their day in November when, as appears likely, the reactionaries take the Senate.  But for now I draw some satisfaction from his discomfiture.  I think he's right here though - denying cert in the several ripe cases that squarely present the constitutional issue is a back-handed way to recognize the still unsettled right.  Unlike "phony originalists" such as his mentor I think that constitutional law properly develops unevenly as a dynamic interaction of popular sentiment, state practice, executive and legislative action, and judicial interpretation, so I wouldn't call the decision "irresponsible".  But the Supreme Court punted here - unwilling to directly confront the controversial question - while leaving the pro-same-sex marriage circuit decisions in place.  National uniformity will have to wait for another day.  Like cases will not be treated alike until then. - gwc

Wow - Same sex marriage petitions denied - Mirror of Justice
SCOTUSBlog is reporting that the Supreme Court has "denied review of all seven of the petitions arising from challenges to state bans on same-sex marriage." This is a surprise. It is also irresponsible. To allow the redefinition of marriage for such a large segment of the American population on the basis of emanations from Windsor is not right. It's true there is no circuit split yet, but there seems little question that the Fourth, Seventh, and Tenth Circuits have "decided an important question of federal law that has not been, but should be, settled by [the Supreme] Court." 

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