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Richard Painter
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This does not concern the merits of the same sex marriage case about which reasonable persons can disagree. This concerns judges and the rule of law. Ethnic identity, sexual orientation, religion, or other indicia of personal identity cannot be used to disqualify a judge from office or from deciding particular cases. In the United States, judges do not wear yellow stars, pink triangles, red crescents or Mexican flags on their robes, and such indicia do not determine which judges are allowed to decide which cases. Latino American judges, African American judges, and Asian American judges can decide affirmative action cases. Women judges can decide abortion cases. Gay judges can decide same sex marriage cases. That is America. As for Mr. Whelan’s view of gays, the record is wide and deep. In this op-ed we hear about how the Boy Scouts committed “suicide” by allowing gay scout leaders: This op-ed was not about whether the Scouts should have the right to exclude gays (the Supreme Court held that they have that right). This op-ed is instead a harsh criticism of the Scout’s decision – finally – to conform their policy to the values of a great many religious denominations that sponsor scouting troops (or would like to sponsor troops, if they were not forced to discriminate) and the values of the Country whose flag the Scouts wear on their sleeve. The op-ed says that, because of this decision to allow gay scout leaders, parents have to worry about bad things happening to small boys underneath scouting tents. Such arguments are unworthy of a response.
This conflict is too remote to require recusal from the hearing, although it probably would be improper for Senator Cruz to ask questions of the nominee about this particular legal issue. Cruz's chances of being elected President are not high and in any event the legal case against him is very weak. Furthermore, senators confirming a nominee are deciding the fate of someone who will in turn decide matters that affect the Senators themselves, including the constitutionality of legislation (such as Obamacare) they enact and that may be crucial to their reelection. Cases about campaign money affect them all. Citizens United. The court may even have a role in deciding who the next President is. Bush v. Gore. This election is not an excuse for the Senators not to do their duty, which is to consider and vote on the President's nominee. If they can't do their duty, voters will have to do theirs.
Toggle Commented Feb 24, 2016 on Cruz Must Recuse at Legal Ethics Forum
It all shows up on my screen but may not on others. I will look into what I can do to shorten margins R
Our national disgrace is our system of campaign finance, and neither party is taking the issue seriously. I welcome any candidate in either party who will take this issue seriously. Whether or not they get elected - and how long they would serve if elected -- is beside the point.
I repeatedly told White House staff over and over again in the ethics lectures (2005-2007) that the official email account is for official purposes and personal or political email accounts are for personal or political purposes. Our staff manual said that, as did the Clinton White House staff manual of which we had a copy. And there was indeed a lot of fuss when a few people on the White House staff did otherwise. Congress was furious when they could not get some official White House emails that were sent on personal or political accounts. Do we ever learn?
I made an earlier post here saying that Republicans should focus on the issues, not ethics allegations, when taking on Clinton. As for the old allegations, my opinion still holds, but the news about goings on at State is troubling. In addition to the email there are foreign donations to the Clinton Foundation and at least one high ranking but part-time State Department official who was at the same time working for a political intelligence firm, another arrangement that State Department lawyers should not have allowed (hint: that official's husband, a Congressman from New York, resigned after a scandal).
A great idea. Another great idea: Put state lawmakers on a full time payroll and ban or sharply limit outside earned income as does the federal government. This costs more short term but is a lot cheaper in the end.
This is a great article -- I highly recommend it! And it is relevant to other areas of prosecutorial discretion as well. Richard
I concur. This will be particularly difficult for lawyers who practice in both California and other jurisdictions. The message will be for lawyers to stay out of California. Perhaps that is what some California lawyers want. RWP
And here is some more info on the top campaign donor Apollo Education, whose own shareholders are not too happy: "A shareholder has sued Apollo Education Group, Inc. (NASDAQ: APOL) alleging that senior executives mislead investors about Apollo’s compliance with federal regulations. Procedural Status: The class action complaint was filed on April 24, 2014 in the District of Arizona and it has been assigned to Judge Susan R Bolton. The civil docket number is 2:14-cv-00877-SRB. The “Class Period” is October 19 20131 to April 1, 2014, meaning as currently plead, only those shares purchased between those dates are part of the class action. The complete name of the case (for now) is Saleh v. Apollo Education Group Incorporated et al. The lead plaintiff date is June 23, 2014, meaning if you would like to serve as lead plaintiff, you must file the appropriate paperwork by that date." The shareholders at least have lawyers to represent them. Who represents the taxpayers?
John Denney, candidate for Congress in Minnesota's Sixth District has just entered into the following contract with a newly formed Minnesota LLC. I hope the other candidates in that race will soon follow. LEGALLY BINDING ETHICS CONTRACT AGREEMENT AND CONSIDERATION WHEREAS John James Denney, as candidate for Congress in the Sixth District of Minnesota, and later, if elected, as a Member of Congress (“Promisor”), agrees to and wishes to make legally enforceable his campaign promises not to participate in the prohibited anti-corruption activities defined below; WHEREAS Promisor’s campaign promises could not otherwise be legally enforceable without the assistance of another party’ agreement to bind Promisor thereto; WHEREAS Minnesota Sixth, LLC (“Minnesota Sixth”), a member managed Minnesota LLC established for the sole purpose of enforcing promises of the type Promisor seeks to be bound to, agrees to and wishes to assist Promisor in binding Promisor to his campaign promises by agreeing to bind him to such promises; NOW THEREFORE, in consideration of these promises and agreements, Promisor agrees to pay to Minnesota Sixth ONE HUNDRED FIFTY FIVE DOLLARS ($155.00) and in return, Minnesota Sixth agrees to explain to Promisor and to Promisor’s staff the purposes of the provisions herein, and to maintain ongoing efforts to ascertain compliance by any and all other promisors who choose to bind themselves to this or any similar agreements with Minnesota Sixth and that upon entering into this agreement Minnesota Sixth shall provide Promisor a Certificate of Agreement which memorializes Promisor’s commitment to hold himself to a higher ethical standard than otherwise required of candidates and Members of Congress. In the event Promisor breaches any provisions below and Minnesota Sixth recovers damages therefrom, for any such damages Minnesota Sixth recovers, after paying all applicable expenses and taxes, Minnesota Sixth agrees to distribute all remaining amounts recovered to public schools in the Sixth District of Minnesota. In the event Promisor is not elected to Congress in 2014, this contract will terminate on January 1, 2015. ANTI-CORRUPTION PROVISIONS Prohibitions and Promises - 1. No Conflict of Interest Campaign Contributions. Promisor shall not intentionally and directly solicit or Knowingly Accept any campaign contributions that create a conflict of interest (“COI Contributions”) with Promisor’s duty to represent, exclusively, the people of the District Promisor represents. 2. Lifetime Ban on lobbying Congress. Promisor agrees to self-impose and adhere to a lifetime ban on Lobbying back to any member or staff of the United States House of Representatives or Senate for compensation after serving any congressional term. Definitions and Terms - Knowingly Accept means to expressly accept or Impliedly Accept any contribution of any legal tender. Impliedly Accept means to spend or cash any contribution, or to fail to expressly reject any contribution within 90 days of its receipt. Express rejection may be made in any manner reasonably calculated to give notice to donor and the public. COI Contributions are campaign funds donated to Promisor by any political party, Political Action Committee (PAC), labor union, for-profit corporation, Special Interest Group, or any individual not residing in the State of Minnesota who is not also a Family Member of Promisor. Special Interest Groups are industry or advocacy associations or groups that focus on particular issues, or any other group that seeks through its contributions to influence legislation. Family Member means any family member or immediate relative as defined by the Office of Personnel Management under 75 C.F.R. § 33491 (2010). Lobbying shall have the same meaning as set forth in the Lobbying Disclosure Act of 1995 as amended. Penalties/Damages in the Event of Breach - Section 1. Promisor must pay out of Promisor’s personal funds, liquidated damages to Minnesota Sixth in the amount of twice the amount of the contribution in question, and furthermore, if elected, Promisor must pay liquidated damages in the amount of Promisor’s entire congressional salary for the given term. Section 2. Promisor must pay out of Promisor’s personal funds liquidated damages to Minnesota Sixth in an amount equal to Promisor’s entire earnings to date as a Member plus the agreed upon amount of Promisor’s first year salary as lobbyist. Signed/Dated:___________________________________ Promisor _________________________________________________ Managing Member on behalf of Minnesota Sixth, LLC
I would use multiple sources -- Lexis, Westlaw, and Google among others -- for research and not rely upon any one of them. How much double checking and how many back up searches are needed of course depends upon the circumstances.
Toggle Commented Jul 8, 2014 on What if Westlaw/Lexis Err? at Legal Ethics Forum
It depends upon whether she will clearly articulate what she would do differently than the current Administration. So far, I have heard nothing.
She is free to say anything she wants in the dissent, but it is wrong to suggest that this holding could take us down a slippery slope when the majority carefully crafts its opinion to these particular facts. A wide range of government regulations in other areas can easily meet the RFRA test of there being a compelling state interest in regulation and no other good alternative. Discrimination in employment -- and against customers -- is one such area of regulation that (outside of churches themselves and institutions run by churches) should withstand RFRA challenges. The dissent's slippery slope argument almost invites a flurry of frivolous lawsuits by homophobic, racist and other business owners hoping to hide their prejudices behind RFRA. The majority opinion deals with this problem reasonably well with general language carving out discrimination cases, but it could have done more.
1. It is important that both sides -- no matter how strongly we feel about the underlying issues -- do what we can to promote a campaign that focuses on the issues, not personal attacks. My criticism of the Democrats is on the issues and many people share my view. 2. Although I am a Republican I have supported this Administration on issues where the Administration is right (e.g. immigration reform, freedom to marry, reasonable gun regulations and the right for the President's judicial nominations to get an up-or-down vote in the Senate). Overall, however the record has not been good on some big issues such as the economy and an effective foreign policy. 3. Remove my criticisms of the Democrats and this looks like yet one more post by a partisan liberal who will complain about personal attacks on Democrats while trying to dig up as much dirt as possible on Republicans.
What the market needs is a law school that will educate lawyers for far less cost than most law schools incur today, so it can charge a lot less and its graduates can afford to represent ordinary people and make ordinary money. There is something wrong with a system where there are "too many" lawyers but most people still cannot afford a lawyer. Cooley or some other law school could meet this need with steps such as the following: narrow the curriculum to focus mostly if not exclusively on bar courses, reduce the program to two years, rely in large part on adjunct faculty who are often just as good teachers as full time faculty, cut back on or eliminate programs not directly related to classroom instruction, and pay full time faculty to teach. Publishing or consulting for fame or fortune is something faculty would do on their own time. The ABA of course would oppose some of these measures and use the accreditation process to insist that its vision of a law school -- an expensive law school -- is the only business model permitted. After all a lawyer who goes to a cheap law school is not that much better than a lawyer, like Abraham Lincoln, who went to no law school.
Note: Parts of the Arizona law that would have been amended by the vetoed bill look a lot like RFRA but other parts, including a very broad definition of exercise of religion, are different from RFRA and make the Arizona language appropriate for protecting churches (which it now does) but not individuals and corporations in the general economic sphere (as the vetoed language would have done). Example: under current law a Catholic church can discriminate against women and openly gay men in hiring priests, but a for profit business cannot discriminate against job applicants or customers even if it claims to do so on religious grounds. The legislative history of the Arizona bill is also clear that it intended to abolish this distinction between churches and other persons and organizations so for example a florist could refuse to sell flowers to people who intended to use them in a same sex wedding.
Strict scrutiny is appropriate here too. Judge Calabresi should not speak about cases pending before his court or the lower courts, but is there really a risk to the course of justice if he speaks about a case now before the Supreme Court? I know what the rule says, but it needs to be a rule of reason and applying it in this circumstance is not reasonable. RWP
Some of these web sites could have been offering securities for sale to the public. If so, the sites fit within the definition of a prospectus (see SEC rule below). The SEC staff members will argue that they were only doing their jobs. Please note that a live presentation would not constitute a prospectus, although it could still constitute an offer of securities within the meaning of Section 5. SEC Rule 405 (definitions of terms) Graphic communication. The term graphic communication, which appears in the definition of "write, written" in section 2(a)(9) of the Act and in the definition of written communication in this section, shall include all forms of electronic media, including, but not limited to, audiotapes, videotapes, facsimiles, CD-ROM, electronic mail, Internet Web sites, substantially similar messages widely distributed (rather than individually distributed) on telephone answering or voice mail systems, computers, computer networks and other forms of computer data compilation. Graphic communication shall not include a communication that, at the time of the communication, originates live, in real-time to a live audience and does not originate in recorded form or otherwise as a graphic communication, although it is transmitted through graphic means.
With respect to law professors, my point is that they write about the law differently than lawyers and judges. They take varying degrees of poetic license with case law, legislative history and sometimes facts that lawyers and judges do not. Some law professors are beyond the pale; most are reasonably accurate in their descriptions, but I would not use their work in legal opinions or briefs. I would use it instead in making policy. See the recent comments of Chief Justice Roberts about law reviews. Some law professors -- and I put Professor Liu in this category - usually describe cases with sufficient accuracy so that their work actually is useful for the practice or law and judging, not just discussion of policy. Professor Liu's op-ed on Judge Roberts at the time of the Supreme Court nomination in my view fell short of this standard. Nobody that I recall paid much attention to it. That does not mean that Professor Liu's work on the whole reflects carelessness or is defective, even by the standards of a lawyer or judge. I don't agree with some of it, but it is highly professional. RWP
With respect to law professors, my point is that they write about the law differently than lawyers and judges. They take varying degrees of poetic license with case law, legislative history and sometimes facts that lawyers and judges do not. Some law professors are beyond the pale; most are reasonably accurate in their descriptions, but I would not use their work in legal opinions or briefs. I would use it instead in making policy. See the recent comments of Chief Justice Roberts about law reviews. Some law professors -- and I put Professor Liu in this category - usually describe cases with sufficient accuracy so that their work actually is useful for the practice or law and judging, not just discussion of policy. Professor Liu's op-ed on Judge Roberts at the time of the Supreme Court nomination in my view fell short of this standard. Nobody that I recall paid much attention to it. That does not mean that Professor Liu's work on the whole reflects carelessness or is defective, even by the standards of a lawyer or judge. I don't agree with some of it, but it is highly professional. RWP
Toggle Commented Apr 9, 2010 on Liu's secret dustbin at Legal Ethics Forum
1. Milliken (1974).(5-4 holding that courts may not order busing across district lines). His criticisms of Milliken appear in articles Brown, Bollinger, and Beyond, 47 Howard L.J. 705, 724-27 (2004), and School Choice to Achieve Desegregation, 74 Fordham L. Rev. 791, 792-93 (2005). He expressed concern that Milliken contributed to the isolation of inner cities from surrounding suburbs. .However, he did not call for Milliken to be overruled by the courts and he acknowledged that Milliken seems firmly embedded in the law (74 Fordham L. Rev. at 793). He has not urged the courts to revisit this core holding on busing across district lines. Instead, he proposed school choice initiatives, including school vouchers, to create incentives for urban-suburban integration of public schools (pp. 808-822 of 74 Fordham L. Rev.). Vouchers? School choice? Sounds to me like a good plan for putting Milliken in the dustbin of history. If the teachers unions are upset at this, they can write the Judiciary Committee. In any event, all of this is out there in the public domain. Finally, it is common knowledge that the entire line of school busing cases is in fact headed for the dustbin because that remedy does not work. Anyone who has been in the back of a public school bus should know that. For quite some time now judges, policy makers and law professors (including Liu) have been looking at other remedies. 2. Rodriguez (1973) (5-4 holding that education is not a fundamental right and a school funding scheme based on local property taxes did not violate equal protection). His criticisms are published at 47 Howard L.J. at 722-24, 765-68. He has not called for Rodriguez to be overruled either. In another article, he acknowledges that Rodriguez reflects "considerations of judicial restraint arising from the countermajoritarian difficulty and limitations on institutional competence" (Education, Equality, and National Citizenship, 116 Yale L.J. 330, 338 (2006)). The principal thrust of his scholarly work on equal educational opportunity in the Yale article and elsewhere has thus been directed at Congress and other policymakers, not the courts. Once again it is common knowledge that Rodriguez reveals pathetic facts about inequality in primary and secondary education. Conservatives and liberals have been working for years to put this state of affairs in the “dustbin”. How to get there is the more difficult question that cannot be answered by such glib phrases. Judicial activists want courts to solve the problem of educational inequality. Proponents of judicial restraint want the legislature and school districts to sort it out. Liu seems to fall in the latter category, although he might do more as a judge than the conservative judges on the courts. In any event, his law review articles give some hint at how he might approach this problem; the “dustbin” quote does not. 3. Adarand (1995) (5-4 affirmative action holding extending the principles of Croson (1989) to the federal government). His writings have agreed with Adarand's central holding that racial classifications must be subject to strict scrutiny. See Seattle and Louisville, 95 Cal. L. Rev. 277, 280-81 (2007); Affirmative Action in Higher Education, 33 Harv. C.R.-C.L. L. Rev. 381, 383 (1998). He disagreed with Croson - and, by extension, Adarand - to the extent that those cases hold that, under strict scrutiny, remedying societal discrimination (as opposed to particularized discrimination by a government entity) is not a compelling interest that can justify affirmative action. See 47 Howard L.J. at 759-63. His view on that point, though contrary to the majority of a divided Court, is hardly radical as many people – including the dissenting Justices -- expressed concerns when the decision was handed down. Liu obviously does not like these two cases and supports affirmative action in some contexts where legislatures and other policy makers choose to use it. He is troubled when the judiciary strikes it down. Once again, for opponents of affirmative action this is bad news. For proponents of judicial restraint this is probably good news (although Liu would use strict scrutiny for racial classifications including affirmative action which means some affirmative action plans would get struck down).. Affirmative action is a policy that goes back to the Nixon and Ford Administrations. Critics are skeptical and feel that forty years later it is time to try something else. Some believe racial classifications are inherently immoral and unconstitutional. Professor Liu is inclined to continue to use affirmative action or at least he feels compelled to urge courts to allow policy makers to continue to use it when they want to (within limits because of the strict scrutiny standard that he does not contest and that courts will apply). We know that Liu does not like the majority holding in cases like Adarand. This much is obvious from his law review articles and other works he provided to the Committee. The “dustbin” quote is colorful but it doesn’t add anything to the analysis.
Toggle Commented Apr 9, 2010 on Liu's secret dustbin at Legal Ethics Forum
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Apr 2, 2010