Plea Bargains and Effective Assistance of Counsel

Thu, 22 Mar 2012 14:53:18 GMT

Over at Volokh, Orin Kerr takes a look at the US Supreme Court's recent decisions about effective assistance of counsel in the context of plea bargaining. The two cases deal with scenarios that are familiar in the context of legal malpractice cases arising out of civil litigation. In one, Missouri v. Frye, the prosecutor offered a deal for a limited time but the defense counsel failed to communicate the deal on time. The accused claims that he would have accepted the deal. In the other, Lafler v. Cooper, the accused claims that defense counsel offered bad advice about whether to accept the deal or go to trial. Read the post by Kerr and, for that matter, there lots of discussion of these two important cases around the blawgosphere.

Part XV—Zhiwei Tong (???) Series: The Petitioning System and the Constitution of China

lcb911@gmail.com (Larry Catá Backer) — Thu, 22 Mar 2012 14:41:58 GMT

(Zhiwei Tong, PIX (c) Larry Catá Backer)

For 2012, this site introduces the thought of Zhiwei Tong (???),one of the most innovative scholars of constitutional law in China. Professor Tong has been developing his thought in part in a essay site that wasstarted in 2010. See, Larry Catá Backer, Introducing a New Essay Site on Chinese Law by Zhiwei Tong,Law at the End of the Day, Oct. 16,2010. Professor Tong is on the faculty of law at EastChina University of Political Science and Law. He is the Chairman of the Constitution Branch of the Shanghai Law Society andthe Vice Chairman of the Constitution Branch of the ChinaLaw Society.

The Zhiwei Tong (???) Series focuses on translating some ofProfessor Tong's work on issues of criminal law and justice in China, mattersthat touch on core constitutional issues. Each of the posting willinclude an English translation from the original Chinese, the Chinese originaland a link to the original essay site. Many of the essays will includeannotations that may also be of interest. I hope those of you who areinterested in Chinese legal issues will find these materials, hard to get inEnglish, of use. I am grateful to my research assistants, YiYang Cao and Zhichao Yi fortheir able work in translating these essays.

TABLE OF CONTENTS FOR THE SERIES AVAILABLE HERE.

(Pix (c) Larry Catá Backer 2012)

Part XV—Zhiwei Tong (???) Series: The Petitioning System[1] and the Constitution of China (Part I)

For Part II see Part XXIV—Zhiwei Tong (???) Series: Petitioning System and the Constitution of China (Part II)

For Part III see Part XXV—Zhiwei Tong (???) Series: Petitioning System and the Constitution of China (Part III)

* * * * * *

The Petitioning System refers to the set of stylized arrangement made by the public institutions in response to citizens’ petitions. It has a particular importance in our country’s social life today. However, just like some scholars have pointed out: “the academic research on the Petitioning System is not commensurable to its particular importance.”[2] Although recent data shows that, till 2009, the total number of petitions has decreases in the past 5 years,[3] in the context of building a country ruled by law, critical questions awaiting general consensus across the society in our country rise. These questions include: how to properly look at the past and current petitioning activities and related governmental responses; how to handle the relationship between the petitioning system and the core political system with the spirits of the Constitution and principles of the rule of law; how to solve or ease the problems caused by petitioning; how to reform the entire mechanism with which the authorities respond to petitioning. In order to answer these questions well, we have to find petitioning a reasonable position within the framework of the Constitution of China with respect to the core political system. This article tries to investigate and discuss these problems based on the existing result of academic studies. The article will use the concept of “core political system” and “auxiliary system”, a division developed through the differentiation of political/legal system within constitutional framework of our country.

1) The position of the petitioning system as it should be within the Chinese constitutional framework

It is an extremely difficult task to get a reasonable and accurate grasp of the exact position of the petitioning system within our constitutional framework, because our constitutional framework is in constant motion and the textual system of the Constitution and laws is not always the same as in actual practice. However, in terms of methodology, we should first consider the constitutional framework, determine the right position of the petitioning system as it should be, and then use it as a reference to assess the current and future position of the petitioning system.

With structural and functional factors in mind, we might as well divide the political/legal system within our constitutional framework into the core political system and auxiliary political system. Amongst, the core system refers to the system represented by institutions such as the National People’s Congress. In our country, core political system includes the possession and application of basic civil rights determined by the Constitution, set of principles regarding state power, basic civil rights safeguarded by the Constitution, national institutions and their organization, function and functional procedure established by the Constitution. Constitutional principles closely related to civil life, system of basic rights protection, NPC system, Executive system and Judicial system are all basic components of the core political system of our nation. The auxiliary political system mentioned is a term relative to the core system. It generally refers to that category of system that is within the constitutional framework but outside of the NPC system, its main characteristic is: 1) the Constitution has recognized such system (for example the preamble of the Constitution confirmed the “political consultation system of multi-party cooperation” which “will exist and develop in a long period of time”) but nor the Constitution or other laws have directly recognized that the relevant actors are in possession of such rights or are given of such power (in terms of functional authority and limits to the authority); 2) some institutional arrangements are formed as a result of the interaction between citizens’ who insists some kind of basic rights and the state which bears responsibilities to respond, for example the petitioning system (its constitutional legal source comes from article 41 of our Constitution). There are many auxiliary political systems in our country, the political consultation system has the highest standing, the petitioning system is perhaps only second to the political consultation system, it is therefore also another important component of the auxiliary system of our country.

The common property of the core political system and auxiliary political system is that they are both within the framework of a nation’s constitution. Their differences are as following: 1) the core system has well-established and direct constitutional and legal basis, auxiliary political system has only partially established and indirect or unspecific constitutional or legal basis; 2) core political system has rights and power determined by the Constitution and other laws, as for the auxiliary system nor the Constitution or other laws have determined if any rights is enjoyed or power is possessed by the relevant actors of the system. Therefore the criteria to utilized to distinguish between the core political system and auxiliary political system is not to look at whether they are law related, but to assess whether they have full legal basis, well-established constitutional or statutory status of rights and power.

Of course, the auxiliary political system in or country, both the political consultation system and the petitioning system have some normative documents of different levels as their basis, but this basis cannot provide them with core system status. Regarding the political consultation system the Constitution affirms in its preamble: “the multi-party cooperation and Political Consultation System lead by the Chinese Communist Party will exist and develop for a long period of time.” According to this we can say that the multi-party cooperation and political consultation system are political systems determined by the Constitution, but since nor the Constitution or other laws have provided the Political Consultative Conference at various level the status of state organ, or conferred the Conference the possession or execution of state power and rights, the Political Consultative Conference thus does not belong to the core political system of our nation, it is only an important component of the auxiliary system. As for the petition system, the Constitution has never mentioned the expression “Xingfang” (Petitioning) , we can only deduce from the provisions of Article 41 of the Constitution the meaning of petitioning. Article 41 of the Constitution provides that: “Citizens of the People's Republic of China have the right to criticize and make suggestions to any state organ or functionary. Citizens have the right to make to relevant state organs complaints and charges against, or exposures of, violation of the law or dereliction of duty by any state organ or functionary; but fabrication or distortion of facts with the intention of libel or frame-up is prohibited. In case of complaints, charges or exposures made by citizens, the state organ concerned must deal with them in a responsible manner after ascertaining the facts. No one may suppress such complaints, charges and exposures, or retaliate against the citizens making them.” It can be seen that, from the prospective of citizens, the relevant provisions of the Constitution did not recognize or regulate the petitioning or petitioning activities; at best it only implied the possibility for citizens to exercise fundamental rights by way of petitioning or petitioning activity. From the state perspective, the relevant provisions of the Constitution did not directly affirmed petitioning behavior, and the Constitution and laws have not had direct regulations to confirm and specify the organization and activities of the respondents to petitioners, and therefore there would not be such notion that the Constitution and laws have granted petitioning organs functional power. In these respects, the current Constitution so regulated, the 1954 Constitution, the 1975 Constitution, the Constitution of 1978 and laws established according to the respective Constitution all regulated in this same way.

Of course, there are already administrative norms that are used to regulate citizen’s petitioning and response of the state organs, such as the “Regulations on Petitioning” established by the State Council, and numerous local norms established at provincial/regional and municipal level. But these normative documents, after all, are only regulations below the authority of the law, they are not real laws as defined by the Constitution therefore their existence only shows that there are some support given by normative documents of lower status to the petitioning of citizens and response of public institutions, it cannot prove that the petitioning system is a component of our core political system.

Based on the above mentioned situation and the principle of the Article 5 of the current constitution “to implement the rule of law, and build a socialist country ruled by law,” it seems we can obtain the following points of consensus:

1) Withinthe framework of our Constitution, with respect to the core political system,the petitioning s-system can only be considered part of the auxiliary system tothe core system. Therefore, it must be well distinguished the role played byeach system in the relationship between the two systems, the existence anddevelopment of the petitioning system have to comply with and serve to the needof the existence and development of the core system.

2) Withinthe framework of our Constitution, functionally speaking, the petitioning systemis only complementary to the core system, or a lubricant to the functioning ofthe core system, the auxiliary system should not rival the core system. Undergeneral circumstances, the petitioning system should not replace or partiallysubstitute the function of the core system in promoting justice, or even becomeobstacles to the normal functioning of the core system.

3) Since thepetitioning system is something that falls outside of the core politicalsystem, its actual application depends on its own status and its cooperativesituation with the core system. If the petitioning system cooperates well withthe core system, then they will complement each other. But it would not benormal if they do not cooperate in harmony, causing the petitioning system tocreate damages to the core system and value of justice the core systemrepresents. If such conflicts happen, adjustments of the petitioning systemshould be made in accordance with the need of the core system.

4) Petitioningis a form or method to possess and apply the basic right provided by theArticle 41 of the Constitution, but it is not a basic right itself or aspecific component of a basic right. There is scholar that is inclined toconceptualize or deduce the basic right of the Article 41 of the Constitutionas the “Petitioning Right,”[4]but this view has no constitutional basis or legal basis. Academically, it isnot yet seen any scholar who provided proves of the petitioning as a certaintype of basic rights. To consider petitioning as a “right” causes the suspicionthat the status of the petitioning and governmental response to such activitiesis being inappropriately elevated through artificial manners.

5) Atcertain stages of development, the demand for petitioning might be high and thepetitioning system might occupy a relevant role within the framework of theconstitution. This kind of situation only indicates that the core politicalsystem has not yet been well established to bear the function to promotejustice as it is designed to. The incompleteness of the core system isgenerally demonstrated as the partial implementation of the Constitution, poorconditions of basic civil right protection, scares number of forms of democracyand inadequate rule of law.

(Pix (c) Larry Catá Backer 2012)

2) The roots of the expansion of the petitioning system and its once reciprocal translocation with the core political system

We’ve said that the relationship between the core political and petitioning system is a relationship between the main and auxiliary actors, according to the provision and regulations of the Constitutions and laws. However due to complex social political reasons, it is not always like that in our nation’s history. In fact, after the ten year turmoil of the Cultural Revolution, for a while there was in the society cases of some systems belonging to the core political system translocated reciprocally with the petitioning system. This situation is worth of our attention and reflections. We should admit that it would have been normal if this kind of situation happened in the early time when the regime was newly founded.[5] Happening twenty years after the establishment of the regime, then, it shows severe level of malpractice. It is however more important to know that the above mentioned is not the normal mode to promote justice, under a normal mode, a national relies on the core political system to achieve social justice, the auxiliary system is only there to add complementary functions.

Due to historical conditions specific to China, the petitioning system already appeared in the early 1950s, almost at the same time of the birth of the People’s Republic. According to some research, the initial form of the petitioning system started in the Secretariat Division of the General Office of the Chinese Communist Party, the main task of the Division was to manage the letters written by ordinary people to the central leadership and receive petitioners, acting as secretaries.[6]

It is not until many many years after that the petitioning system expanded its organization to the various levels of state organs, and extended functionally to domains like democratic supervision and civil rights remedies. In June 7 1957 the Government Administration Council (the later State Council---translator) promulgated the “Decision on how to Process Letters from the People and Reception of the People.” Between 1954 and 1957 due to the problems caused by the Collectivization and Anti-Rightist Campaigns, the total number of petitions increased tremendously, more than 50 institutions or departments of the central government or party committee have established petitioning organs. According to statistics, the number of processed petitions in 1956 by the Secretary Office of the State Council was approximately equal to 2.5 times the number of cases processed from July 1951 to June 1954, and in the time period between January 1957 and September the number doubled compared to that of the same period in 1956. The increase in number of petitions occurred in organs of all regions and governmental departments.[7] By September 1963, the CCP Central Committee and the State Council jointly issued the “Notice on the Strengthening of the Management of Letters and Visits from the People”. Up to this point we can say that China's petitioning system has been formed. However, at that stage, the status of the petitioning system was not yet a prominent one.

After ten years of turmoil of the Cultural Revolution, between 1979 -1981 petitioning once replaced the position of the core political system in various dispute resolution systems, becoming the de facto central link of the Chinese constitutional framework. After the Third Plenary Session of the 11th CCP Central Committee, hundreds of millions of citizens wrote letters or petitions requiring the rectification of miscarriages of justice occurred in PRC’s history and the implementation of the Party’s policy which supported the rectification. The petition organs of the central government, in the year 1979 alone, processed up to 1.27 million letters of visits; at the end of the same year, the central government has also set up a “Petitioning Problem Processing Team”, deploying about 200,000 cadres in the country to deal with petitions and resolving historical issues (generally “political issues” are formed after PRC’s foundation, especially during various political campaigns and the Cultural Revolution---translator).[8] It is unforeseen the number of petitions and petitioners, as well as the number of cadres the state employed to process such petitions in the three-year period between 1979 and 1981.

It was during that period that petitioning became the dominant form of the solution of disputes. In that period when the rectification of miscarriages of justice became the symbolic characteristic of social life, the majority of disputes were essentially resolved in the petitioning process. At that time, the role of the executive, judicial and other state dispute settlement organs, were often limited to complete the necessary legal procedures for petitioners following the decision or conclusion made by the petitioning organs of the Party, the former became a puppet or a rubber stamp to the latter, dispute settlement system provided by the Constitution became in reality the auxiliary system to the petitioning system. This rare case in history occurred primarily between 1979 and 1980.

The above description demonstrates that under the “Common Agreement,” the Constitution of 1954, the Constitution of 1975 and 1978 the dominant position of the core political system gradually degraded within the constitutional framework, so that in 1979, 1980, the auxiliary system of petitioning actually obtained the dominant status through reciprocal translocation with the core political system. After 1981, the petitioning system no longer occupied the dominant position within the constitutional framework and its dispute resolution function has also been shrinking, but it has been held in the framework of our Constitution with great importance even today.

Faced with this situation, it is inevitable to ask why was the petitioning system, not even the most important one within the auxiliary system, able to leap once to a de facto status even higher than the judiciary system in history and occupying such important position within our constitutional framework even today. I think, historically speaking, there are profound social political reasons why the status of the petitioning system in the framework of our Constitution has become so prominent, including the following several kinds:

1) Fordecades, the power in China has always been held in the central government andthere are scare local means and resources to resolve disputes. First of all,China has adopted a unitary system; the form of state structure has pushed the powerto be concentrated at the central government, only the central government,higher entities can solve problems that local or lower levels can’t solve. Accordingto the positioning of the Preamble to the Constitution and the Article 3 of theConstitution, China is an “unified multi-ethnic country," “the division offunctions and powers between the central and local state organs is guided bythe principle of giving full play to the initiative and enthusiasm of the localauthorities under the unified leadership of the central authorities." Evenif according to this provision this kind of system should be considered as a unitarysystem of democratic centralism, but since the “unified leadership of thecentral authorities” is the prerequisite and basis for “full play to theinitiative and enthusiasm of the local authorities” in reality the degree ofconcentration of power is even higher than a centralized unitary system statein general. The implementation of the unitary system added to the vastterritory and large population of China, makes the degree of powercentralization inevitably higher than normal. Secondly, the long-term implementation of the planned economic systemalso contributed to the concentration of power in the central government andhigher level authorities. As late as the adoption of the Seventh Amendment ofthe Constitution in 1993, China had always operated under the planned economic system;the characteristics of the planned economic system require the social andeconomic resource allocation be fundamentally governed by central stateagencies. Therefore, planned economy is the economy of power, more precisely,planned economy is the economy of the central administrative power

Itis common sense that whoever has the power concentrated in his hands holds thekey to solving problems. Evidently, in a highly centralized system, one wouldfind the easiest way to solve disputes in the lower or basic level through thecentral or higher level authorities.

2) There isa long-term lack of adequate and effective protection for many basic civilrights in the history (of the PRC—translator), there are severe tensionsbetween local officials and ordinary citizens, while abusive restrictions imposed on the field of free speechand press cause partial and untimely news coverage of serious local conflictsand malpractice, making almost impossible for the general mass to supervise thebehavior of public institutions and officials through news media that whenencountering injustice can only ask for help from higher level authorities. Inthis case, it is difficult to solve the problem through democratic channels andthe rule of law at the local level. Since the exposure of the problem is the prerequisiteto the solution, when citizen’s rights and freedom in the field of free speechand press are not fully protected, it is to mean that media will not be able topublish articles revealing misdeeds of the local public institutions andimportant officials, that malpractices cannot be exposed to the public andproblem solved locally, it is only at a higher level, sometimes as high as thecentral government that there is some greater hope for the solution.

3) There isa high degree of allocation plan of political resource, the NPC representativesand leaders of local organs of state at all levels are not elected incompetitive electoral system by attracting the electorates’ votes, but to alarge extent by top-down decisions. In this system of political resourceallocation, NPC representatives and leaders of local state organs at all levelstend to react insensitively to the desires and preferences of the citizens,voters or the general public, or can even take an indifferent attitude sincethere will be no significant political consequences, causing the lack ofrepresentative function and representativeness within the NPC system. This hasdetermined the insufficiency of interest expression function and consultativedecision-making function of the NPC at various level; it has also caused theleaders of local state organs to first consider the wishes of the higherauthorities instead of the voters’. A high degree of political resourceallocation plan is a match to the characteristics of exercising a high degreeof centralization on economic allocation of resources under the plannedeconomy.

4) It isdifficult for judicial and procuratorial organs to exercise judicial power andprocuratorial power independently, judicial authorities lack a public image of neutralityand fairness and public trust of their investigations, it is especiallydifficult to implement justice in the lower-level administrative areas. The"Common Agreement" of 1949 only provided to “establish laws and rulesto protect the people, build a judicial system of the people,” withoutmentioning the issue of independent exercise of powers by judicial organs. Northe 1975 Constitution or the 1978 Constitution mentioned such issues. Article78 of the 1954 Constitution provided that "The People's Court isindependent of the trials and only obeys to the law,” but the reality is that independenttrial has not been implemented. Moreover, since 1966, the Constitution in thenext 10 years failed as a whole.

Article126 of the current Constitution passed in 1982 provides: “the people's courtsshall, in accordance with the law, exercise judicial power independently andare not subject to interference by administrative organs, public organizationsor individuals." Article 131 of the Constitution had similar provisions onthe Procuratorate. These provisions left room for the ruling party to lead judicialinstitutions and the NPC's supervision on the Judiciary, while rising thecomplex issue of how to manage the relationship between local party organs, NPCand judiciary institutions in accordance with the Constitution. The 1982Constitution has been adopted for nearly 28 years, but regarding this issue weare still in the process of difficult exploration, the independence necessaryfor judicial institutions to exercise its function and powers still lacks a system-specificprotection, the Judiciary branch as a whole has not been capable of establishingsufficient authority. The authority of the Judiciary branch, fundamentallyspeaking, does not depend on the size of the coercive power that judicial organshold in their hands, but by the level of independence and fairness of their decision,it comes from the conviction in the heart of the citizens.

When therule of man rather than the rule of law becomes the general political setting, thesupremacy of the Constitution and laws cannot be effectively established, considerablenumber of social disputes cannot be resolved on the basis of the rule of lawand within the framework of the legal system, then they will in turn seek forremedies from the petitioning system which carries strong characteristics ofthe rule of man. In many cases, petitioning is to ask for top to bottominterventions by powerful high-level authorities or even central state organsand its functionaries, going beyond the statutory powers and legal procedures. Oneof the characteristics of the rule of man is the existence and exercise of publicpower beyond the law. By itself, it seems that greater extrajudicial powerwould make the resolutions to specific disputes come easier, but institutionallyspeaking, the resulting negative impact would be invariably greater than itspositive meaning, it is a truth repeatedly proved by human experiences ofmanaging state affairs. The rule of man can sometimes resolve disputes, but therule-of-man approach leads to even great number of disputes; the petitioning systemthus is itself a manufacturer of large number of petitions. Moreover, whetherthe problems involved in a petition can be solve, to a large extent, depends onthe degree of concern and intensity of pressure exerted by petitioners. Often thehigher petitioners brought the problems to the greater chance they have ofsolving them. “Making no trouble no solution, little trouble little solution,big trouble big solution,” this type of folk doggerels in their specific sensecan truly reflect the reality of the situations in the society. The existenceof such petitioning mechanism is per sean important cause for the formation of large number of petitions.

Thirtyyears have passed since the early 1980s, direct driving forces and causes thatdetermine the formation and development of the petitioning system have haddramatic changes, but in general no fundamental changes deep down in the rootoccurred. Among the traditional motivations that caused the expansion of thepetitioning system, the economic system is the only one that has hadsignificant changes. Planned economic system is practically abolished; themarket economic system has been largely in place, despite the fact that in ourcountry the degree of state intervention in economic life is much higher comparedwith Europe and the United States.

In addition, ourConstitution established at the end of the last century the general directionof “implementing the rule of law and building a socialist country under therule of law,” which morally and practically denied the traditional statecraftbased on the rule of man. It also gives a complete change of scenario to thedirection of the elaboration of the core political system. Of course, in thepractical legal life, problems like: to what extent is the rule of man denied,what part of the content or practices of the rule of man are specificallyrejected, how to demarcate the boundaries between the rule of man and the ruleof law, will all be topics of long-standing controversy. But it seems that wecan believe that the results of debates will come to agree on that the boundariesof the rule of man concept will be gradually extended, the boundaries of theconcept of the rule of law gradually shirked, and a considerable portion of petitioningand processing activities will be excluded from the scope of the rule of lawconcept. In these 30 years, factors belonging to the core political system havealso had improvements or modifications, but these improvements andmodifications only contributed to more comprehensive forms and morestandardized operating procedures, there is less substantive changes of thesystem, there is even some deterioration in certain aspects, such as the competitivenessin the election of the NPC representatives at various levels which has onlydecreased instead of increasing in the past 30 years.

(Pix (c) Larry Catá Backer 2012)

[1] The administrative system for hearingcomplaints and grievances from individuals in the People’s Republic ofChina.------ Translator

[2] Ying Xin, “Petition as Special AdministrativeRemedies,” Faxue Yanjiu (Jurisprudential Studies), 2004, 3^rd Issue. ??????????????????????????2004??3?

[3] New Office of the Chinese State Council: “2009Development of Human Rights Conditions in China,” 26 October 2010. ??????????2009????????????2010?10?26?

[4]See Liu Dasheng, The Realization of Petitioning and the Resolution ofRespondents’ Pressure, Zhongguo Gaige(Reforms in China) 2005, 5^th Issue. ?????????????????????????????2005 ?????

[5]Evidences show, after the October Revolution, demand for petitioning occurredin Soviet Russia, Lenin personally drafted documents to regulate Soviet stateorgan’s reception of petitions, and received in person hundreds of petitioners.

See “CompleteWork of Lenin,”Remin Press, 1956, p 330;

Genkina Esther B, “Lenin’s State Affairs,”China reminUniversity Press, 1982. P.517

?????????28???????1956???330??

[??]???????????????????????1982???517??

[6]The PetitioningWorking Group: “Investigation Report Regarding Petitioning at BasicAdministrative Levels”Offical Publication of Sichuan Party School, 2005, 4thissues. ?????????????????????????????????????(?????)?2005??4???

[7]SeeDiao Jiewei, “a Concise Hisotry of the People’s Petitioning,” Beijing XueyuanPress, 1996, p.75.

??????????????????????1996???75??

[8]XinghuaNews Agency, Wei Wu, “The Petitioning System being Continuously Improved in 60Years Since the Foundation of the New China,” http://www.sina.com.cn,21 September 2009 ” ????????????60?????????????http://www.sina.com.cn,2009?09?21??

TRYING TO SAVE THEIR SEATS

lferrara@FNFllp.com (Lucas A. Ferrara) — Thu, 22 Mar 2012 14:30:00 GMT

President Obama may not need his own TV ads. He could just replay the Republican debates, 30 seconds at a time.

The Republicans would have left the U.S. auto industry to die, but demand tax breaks for oil companies. They support President Bush's tax cuts for the wealthy, but won't cut payroll taxes for the middle class.

They're always too ready to go to war on women's health - but they're terrified of Rush Limbaugh.

No matter how extreme Republicans get, Democratic victory won't come without a fight. Karl Rove and his supporters will spend tens of millions to put Republicans back in charge.

Our Senate majority hangs in the balance. Republicans only need four of the 23 Democratic seats up this year.

Right now, you can help hold the Senate by helping us make the DSCC's $1 million goal before the March 31 end-of-quarter FEC deadline. Missing that goal could be all it takes to put those four crucial seats at risk.

Click here to rush $5, $10 or more to the DSCC before midnight on March 31. The extremists have taken over the Republican Party, and we just can't afford to put them back in charge.

The other side will have all the Super PAC money they need to attack our Senate candidates and tear down President Obama.

I won't take it easy. I don't want to let the Republicans have even the smallest advantage. And neither should you.

I'll stand and fight every single day to win Michigan for President Obama and re-elect my friend Debbie Stabenow. And I'll do whatever I can to help Democrats across the map, from Elizabeth Warren in Massachusetts to Tammy Baldwin in Wisconsin to Shelley Berkley in Nevada.

I hope you'll get invested in this campaign right away. Please give $5, $10 or whatever you can to help the DSCC's drive to their $1 million end-of-quarter goal. It's the best way to keep the Senate in Democratic hands this fall.

Remember, Republicans are eager to take over the Senate so they can have total control of Congress and ram through their reckless agenda.

They'll cut health care for seniors and education for kids. They'll cut job training for the middle class and slash environmental safeguards that keep our air and water clean.

I'll do everything I can to stop that from happening, and I know you will, too. Together, we can meet every one of the DSCC's goals and get organized to re-elect President Obama and keep our Senate majority.

Sincerely,

Carl Levin

Part XXV—Zhiwei Tong (???) Series: Petitioning System and the Constitution of China (Part III)

lcb911@gmail.com (Larry Catá Backer) — Thu, 22 Mar 2012 14:27:34 GMT

(Zhiwei Tong, PIX (c) Larry Catá Backer)

For 2012, this site introduces the thought of Zhiwei Tong (???),one of the most innovative scholars of constitutional law in China. Professor Tong has been developing his thought in part in a essay site that wasstarted in 2010. See, Larry Catá Backer, Introducing a New Essay Site on Chinese Law by Zhiwei Tong,Law at the End of the Day, Oct. 16,2010. Professor Tong is on the faculty of law at EastChina University of Political Science and Law. He is the Chairman of the Constitution Branch of the Shanghai Law Society andthe Vice Chairman of the Constitution Branch of the ChinaLaw Society.

The Zhiwei Tong (???) Series focuses on translating some ofProfessor Tong's work on issues of criminal law and justice in China, mattersthat touch on core constitutional issues. Each of the posting willinclude an English translation from the original Chinese, the Chinese originaland a link to the original essay site. Many of the essays will includeannotations that may also be of interest. I hope those of you who areinterested in Chinese legal issues will find these materials, hard to get inEnglish, of use. I am grateful to my research assistants, YiYang Cao and Zhichao Yi fortheir able work in translating these essays.

TABLE OF CONTENTS FOR THE SERIES AVAILABLE HERE.

(Pix (c) Larry Catá Backer 2012)

Part XXV—Zhiwei Tong (???) Series: Petitioning System and the Constitution of China (Part III)
First Published March 19, 2011
Part I of this essay was published at Part XV—Zhiwei Tong (???) Series: The Petitioning System and the Constitution of China):
Part II of this essay was published at Part XXIV—Zhiwei Tong (???) Series: Petitioning System and the Constitution of China (Part II).

* * * * *

5)Strategies to solve problems created by petitioning

What are the petitioning problems? The term “petitioningproblems” mainly refers to the set of pressure and stress brought about bypetitioning visits conducted by citizens, legal persons or other organizationwithout following statutory dispute-resolution procedure and by receptions andprocessing of petitioning visits by relevant public institutions that wouldcreate damages to the status and authority of the core political system.

Petitioning problems have two major forms: one form consists of the pressure and stress brought about by visitsconducted by citizens, legal persons and other organization going around ordisordering statutory dispute-resolution procedures; the other form consists ofthe pressure and stress caused by the inefficiency of the core political systemwhich forces problems, that should be solved by the main channels of the coresystem, to rush into the petitioning channel and seek remedies through thepetitioning system. The cause for this type of pressure and stress can bedescribed by “overload for auxiliary system as the core system lacks relevantfunctions.” Therefore, the expression “solve petitioning problems” in thisarticle refers to the elimination and resolution of the two above mentionednegative forms of petitioning, it does not mean to eliminate petitioning orreception of petitions. In reality, it is possible to find to some extentphenomena regarding petitioning similar to those mentioned in this article inany countries under the rule of law nowadays, the difference is that people usedifferent language or terms to conceptualize these phenomena. Therefore,petitioning is normal, the auxiliary function of the petitioning system and processingof petitions without harm to the core political system can strengthen theconstitutional framework.

Radically speaking, the only way to solve petitioningproblems is to build and improve the functional capabilities of the core system;there are no better ways beside this.

In order to enhance the functional capabilities of ourcountry’s justice-promotion system as a whole, it is necessary to form specificconsensus on its reform and construction, based on the clear understanding ofthe relationship between the core system and the petitioning system.Admittedly, in past decades, different mechanisms were applied and coordinatedinappropriately during the justice-promotion process guided by the core andauxiliary systems, causing conflicts and competition between the core andauxiliary systems. Opinion holders with different views on the petitioning systemhave all noticed the above point, and have all tried to provide a prescriptionof their own to solve petitioning problems.

Some researchers of the petitioning system have providedmany prescriptions, but generally these prescriptions do not look verysymptomatic. As stated, expansionists hope to elevate the legal status of andadd functional power to petitioning organs in order to solve disputes broughtthrough petitioning. If this method of strengthening the petitioning system isimposed, then perhaps it will relatively speaking solve accumulated disputes inthe short run with efficiency, but measures of this type will certainly inducemore dispute-resolution seekers to present their problems to the petitioningsystem instead of statutory dispute-resolution systems, causing even morepetitions. Moreover, adding more functional power to petitioning organs whichhas a zero-sum relationship with the core system will reduce unavoidably thepower and justice-promotion function of state organs and their working bodiesestablished in accordance with the Constitution and laws. As regardingabolitionists, despite their clear and courageous solution proposed in regardto petitioning problems, their proposals are unattached to the reality ofcontemporary China, or might not even be pertinent to the need of future China.In the long run, the presence of auxiliary system is necessary and beneficialto the stability of the core political system and its full exercise offunctions. The fact that many countries under advanced rule of law haveparliamentary supervision organs or official reception organs for appeals bycitizens, explain to a certain degree my argument.

Seeing fromthe result of researches so far, part of the suggestions by holders ofreformist view on the petitioning system has better reference value than otherschools of thoughts. Reformist scholars proposed that in order to solvepetitioning problems, it is not only necessary to reconstruct and renew thepetitioning system, but also necessary to reconstruct and renew the entiredispute-resolution and remedy-seeking mechanism. Their reforms include: unifycurrent petitioning organs that are too scattered by establishing a nationwidecomputer network system; establish parliamentary supervision or executivesupervision system similar to foreign countries in order to coordinate thepetitioning works in various departments of various regions; amending the lawto expand the scope of administrative reconsideration and administrativelitigation; establish a number of specialized administrative tribunals,specialized in disputes such as land expropriation, housing demolition, givefull play to the role of NPC representatives in connecting with their voters.[i] Other reformist scholars propose to considerthe reforms of the petitioning system in association with the construction ofnational constitutional politics and political modernization by setting themedium-term policy for the temporary solution of petitioning problems as“strengthen the responsibility and ability of judicial organs at various levelsto receive complaints and appeals by citizens as well as to process suchcases,” and by setting the long term policy for the fundamental solution ofpetitioning system as “abolish petitioning organs in all departments ofgovernments at all levels, concentrate petitioning to the NPC of variouslevels, supervise the work of thegovernment, court and the procuratorate through the NPC and establishsystematic organizations that express interests of the people.”[ii] These understandings showthe comprehensiveness of reformists’ observation and awareness. Their proposalfor reform is better targeted and has stronger feasibility, it also includethoughts to enhance the construction of the legal system in order to reduce thereliance on the petitioning system in the process of promoting justice.However, it is probably due to the difference in academic emphasis that theyhave not conducted a division of the Chinese constitutional framework into thecore political system and auxiliary system, nor have they discussed therelationship of the petitioning system to the core system as part of theauxiliary system. Due to this reason, they have never well explained theinternal connections between the construction and reforms of the core systemand the development of the petitioning system, thus no systematic andconstructive opinions were proposed regarding the management of therelationship between these two systems belonging to two different legalstatuses.

From thepoint of view of the constitution and core-system auxiliary theory, regardingthe reforms of the petitioning system, whether at present time or long term, wecan only develop them towards the direction of the enhancement of the corepolitical system. Perhaps, comparatively speaking this is the most suitable wayto solve petitioning problems and enhance fundamentally the constitutionalframework of our country.

But what concrete steps must befollowed to advance the construction or reform of the core system in order toradically solve petitioning problems and enhance the function of theconstitutional framework? Evidently, there is nothing easier than providing anoversimplified prescription, and there is nothing more meaningless than doingso as well. I think, speaking for jurisprudential researchers, knowing what todo concretely is not important, it is essentially important to make a proper estimationon the direction of development of the interactive relationship between thepetitioning system and the core system in association with the specificity andlong term necessity of the conditional framework of China. In this regard,since I have already made similar discourses, in this article I would only liketo express the following few points as reference for relevant organizations andpeople who concern about the issue:

1) The application and reform of thepetitioning system has to be considered under the framework of theconstitution. Under this framework, the petitioning system is a part of theauxiliary system; it is subordinate to the core system; its construction orreform has to obey and serve to the construction and reform of the core system,its relationship to the core system should be arranged in accordance with thisunderstanding. If this logic is correct, then we cannot stay out of suspicionregarding the appropriateness of some expressions that are still currentlyquite popular. For example, the reasonability of the expression “legalizationof the petitioning system” that appears often on media is very muchdoubtful, because this expression is nodifferent than elevating the petitioning system , a component of the auxiliarysystem, to the same level as the core political system. But the question isthat why can we not enhance the functions of the constitutional frameworkthrough the construction and improvement of the core system rather thanelevating the status of the auxiliary system? Moreover, proposing the “legalizationof the petitioning system” is in reality to change the power distribution amongstate organs at various levels provided by the current constitution, therefore,the implementation process of such proposal would also be the process in whichthe core system is weakened or harmed. Other examples are the expression “MagnaReception” and the method of establishing joint petition-processing organsunifying power of two or more regional state organs in order to solve disputes.[iii] These actions areagainst the spirits of independence of the court and procuratorate, and willresult in the strengthening of the auxiliary system while weakening the coresystem.

2) The fundamental way to solve petitioningproblems is to construct, reform and improve the core system as well as toelevate its justice-promotion functions. The construction, reform andimprovement of the core system involve many issues regarding specificinstitutional construction. Amongst, the most important topic is to elevate thelevel of civil rights protection, especially the protection of private property,free speech and publication. Regarding the freedom of speech and publication,for example, Premier Wen Jiabao demanded in the “Government Work Report”delivered on the Third Meeting of the Eleventh Session of the NPC : “to createconditions for the people to criticize and supervise the government , at thesame time give full play to the supervisory role of the news media, let thepower run under sunshine.”[iv] This is a remarkableexpression, but these are only words spoken by him on behalf of the highestexecutive organ of the state, in reality, all public organs should be under thesupervision of citizens and news media. It should be created a condition inwhich media can, on legal basis, publish reports criticizing or even revealingthe dark side of local public organs and their leaders, related disputes shouldbe resolved through judicial ways when they arise.

The solution to petitioning problems has to rely on the construction ofthe structure of the form of democracy and distribution of legal powerssuitable to the characteristics of the market economy. Market economy is asystem in which the market plays the basic role in the distribution of economicresources in a society, in correlation, the principles of political and legallife should be consistent with the principles of economic life, that is to saythe distribution of political and legal resources is done through the competitionas that of the market. This task contains the following contents:

1) Constructionof democratic institutions within the ruling party. Democratization of politicalparties is the prerequisite and basis for the democratization of the state, itis also the political basis on which state organs at various level caneffectively reflect popular opinion. According to the principle that thedistribution of political and legal resources is consistent with thedistribution of social economic resources, members of the committee leadershipat various levels of the ruling party and candidates nominated for leadershippositions of state organs by the ruling party should all go through competitionbefore becoming elected , every ordinary party member should have rights todirectly elect members of the party leadership and participate in the electionto determine party’s nomination of candidates for leadership positions of stateorgans.

2) Legalization,standardization and procedure establishment of the relationship between Party’sorganizations at various levels and corresponding state organs. The report ofCCP’s Seventeenth Assembly emphasizes that the Party should maintain the basicpolicy of running the country in accordance with law, elevate the ability torule in accordance with law, “promote institutionalization, standardization andprocedure establishment of socialist democratic politics in order to providepolitical and legal protection for the continued stability of the Party andState.”[v] In this regard, the main problem we face nowis that there is no constitutional or specific legal provision that govern the relationship between the organs of theruling party and state organs, this is an important problem that should besolved immediately.

3) Directand orderly competitive elections of NPC representatives at all levels, thestanding committee, and main leaders of the Government, Court and Procuratorateat all levels. The reason to form this competitive electoral system is to impelthose who hold and apply public authority to be responsible to their voters andprotect these voters with law. The first action to be taken is to holdconcretely competitive elections of leaders of local state organs, byimplementing the current “Local People's Congress and People's GovernmentOrganization Law”, making single-candidate election rare exception or isolatecase.

4) Althoughthe power distribution model between the central government and localgovernment as well as between superior levels and inferior levels of stateorgans belong to the scope of national organization, it is determined by thelevel of democratization of its society. In this regard, conducting a reformcharacterized by the transfer of power towards lower level of the government isan important condition to the solution of petitioning problems.

What has the most directmeaning to the solution of petitioning problem is to elevate the authority andthe public trust of judicial organs, the court especially. Authority and publictrust of judicial organs are the soft resources accumulated through years ofindependent exercise of functional power. In the past 30 years after the“Opening Up and Reform ,” the judicial authority and public trust in ourcountry has both gained and weakened, as a whole it is still in seriousshortage. This situation of the judicial system is not only a huge potentialthreat to the stability of the nation, but also a fundamental cause of theformation and development of petitioning problems. Justice in our country needsmostly an image of independent exercise of functional power and neutrality.Therefore, the leadership of the ruling party should be able to notice thedifference of the judiciary branch compared to the Legislature and theExecutive, and change the myopic utilitarian attitude.

3) Before the construction and reform ofthe core political system has reached effective results, the constitutionalframework of our country has no other choice but to rely somewhat on thepetitioning system. It is impossible to solve petitioning problems without theelevation of the level of civil rights protection, democratization within theruling party, competitive election of NPC representatives and leaders of stateorgans at various levels, as well as effective protection of judicialindependence. It is thus also meaningless to discuss the weakening of thepetitioning system in such circumstances. In this situation, relying on thepetitioning system and allowing it to interfere with the tasks or sometimessubstitute the function of the core political system are objective necessitiesindependent of human will.

Of course, when forced to rely somewhat on petitioning system, theprinciple is that harms to the authority and the status of the core systemshould be maintained at a minimum level. In our country, there is an unbalanceddevelopment of the core political system geographically and also in terms oftime, therefore , in some regions, at a certain time, it is not absolutelyimpossible for individuals in charge to reduce the harm of petitioningreception and process to the core system close to zero while managing to obtainsocial justice.

4) Undoubtedly, based on the developmenttrend of the constitutional framework in our country, the petitioning systemshould soon dilute or demise. Most of its powers, or even all of its powersshould be gradually overtaken by the core political system. The ChineseConstitution has not only created the core political system, it has alsoconferred all powers entrusted by the people to various bodies included withinthe scope of the core system, these bodies are the National People’s Congressand local People’s Congress.[vi] Therefore, according tothe Constitution of our country and principles it provided, the core politicalsystem bears the entire constitutional responsibility in promoting justicesince the very beginning; therefore it should assume the entire function of thenational constitutional framework. Turning our sight to the auxiliary system,although the preamble of the Consecution has confirmed that “the Political Consultativewill exists and develop for a long period of time”, the Constitution has nevergranted the Political Consultative Committee any state power; as regarding thepetitioning system, the Constitution has not even mentioned the word “Xinfang”(petitioning), nor any law has had a provision mentioning the word. Therefore,seeing form the view of the Constitution and laws, it is improper to attributetoo much justice-promotion functions to the petitioning system.

The dilution of the petitioningsystem should be conducted gradually. The first step is to abolish the reception of petitionsregarding cases ruled by the second instance or retrial of the court.Petitioning regarding legislative bodies should be done through voter receptionpath by NPC representatives. Petitions regarding executive organs generallyhave greater reasonability, they may exist for a much longer time, thereforethis part of discussion is postponed till later.

5) In order to obtain the best efficacy of thecurrent constitutional framework, a clear placement of the relationship between thearrangement of the petitioning system and the reform and construction of thecore system must be made at a comprehensive scale. For more than a decade, whathas been missing in the research of the petitioning system and management ofpetitions is the clear placement of the petitioning system as part of theauxiliary system, based on the division of the core and auxiliary system withinthe framework of our Constitution. Unclear placement of petitioning system hascaused uncoordinated or even conflicting situation between the development ofthe petitioning system and the reform and construction of the core system;[vii] it has also left to thepublic impressions an image of unpreparedness, partiality and confusion ofrelevant parties. In order to avoidrepeated occurrences of this type and change the passive environment regardingpetitioning problems, it is extremely necessary to place the petitioning systemin the auxiliary system and limit its function within the auxiliary system.This is a question of understanding or question of theory.

On theone hand, whether in our country or any other country, the core system aloneshould be capable enough to solve the majority of social disputes and realizethe level of social justice that matches the stage of its social development; onthe other hand, it is very difficult for the core system of any country tocarry the entire load of responsibility of promoting social justice without thesupport of the auxiliary system. Conjecturing with common sense, if a countryover-relied on the auxiliary system, then it means that this country’s coresystem is not strong and efficient enough; it has to be further strengthenedand reformed systematically. Associating this with the reality in our country,if there is need to strengthen the constitutional framework in China, the firstconcern should be on the strength of the core system, only after consideringthe core system that it would secondly come to consider whether to seekassistance form the petitioning system or evaluate whether it should beenhanced or not. Same reason, if the constitutional framework of our nationdemonstrated great demand for petitioning system, then that demonstration isonly the superficial appearance; it is covering the reality that the coresystem necessitates urgent enhancement and reforms.

Theauthor thinks, the justice-promotion model based on the proper placement forboth the core system and petitioning system should guide the future of reformof the petitioning system. The characteristic of this model is to determinewith clarity that the core system is the main body in terms of structure andfunction in the constitutional framework; the petitioning system and othercomponent of the auxiliary system are only at a position of assistance. Theformer is an institution provided by the Constitution and laws, the latter isnot provided by the legal system thus extrajudicial and subordinate to theformer. Under this model, the connection between the core system andpetitioning system should be linked by normative documents lower than statutorylaws, for example administrative regulations, regional regulations and judicialexplanations. It can be said that this is the most suitable model to thecurrent constitution and relevant laws of our country, and the only model thatthe author can agree with as a supporter of the core-system auxiliarytheory.

6) It is necessary to reform petition managementmechanism. The direction of the reform should be pointed at the elimination ofthe harms the petitioning system creates to the authority and efficacy of the coresystem. According to the provisions and spirits of the Constitutions and laws,the role of the core system and petitioning system is very clear, that is: theformer is the main body of the constitutional framework, the latter issubordinate to the former; the former is recognized by the Constitution andlaws, the latter is subordinate to the auxiliary system established bynormative documents inferior to laws and the Constitution. However in practice,the difference of status and legal boundary between the core system andpetitioning system are often neglected in our country, causing the formation ofa confusing mixture of the two systems, and in the process of justice promotionthe two systems sometimes benefit mutually and sometimes result in zero-sum game.The consequence is: on one side the lack of efficacy of the core system causesthe birth of a large quantity of petitions, resulting in the over-reliance onthe petitioning system when seeking justice; on the other side the petitioningsystem complements the functions and efficacy of the core system, however itharms and weakens the core system when providing complementary assistance inimplementing social justice.

Under the current petition managementmechanism, institutional elements of the petitioning system that have actuallymade their way to the scope of the functions of the core system generally havea zero-sum relationship with the core system. During the procedure of justice promotion,the competition between the two systems is also of zero-sum nature.

Following the thinking pathdescribed earlier, it is possible to divide logically the interactionalrelationship of the core system and petitioning system into two models: one isthe “contained and bounded” model, in this model, although the establishment ofpetitioning organs does not have legal basis, there are however administrativeregulation, regional regulation and other normative documents that serve asnormative basis, activities of the petitioning organs in this model fullyrespect the status and power of statutory organs; the other one is the “wildand confusion” model, its maincharacteristics are the establishment and use of extrajudicial organs which go aroundstatutory organs and procedure in order to solve petitioning disputes. Thetypical behavior of the “wild and confusion” model is the establishment ofpetitioning organs that possess powers even beyond state organs without anynormative basis. This behavior generally harms the functions and powers ofstatutory state organs.[viii] In the “contained andbounded” model the petitioning system provides complementary and auxiliaryfunctions to the core system. In the “wild and confusion” model, however theeffect of the petitioning system has two sides: it does promote justice, but atthe same time it has the side effect of harming the status and authority of thecore system. We can see this kind of two-sidedness during certain jointreception of petitions by state organs. For example, as reported, in July 132008, the party secretary and major of a certain city, along with other eightmembers of the city leadership “hold a joint conference to study fourteen grouppetitions. They listened to individual report of each petition, analyzed themindividually and provided solution specific to each petition. At the end allfourteen petitions received clear solution methods and assignment of officialsin charge of the solution.” [ix] In the context of thereport, it looks like they have not only processed one litigation, the eightmembers of the city leadership might include also the head of the city courtand procuratorate. This is to say that this type of joint conference is notonly a joint operation between the Party and the local administration, it alsohas the nature of joint operation that includes the Party, local administrationand judicial organs, it is a super-joint operation. However, a temporary jointorgan like this, is not consistent with at least the following principle andspirits of the Constitution: rule of low, constitutional and statutoryassignment of powers, independence of the court, independence of theprocuratorate. Therefore it is not an exaggeration to conclude that this typeof extrajudicial organization has harmed the authority and status of the coresystem when processing and receiving petitions.

Hence, at least from what isseen in the reality of the current stage, what first faces the reform of thepetitioning system is to eliminate organs whose powers and functions arewithout legal basis and whose processing of petitions harms the core system. Inthis regard, what is often seen are instances when higher level officials issueorders beyond their statutory power and when organs without statutory basis providefinal judgment to disputes ignoring the function and procedure of state organs.These actions are against the principle of the rule of law.

If politicians and legalists in our country can have a moreprofound understanding on the zero-sum relationship between the petitioningsystem and core system, and reform it appropriately considering the overallenvironment, perhaps it will not be particularly difficult to radicallyeliminate or ease petitioning problems in the society.

(Pix (c) Larry Catá Backer 2012)

Endnotes

[i] Jiang Mingan, “Reforming the Petitioning System toRefresh Dispute-Resolution and Remedy-Seeking Mechanism in our Country, ”Public Law Website of Peking University, May 19 2005. ???:???????????????????????????2005?5?19?? http://www.publiclaw.cn/article/Details.asp?NewsId=471&Classid=&ClassName=

[ii] Same as note 14 in part II, Yu Jianrong. ???[14],?????

[iii] In recent years, beside the Committee of Politicaland Legal Affairs of local Party Committee, there are also petitioning organsthat jointly represent local administration, court and procuratorate withdifferent names such as “Office of Stability Maintenance,” “Office ofPracuratorial Supervision” or “Office of Coordination.” These offices oftenprocess petitions of extensive importance with substantial decision and thenenforce the decision in name of the court. This is evidently against provisionsof Article 126 of the Constitution regarding t

Law students interested in London this summer?

Thu, 22 Mar 2012 14:25:00 GMT

London is calling... Applications for the 21st Century Law Practice Summer Program in London (a partnership between Michigan State University Law and the University of Westminister Law) are due March 25 (though if you miss the deadline, email me at rk@law.msu.edu to see if we still have space--as of now a handful of spots remain open). The program runs June 17-July 2, and includes a first-of-its-kind, intensive study of technology, innovation, regulation, entrepreneurship and the international legal marketplace. The two weeks of classes will culminate in LawTechCampLondon, an event bringing together industry innovators, regulators, academics, and students. Apply here.

Protecting Client Files in the Digital Age and Grabbing and Leaving

dave@sctriallaw.com (David) — Thu, 22 Mar 2012 14:12:42 GMT

The allegation is that before he left a former partner used Dropbox and thumbdrives to take copies of 70,000 client files. While understandably the firm is suing him, should the clients be concerned at the apparent ease with which this...

No Breach of Contract Claim from Mid-Stream Change of WSJ Online Pricing – Lebowitz v. Dow Jones

venkat@focallaw.com (Venkat) — Thu, 22 Mar 2012 14:08:06 GMT

[Post by Venkat Balasubramani] Lebowitz v. Dow Jones & Co., 06 Civ. 2198 (MGC) (S.D.N.Y.; Mar. 12, 2012) Dow Jones...

[Post by Venkat Balasubramani]

Lebowitz v. Dow Jones & Co., 06 Civ. 2198 (MGC) (S.D.N.Y.; Mar. 12, 2012)

Dow Jones operates WSJ Online. Historically, it offered WSJ Online subscribers access to WSJ Online and Barron’s Online. At some point, Dow Jones decided to spin-off Barron’s. It gave existing subscribers the choice between accessing Barron’s instead of WSJ Online or accessing WSJ Online and paying a separate fee (pro-rated and up to a maximum of $20) to access Barron’s.

Plaintiffs brought a putative class action, arguing that a mid-stream change in the subscription price was a breach of the subscriber agreement. Alternatively, plaintiffs argued that if the agreement was interpreted to allow Dow Jones to unilaterally change the price this would render the contract illusory. The contract provision allowed Dow Jones to:

change the fees and charges then in effect, or add new fees or charges, by giving [subscribers] notice in advance.

The court disagrees, noting that contractual provisions which allow unilateral changes are not illusory as long as the right to make these changes are constrained in some manner. Looking to case law in New York, the court says that requiring an obligor to exercise its discretion in a reasonable manner or a manner evincing good faith sufficiently constrains the obligor’s discretion. The court says this is the case here:

there is no evidence that Dow Jones used the discontinuance provision to deprive plaintiffs of an unreasonably large part of WSJ Online’s content, and there is no reason to interpret this provision as permitting such extreme behavior. Dow Jones acted reasonably, and therefore this provison of the subscriber agreement is not illusory.

Plaintiffs also argued that Dow Jones failed to give advance notice of the price change and this constituted a breach. Dow Jones had provided notice via a “pop-up” box, which indicated that it was conveying an “IMPORTANT NOTICE TO READERS.” This box appeared on each homepage. When users clicked on this box, a notice appeared which informed subscribers of the spin-off and the fact that the pricing would be changing.

There have been a slew of disputes involving contracts which one party says they can modify at any time. Harris v. Blockbuster presented this problem and Eric’s advice was on point: “STOP PUTTING CLAUSES INTO YOUR CONTRACTS THAT SAY YOU CAN AMEND THE CONTRACT AT ANY TIME IN YOUR SOLE DISCRETION BY POSTING THE REVISED TERMS TO THE WEBSITE” It doesn’t look like companies have heeded this advice and thus continue to struggle with arguments from consumers that this type of a provision renders contract illusory. Dow Jones dodged a bullet here, and although I’ll leave the contract law 101 deep dive to others, the result here did not comport with basic common sense and equity. It’s as if you sign up to on a month-long plan to purchase a particular type of combo meal deal at McDonald’s and halfway through they come along and change up the combination. Rather than forcing customers to pick between WSJ Online or Barron’s going forward, Dow Jones could have just refunded a portion of the subscription fees. The court’s decision deprives plaintiffs of this choice. It wasn't clear from the opinion, but it seemed like the decision was made just to separate the two subscriptions--the order did not discuss some compelling reason (other than subscriptions) why Dow Jones made the decision.

Another interesting part of the dispute was how Dow Jones dealt with notice. Dow Jones has to provide subscribers notice in order for the revised terms to be effective. This is another problem area for companies. (See Eric’s post on the Douglas v. Talk America case, where the Ninth Circuit struck down a contract amendment due to failed notice: “Ninth Circuit Strikes Down Contract Amendment Without Notice--Douglas v. Talk America.” Some suggestions as to notice are discussed in that post.) The court here spends two sentences on the adequacy of notice via a pop-up box. The pop-up box method of notice would work in many cases, but it was surprising to see the court ignore the details of the notification here. I suspect other courts would not always be so approving of notice via this method, absent consideration of other facts, such as the size of the box and the overall user experience.

Previous posts:

Vendor Fails to Form Either an Online or Paper Contract With Customers--Kwan v. Clearwire
Zynga Wins Arbitration Ruling on "Special Offer" Class Claims Based on Concepcion -- Swift v. Zynga
Judge Can't Decide if Facebook's User Agreement is a Browsewrap, But He Enforces It Anyways--Fteja v. Facebook
Stop Saying "We Can Amend This Agreement Whenever We Want"!--Harris v. Blockbuster
Facebook's "Browsewrap" Enforced Against Kids--EKD v. Facebook

Suspension for Facebook/YouTube Rap Video Critical of High School Coach Does not Violate First Amendment – Bell v. Itawamba County School Board

venkat@focallaw.com (Venkat) — Thu, 22 Mar 2012 14:02:10 GMT

[Post by Venkat Balasubramani] Bell v. Itawamba County School Board, 11CV00056-NBB-DAS (N.D. Miss.; Mar. 15, 2012) [.pdf] Bell posted a...

[Post by Venkat Balasubramani]

Bell v. Itawamba County School Board, 11CV00056-NBB-DAS (N.D. Miss.; Mar. 15, 2012) [.pdf]

Bell posted a rap video while he was a senior at Itawamba Agricultural School. The video, which was shared which over 1300 of his Facebook friends, criticized two coaches at the school and included the following phrases:

looking down girls’ shirts / drool running down your mouth / messing with the wrong one / gonna get a pistol down your mouth
middle fingers up if you can’t stand that nigga / middle fingers up if you want to cap that nigga

After the video came to the attention of the school, Bell was pulled out of class and met with the principal. Bell acknowledged making the video, but he said that the allegations of improper contact with female students were true. After a disciplinary hearing (where Bell was represented by counsel), Bell was suspended for seven days and transferred to an “alternative school” for the remaining five weeks of the term. The school district concluded that Bell “threatened, harassed, and intimidated school employees with the publication of his song.” Bell sued, alleging violations of his First Amendment and Due Process rights.

Off-campus conduct versus in-school conduct:

As in many school discipline cases based on social networking posts, the first question was whether the school had the authority to discipline Bell for conduct that ostensibly occurred off-campus. The court acknowledges mixed precedent on this issue, but says that the Supreme Court’s decision in Tinker v. Des Moines Independent Community School District supports discipline for off-campus conduct. I’m not familiar with the precedent in this area, but Tinker involved on-campus speech, and I think it’s a stretch to see Tinker as clearly standing for the proposition that off-campus speech can be regulated under the same First Amendment standards as those articulated in Tinker. (The Supreme Court cases following Tinker have all dealt with on-campus or school sanctioned events.) That said, my instinct is that this may ultimately be a tough battle for students to win, at least where the speech at issue relates to the school, teachers, or administrators. (See Eric's post on Layshock and Blue Mountain for differing results on this issue from a pair of Third Circuit cases: Third Circuit Schizophrenia Over Student Discipline for Fake MySpace Profiles.)

Whether the suspension was appropriate under Tinker:

The court says that high school students do not enjoy the same First Amendment rights as adults or people outside the school setting. According to the court, a school may discipline a student for speech where disruption is “reasonably foreseeable.” The court frames the issue as whether (1) Bell’s song “caused or tended to cause a material and/or substantial disruption” and (2) whether “it was reasonably foreseeable to school officials that the song would cause a material and/or substantial disruption.” Evidence in the record showed that one of the coaches heard of the song through his wife and he had also discussed the song with several students. After listening to the song, he complained to the principal and also testified that the song (and exposure of the song) had affected his teaching style. The other coach also testified as to supposed adverse effects to his teaching. This evidence, along with the fact that the song was published to Bell’s 1300 friends and uploaded to YouTube, where it would be exposed to an “unlimited internet audience,” leads the court to conclude that the school’s forecast of substantial disruption was reasonable. The court also affirms the school district’s conclusion that posting the song constituted “harassment and intimidation of teachers and possible threats against teachers.” Finally, the court says that the individual actors are entitled to qualified immunity.

The threat issue seemed like a red herring. Given the incidents of school violence, schools should undoubtedly take any and all threats seriously, but you have to wonder whether the courts (and the school) looked at the video and took it out of context. It’s a rap video…by a high school senior…posted to Facebook. Were the coaches seriously threatened by it? Did the student intend it to be a threat? Unlikely. The First Amendment allows schools to punish students based on speech that does not reach the level of a “true threat,” but it was strange to see the court sign off on the school’s conclusion that Bell threatened (or harassed or intimidated) the coaches based on the video. (Then again, even outside the school context, courts have grown increasingly willing to call YouTube and Facebook videos threats which can support criminal prosecutions. See Court Finds That Threatening Video Posted to YouTube and Facebook Can Constitute a "True Threat" -- US v. Jeffries; Federal Prosecution Over "Threats" on Craigslist – US v. Stock.)

The court’s conclusion on the disruption issue was also debatable. Tinker has spawned a morass of lower court decisions which struggle with whether Tinker required a “substantial threat of disruption” or a “reasonable forecast” of disruption and what sort of an evidentiary burden the school district bears in this context. Lower court cases go both ways on this, but here there didn’t seem like there was much—apart from the teachers' own testimony that the video had an ‘adverse effect’ on their teaching style—to support the conclusion that there was a credible threat of disruption.

Finally, the qualified immunity decision was a tough hurdle for Allen. I didn’t check the complaint to see whether he brought claims for injunctive relief (clearing his record) and nominal damages, but I wondered whether this strategy could have avoided the harsh effects of qualified immunity.

School administrators should be able to punish students for causing disruption, and criticizing teachers, administrators and other students should warrant discipline in some instances, but I wonder if the court's ruling gives short shrift to the First Amendment rights of students. If all that is required is some self-serving allegation of an "adverse effect" on teaching style, this means that a teacher can shut down student speech any time the student says something critical about the teacher. The court's stamp of approval of the school's conclusion that the video harassed and intimidated the teacher also made me think that the court didn't have a very expansive view of the scope of student speech rights. The final thing that made me pause is that the student said the allegations of inappropriate contact between the coaches and students were truthful, and the court did not comment on this at all. Posting a rap song on Facebook and YouTube isn't exactly the most appropriate way to bring something like this to the attention of school administrators, but if the allegations were true, this should change the First Amendment calculus somewhat.

In the old days, this would have been nothing more than hallway gossip, which many would view as harmless. Maybe Bell would have found a way to convey his message through the school newspaper or in an assembly. The same message can now be broadcast (as the court notes) to an "unlimited internet audience." Indeed, Bell had 1300 friends, and his posting the video is a "publication" in the best and worst senses. It's protected by the First Amendment, but it reaches the bulk of the school community in ways that might be impossible through hallway gossip or even through the school newspaper or a school assembly. We're not used to students having a better ability to reach other students than the administration has. Students also don't need to go through any channels to get their message out there. Maybe this shift in power causes administrators to overreact somewhat?

Eric posted about a pair of Third Circuit cases a couple of years ago. Not much has changed since then, and I think we can expect to see a ton of litigation around this issue, with little predictability. The Supreme Court recently denied cert on a pair of school discipline cases, so we'll have to wait awhile to get clarity from the Court, to the extent the Court can be expected to articulate a bright line rule of any sort.

Added: here's a link to what looks like the video in question: "T-Bizzle - PSK da Truth" (h/t Brad Wassom, who also covers the case).

Other coverage:

Ed Week: Judge Denies Speech Protection to Student's Rap Song
Student Press Law Center: Judge upholds punishment of Miss. student who posted rap song on Facebook

THREE JUDGE PANEL FAVORS NEW YORK VOTERS

lferrara@FNFllp.com (Lucas A. Ferrara) — Thu, 22 Mar 2012 14:00:00 GMT

On March 2, 2012. we reported that Newman Ferrara attorneys Randolph McLaughlin and Jeffrey Norton intervened on behalf of New York African-American voters in the case Favors v. Cuomo.

After the 2010 Census, New York was obligated to draw new legislative districts to accurately reflect population shifts while still giving communities of minority voters an opportunity to elect a representative of their choice.

New York failed to adopt new maps and Newman Ferrara went to the drawing board.

Earlier this week, a three-judge panel approved new Congressional redistricting maps for New York State.

The panel's Opinion and Order noted: "In the face of an outdated congressional districting plan, the application of which would plainly violate the requirements of federal law, and of the New York legislature's complete abdication of its congressional redistricting duty, this court is obliged not only to recognize a violation of law but also to create a new redistricting plan to ensure against the disenfranchisement of state voters in the 2012 congressional elections."

These newly adopted Congressional maps determine the Congressional districts for the upcoming 2012 Congressional elections

To view a copy of the full Opinion and Order, click here: Favors v. Cuomo

Non-Liturgical Navy Chaplains Can Move Ahead On Some Claims, But No Reconsideration of Establishment Clause Ruling

religionclause@bex.net (Howard M. Friedman) — Thu, 22 Mar 2012 13:52:42 GMT

In In re Navy Chaplaincy, (D DC, March 21, 2012), is another chapter in the long-running litigation by chaplains, endorsing agencies and churches claiming that the Navy discriminates against members of “non-liturgical” religions in its promotion, retention and separation of chaplains. In this decision, the DC federal district court refused to amend its 2002 decision that plaintiffs had not shown that there was a violation of the Establishment Clause when the Navy allowed chaplains to rate other chaplains and permitted more than one chaplain to sit on a chaplain selection board. It also dismissed several other claims. However the court permitted plaintiffs to move ahead with various challenges to the Navy's chaplaincy accession, retention, promotion and selective early retirement process, as well as challenges to alleged prejudice in the disciplinary system. (See prior related posting.)

Thursday round-up

jharrow@akingump.com (Jason Harrow) — Thu, 22 Mar 2012 13:51:21 GMT

The Court heard oral arguments in two cases yesterday. In Reichle v. Howards, a case arising from the Secret Service’s arrest of a man who touched former Vice President Dick Cheney and made an anti-war comment in a Colorado shopping mall, the Court considered whether the existence of probable cause to make an arrest bars [...]

The Court heard oral arguments in two cases yesterday. In Reichle v. Howards, a case arising from the Secret Service’s arrest of a man who touched former Vice President Dick Cheney and made an anti-war comment in a Colorado shopping mall, the Court considered whether the existence of probable cause to make an arrest bars a First Amendment retaliatory arrest claim and whether the Tenth Circuit erred by denying qualified immunity to the arresting agents. In his report on the oral argument for this blog, Lyle Denniston indicates that the Justices seemed sympathetic to the agents – a view shared in coverage by Adam Liptak of the New York Times, Mike Sacks of the Huffington Post, and Mark Sherman of the Associated Press. Bob Drummond of Bloomberg, Warren Richey of the Christian Science Monitor, and Steven D. Schwinn of Constitutional Law Prof Blog also have coverage of the case, which Nina Totenberg previewed yesterday for NPR .

In Vazquez v. United States, the Justices heard oral argument on the scope of the “harmless error” rule of the Federal Rules of Civil Procedure 52(a) and 28 U.S.C. § 2111. At Sentencing Law and Policy, Douglas A. Berman contends that Court’s decision regarding application of harmless error in non-traditional contexts, such as appealed convictions following plea bargains, will affect “how consequential any ruling in Vasquez will become.”

The Justices also announced three opinions yesterday, the details of which Kali covered here. In Missouri v. Frye, the Court held – by a vote of five to four – that the Sixth Amendment right to effective assistance of counsel extends to the consideration of plea offers that lapse or are rejected and that such a right applies to “all ‘critical’ stages of the criminal proceedings.” And in Lafler v. Cooper, the Court held (by the same five-to-four vote) that where counsel’s ineffective advice led to an offer’s rejection, and where the prejudice alleged is having to stand trial, a defendant must show that but for the ineffective advice, there is a reasonable probability that the plea offer would have been presented to the court, that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer’s terms would have been less severe than under the actual judgment and sentence imposed. Coverage of and commentary on the two decisions come from Greg Stohr of Bloomberg, Nina Totenberg of NPR, Adam Liptak of the New York Times, Bill Mears of CNN, Robert Barnes of the Washington Post, David G. Savage of the Los Angeles Times, Mike Sacks of the Huffington Post, James Vicini of Reuters, Jesse J. Holland of the Associated Press, Debra Cassens Weiss of the ABA Journal, Jess Bravin of the Wall Street Journal (subscription required), and Orin Kerr of the Volokh Conspiracy. Tricia Bishop of the Baltimore Sun reports on the decisions’ possible effect on a convicted child rapist in Baltimore.

In Sackett v. EPA, a unanimous Court held that landowners may bring a civil action under the Administrative Procedure Act to challenge the EPA’s issuance of an administrative compliance order under Section 309 of the Clean Water Act requiring them to take certain actions with respect to their property. Lyle Denniston analyzes the opinion for this blog, with other coverage coming from Greg Stohr and Mark Drajem of Bloomberg, Robert Barnes and Juliet Eilperin of the Washington Post, Lawrence Hurley of E&E Greenwire, Bettina Boxall and David G. Savage of the Los Angeles Times, Warren Richey of the Christian Science Monitor, Ilya Somin and Jonathan H. Adler of the Volokh Conspiracy, Mark Sherman of the Associated Press, Debra Cassens Weiss of the ABA Journal, James Vicini of Reuters, Nina Totenberg and Steven Chen of NPR, and Mike Sacks of the Huffington Post. At Conglomerate, David Zaring considers what, if anything, the Court’s decision in Sackett means for the SEC.

Tuesday’s opinions in Mayo Collaborative Services v. Prometheus Laboratories, Martinez v. Ryan, and Coleman v. Court of Appeals of Maryland continue to generate coverage and commentary. Ronald Mann analyzes the opinion in Mayo for SCOTUSblog; meanwhile, at Alison Frankel’s On the Case blog for Reuters, Terry Baynes reports that “[l]awyers at the American Civil Liberties Union see the high court’s unanimous decision as a good omen for their own case challenging the patentability of human genes.” Timothy B. Lee of Cato@Liberty, Sandra S. Park at ACSblog, and Michael Risch at Madisonian.net also comment on Mayo (hat-tip to Orin Kerr of the Volokh Conspiracy for the last link). At this blog, Steve Vladeck analyzes the Court’s opinion in Martinez, while Nina Totenberg and Steven Chen of NPR cover the decision in Coleman.

Finally, anticipation of next week’s arguments in the health care cases continued. At this blog, Kali linked to several longer advocacy pieces on the constitutionality of the Affordable Care Act, while Lyle previews the severability issue (which will be argued on Wednesday morning) for this blog. Oyez has an interactive tool explaining the procedural history of the litigation and providing video interviews on key issues, while at the Wall Street Journal (subscription required), Jess Bravin profiles the advocates in next week’s arguments. At The Atlantic, Jack Balkin predicts that the Court will not find the Act unconstitutional, but he also notes that “if all of the conservative justices believed that the health care bill was a harbinger of even more radical possibilities — a new era of mindless statism and pervasive socialism — they might seek to nip things in the bud, and risk the political consequences.” The editorial board of the Christian Science Monitor frames the health care debate as an issue of state sovereignty. Linda Greenhouse of the Opinionator blog of the New York Times, Mara Liasson of NPR, Jeffrey Young and Ruth Schulenberg at the Huffington Post, Ron Pollack and Wade Henderson at the Washington Post, Steve Inskeep and Ari Shapiro of NPR, Jonathan Cohn of the New Republic, David Bernstein at the JURIST Forum, and Douglas French at the Christian Science Monitor also have coverage.

Briefly:

At Forbes, Daniel Fisher contends that the Court’s unanimous opinions in in Sackett and Mayo “sent strong messages to Congress to clean up murky laws that brought these cases to their doorstep in the first place.”
At the ABA Journal, Debra Cassens Weiss looks back at Monday’s arguments in Southern Union Company v. United States.
Jack Elliot, Jr. of the Associated Press (via the Biloxi Sun-Herald) reports that a Mississippi death row inmate has asked the Court to stay his execution, which is scheduled for tonight.
In an op-ed for the Los Angeles Times, Erwin Chemerinsky and Eric J. Segall argue that the Court should lift its ban on video cameras.
Bonnie Goldstein of the Washington Post’s She The People blog looks at Tuesday’s arguments in Miller v. Alabama and Jackson v. Hobbs through the lens of the 1999 Jonesboro, Arkansas school shootings, during which four children were killed by two classmates.

In association with Bloomberg Law

New Issue: Journal of International Economic Law

jacob.cogan@uc.edu (Jacob Katz Cogan) — Thu, 22 Mar 2012 13:43:11 GMT

The latest issue of the Journal of International Economic Law (Vol. 15, no. 1, March 2012) is out. Contents include:

Norbert Seiler & Jelena Madir, Fight Against Corruption: Sanctions Regimes of Multilateral Development Banks
Chi Manjiao, China’s Participation in WTO Dispute Settlement Over the Past Decade: Experiences and Impacts
Julien Chaisse, Promises and Pitfalls of the European Union Policy on Foreign Investment—How will the New EU Competence on FDI affect the Emerging Global Regime?
Jan Kleinheisterkamp, Investment Protection and EU Law: The Intra- and Extra-EU Dimension of the Energy Charter Treaty
Joshua Meltzer, Climate Change and Trade—The EU Aviation Directive and the WTO
Emily Barrett Lydgate, Biofuels, Sustainability, and Trade-Related Regulatory Chill
Marek Martyniszyn, Export Cartels: Is it Legal to Target your Neighbour? Analysis in Light of Recent Case Law
Caroline Henckels, Indirect Expropriation and the Right to Regulate: Revisiting Proportionality Analysis and the Standard of Review in Investor-State Arbitration
Ma Qian, ‘Reasonable Period of Time’ in the WTO Dispute Settlement System
Sangeeta Khorana & Sujitha Subramanian, Potential Accession to the WTO Government Procurement Agreement: A Case-Study on India

Are SCOTUS rulings in Lafler and Frye as revolutionary as Gideon?

berman.43@osu.edu (Douglas A. Berman) — Thu, 22 Mar 2012 13:42:03 GMT

The question in the title of this post is prompted by a quote in Adam Liptak's coverage of the big Sixth Amendment rulings handed down by the Supreme Court yesterday in this front-page New York Times article. Here are snippets:...

Criminal defendants have a constitutional right to effective lawyers during plea negotiations, the Supreme Court ruled on Wednesday in a pair of 5-to-4 decisions that vastly expanded judges’ supervision of the criminal justice system.

The decisions mean that what used to be informal and unregulated deal making is now subject to new constraints when bad legal advice leads defendants to reject favorable plea offers....

The consequences of the two decisions are hard to predict because, as Justice Antonin Scalia said in a pair of dissents he summarized from the bench, “the court leaves all of this to be worked out in further litigation, which you can be sure there will be plenty of.”

Claims of ineffective assistance at trial are commonplace even though trials take place under a judge’s watchful eye. Challenges to plea agreements based on misconduct by defense lawyers will presumably be common as well, given how many more convictions follow guilty pleas and the fluid nature of plea negotiations.

Justice Scalia wrote that expanding constitutional protections to that realm “opens a whole new boutique of constitutional jurisprudence,” calling it “plea-bargaining law.”

Scholars agreed about its significance. “The Supreme Court’s decision in these two cases constitute the single greatest revolution in the criminal justice process since Gideon v. Wainwright provided indigents the right to counsel,” said Wesley M. Oliver, a law professor at Widener University, referring to the landmark 1963 decision.

Recent related posts:

In 5-4 split, Justice Kennedy give defendants right to counsel wins in Lafler and Frye
SCOTUS recognizes ineffective-assistance claims in Lafler and Frye! (guest post by Staphanos Bibas)

Colorado federal prosecutor explains to Boulder DA his pot prohibition plans

berman.43@osu.edu (Douglas A. Berman) — Thu, 22 Mar 2012 13:29:53 GMT

As reported in this prior post, Boulder's District Attorney last week wrote to Colorado's federal prosecutor in Colorado to urge him to stop threatening to prosecute medical-marijuana dispensaries abiding by state law. Now, as reported in this follow-up article, US Attorney John Walsh has written back to explain why he is so eager to have the federal war on drugs waged against some medical-marijuana dispensaries. Here is more:

In the letter to Garnett, Walsh reiterated that he decided to target dispensaries within 1,000 feet of schools after seeing evidence of a rise in youth marijuana use that coincided with the boom in medical-marijuana businesses in Colorado. "We concluded that our responsibility — as federal law enforcement officials and also as Coloradans living in the very Colorado communities impacted by these alarming trends — required a response," Walsh wrote to Garnett.

More than 20 dispensaries closed or moved after receiving letters from Walsh's office. Walsh told Garnett he plans to send more letters to other dispensaries until no such businesses remain in Colorado within 1,000 feet of schools. "This program," Walsh wrote, "is not at the direction of Washington, D.C., but at my direction as U.S. Attorney and as a Coloradan."

Colorado law places a 1,000-foot buffer between dispensaries and schools but also allows local governments to shrink that distance or grandfather in existing businesses. Medical-marijuana advocates say there is no evidence dispensaries — near schools or otherwise — are illegally selling to kids.

The fascinating full two-page letter from USA Walsh to the Boulder DA can be accessed here.

I would LOVE to hear from members of the federal Tea Party caucus (e.g., Michelle Bachmann) or from other Republicans who have stressed states rights to be free from federal overreach and over-regulation about this interesting spat over local pot policies. This dispute seems like an opportunity to discover whether some on the right who complain about the size and growth of the federal government are really troubled by all forms of big government or only those forms of big government that they do not agree with.

Recent related post:

Colorado DA tells federal prosecutor to stop being a buzz kill in Boulder

Joint Tax Committee Says 'Buffett Rule' Would Produce 'Meager' Tax Revenue

paul.caron@uc.edu (Paul L. Caron) — Thu, 22 Mar 2012 13:27:57 GMT

The Joint Commitee on Taxation yesterday reported that the "Buffett Rule" would generate less than $5 billion per year, less than 0.7% of the deficits projected under President Obama's budget (original letter; updated letter). From The Examiner: Associated Press Bloomberg CNN Memo from Sen. Hatch (Ranking Member, Senate Finance Committee)...

NOT IN THE INTEREST OF FULL DISCLOSURE

lferrara@FNFllp.com (Lucas A. Ferrara) — Thu, 22 Mar 2012 13:25:00 GMT

Unhappy with Sandals Resorts International's hiring policies, "jft3092@gmail.com" sent out an e-mail which described the company as a predatory entity which accepted Jamaican tax subsidies, yet considered locals unworthy of upper-level positions.

In response, Sandals filed a lawsuit asking the New York County Supreme Court for an order requiring Google to disclose "jft3092's" identity. When that request was denied, Sandals appealed.

In addition to the company failing to show how it was harmed by that email, the Appellate Division, First Department, thought the content wasn't actionable because it contained "constitutionally protected opinion." (The writing wasn't seen as defamatory because the author provided a series of links which not only supported his view of the company's practices but allowed the message's recipients to arrive at their own conclusions.)

That was no walk on the beach.

To view a copy of the Appellate Division's decision, please use this link: Sandals Resorts Intl. Ltd. v. Google, Inc.

New Yorker: The Things Rich People Do to Avoid Paying Taxes

paul.caron@uc.edu (Paul L. Caron) — Thu, 22 Mar 2012 13:23:36 GMT

The New Yorker, Tax Me if You Can: The Things Rich People Do to Avoid Paying Up, by James B. Stewart: Relatively scant media attention has been paid to residency requirements, even though enormous revenue is at stake. Tax audits and hearings are ordinarily confidential, but several published opinions and...

Legal Theory at the European University Institute in Fiesole

lsolum@gmail.com (Lawrence Solum) — Thu, 22 Mar 2012 13:23:17 GMT

This week I am teaching a short intensive course on Legal Theory at the European University Institute in Fiesole (near Florence). This is surely one of the most beautiful spots to study law on the planet--making it all the more unfortunate that my duties will consume almost all of the time that I'm here. The course covers a lot of ground--the emphasis is on developing a core set of theoretical perspectives and laying out a "legal theorists toolkit."

The photograph presents the view from the terrace near Professor Dennis Patterson's office.

Women @ ASIL (6th ed.)

Thu, 22 Mar 2012 13:21:01 GMT

IntLawGrrls is proud today to highlight women who will speak at next week's annual meeting of the American Society of International Law – as we have each year since our founding (here, here, her e, here, here, and he re).
This 106th gathering of the Society, entitled Confronting Complexity (prior posts available here), will take place at the Fairmont Hotel, 2401 M Street, N.W., Washington, D.C. Details and registration here.
The meeting kicks off with the Grotius Lecture next Wednesday, March 28. This year that lecture will be delivered by Jakob Kellenberger, President of the International Committee of the Red Cross – and, we're pleased to note, IntLawGrrls contributor Leila Nadya Sadat will serve as discussant.
Also of note is the annual WILIG luncheon, on Thursday, March 29. Featured will be another IntLawGrrls contributor, Mireille Delmas-Marty (far left) (prior posts), the Chair of Comparative Legal Studies and Internationalization of Law at Paris' Collège de France. Providing opening remarks before Mireille's talk – and her receipt of the 2012 Prominent Woman in International Law Award – will be U.S. Supreme Court Justice Stephen Breyer (near left), with whom Mireille has convened annual meetings of the Franco-American Network on the Internationalization of Law for the last several years. (credit for 2009 photo)
On Friday, March 30, meanwhile, Asma Jahangir (below left), of the AGHS Legal Aid Cell and formerly of the Supreme Court Bar Association of Pakistan and the Human Rights Commission of Pakistan, will deliver the keynote address at a luncheon marked her receipt of the 2012 Goler T. Butcher Medal, an honor whose namesake is an IntLawGrrls foremother. (photo credit) IntLawGrrls contributor Margaret McGuinness (St. Johns) will moderate.
Other events of note are the Thursday opening plenary, on military intervention and the law of peace, featuring U.N. Legal Counsel Patricia O'Brien (right) (photo credit); a Friday panel featuring the Presidents of the Hague-based International Criminal Tribunal for the former Yugoslavia, International Criminal Court, and International Court of Justice; and Friday panel on Syria, at which U.S. State Department Legal Adviser Harold Hongju Koh will speak.
Delighted to see from the program that, once again, there's much diversity in topics and presenters. Virtually all panels again have at least 1 woman participating, and many have many more. Particularly proud that so many persons featured are IntLawGrrls contributors!
Without further ado, here's this year's honor roll of Women @ ASIL:

Wednesday, March 28, 4:30 pm - 6:00 p.m.
? "'Confronting Complexity' -- in the context of contemporary international humanitarian law": IntLawGrrls contributor Leila Nadya Sadat (right) (Washington U.) as Grotius Lecture discussant.

Thursday, March 29, 9-10:30 a.m.
? Opening plenary, "Military Intervention and the International Law of Peace": Anne Orford (Melbourne), P atricia O'Brien (Under-Secretary General for Legal Affairs and U.N. Legal Counsel), and Rosa Brooks (Georgetown).

Thursday, March 29, 11-11:30 a.m.
? ASIL IDEAS talk, "Consent of the Networked: The Worldwide Struggle for Internet Freedom": Rebecca MacKinnon (right) (Global Voices) (photo credit)
? "The Emergence of a Human Right to Water and Sanitation: The Many Challenges": Audrey Gaughran (Amnesty International) and Patricia Jones (Environmental Justice Program, Unitarian Universalist Service Committee).

Thursday, March 29, 11:30 a.m.-1 p.m.
? "Developments in UN and Regional Bodies Addressing the Human Rights of LGBTI People": Rosa Celorio (Inter-American Commission on Human Rights).
? "An Emerging International Law of Migration": IntLawGrrls contributor Lesley Wexler (Illinois) and Jacqueline Bhabha (left) (Harvard). (photo credit)
? "Financial Crisis in the Eurozone": Anna Gelpern (American U.), Kathleen McNamara (Georgetown), and Valerie Rouxel-Laxton (Economic & Financial Affairs Section, European Union).
? "Courts, Commissions, and the Complexity of Claims Against States": Judge Joan E. Donoghue (right) (International Court of Justice).
? "New Voices I: Humanizing Conflict": IntLawGrrls contributor Anna Spain (Colorado-Boulder) on "Reshaping Sovereignty: What the Rise of Intra-State Conflict Means for International Law," and Lillian Aponte Miranda (Florida International) on "The Role of International Law in Intra-State Natural Resource Conflict: Sovereignty, Human Rights, and Development."

Thursday, March 29, 1 p.m.-3 p.m.
? WILIG Luncheon (described further above), giving the 2012 Prominent Woman in International Law Award to the luncheon speaker, IntLawGrrls contributor Mireille Delmas-Marty (Collège de France).

Thursday, March 29, 1:30-3 p.m.
? "Twenty Years after the Rio Earth Summit: What is the Agenda for the 2012 United Nations Conference on Sustainable Development?": IntLawGrrls contributor Rebecca Brat spies (CUNY).
? International Law Students Association Panel, "Conflicts in International Sports: London 2012": Angela Ciccolo (left) (Special Olympics) (photo credit) and Ank A. Santens (White & Case LLP).
? "Cyber-Security: Regulating Threats to the Internet Under International Law": Enek en Tikk-Ringas (U. Toronto); Susan W. Brenner (Dayton), moderator.

Thursday, March 29, 3:15-4:45 p.m.
? "International Humanitarian Law and New Technology": Claire Finkelstein (Pennsylvania), Cordula Droege (International Committee of the Red Cross), and Louise Doswald-Beck (left) (Graduate Institute of International and Development Studies, Geneva). (photo credit)
? "Sanctions in International Investment Law": Anna Joubin-Bret (Foley Hoag LLP) and Elizabeth Lin Forder (World Bank); Céline Lévesque (Ottawa), moderating.
? "Global Trade and Natural Capital: Ecosystems and Export-led Agricultural Strategies": Carmen Gonzalez (Seattle U.) and Tracey Epps (U. Otago/New Zealand Ministry of Foreign Affairs and Trade).
? "New Voices II: Bringing International Law Home: Clarifying the Complex Relationship Between International Norms and Domestic Change": IntLawGrrls contributor Alexandra Huneeus (Wisconsin) on "International Criminal Law by Other Means: Human Rights Review of National Prosecutions," Sophia L. R. Dawkins (Tufts) on "Stable and final? Arbitration of international boundary disputes in the case of state secession," and Katar ina Linos (California-Berkeley) on "Legislative Borrowing"; moderated by Anne-Marie Slaughter (Princeton).
? "Preparation of Cases before International Courts and Tribunals": Meg Kinnear (left) (Secretary-General, International Central for Settlement of Investment Disputes). (photo credit)
? "International Law and Its Discontents: The Normative Implications, and Strategic Opportunities, of Complexity": Jeanne M. Woods (Loyola-New Orleans) and Dianne Otto (Melbourne); moderated by IntLawGrrls contributor Barbara Stark (Hofstra).
? "Forgotten Sisters: Violence Against Women with Disabilities – Human Rights Law and Complex Identity Status" (a panel about which Hope Lewis has posted here and here): confirmed are Akiko Ito (left) (U.N. Secretariat for the Convention on the Rights of Persons with Disabilities), IntLawGrrls contributor Caroline Bettinger-López (Miami), and Julie Mertus (American U.); Stephanie Ortoleva (BlueLaw/Hawai'i) will moderate.

Friday, March 30, 9-10:30 a.m.
? "Late Breaking Panel: The United Nations and Syria: Changing Dynamics and Complexities" (further described at the top of this post): IntLawGrrls contributor Saira Mohamed (California-Berkeley).
? "Fact-Finding in Interstate Disputes" (further described at the top of this post): IntLawGrrls contributor Lucy F. Reed (right) (Freshfields Bruckhaus Deringer LLP) (photo credit) and Lisa Grosh (U.S. State Department); moderating will be Rosalyn Higgins (left) British Institute of International and Comparative Law, former ICJ President). (photo credit)
? "Indicators in International Law": Margaret Satterthwaite (NYU) and Sophie Pouget (World Bank).
? "New Voices from the New Professionals Interest Group": Kari Kammel (Independent Consultant on the Middle East) on "How to Improve Rule of Law Legitimacy: Case Study of Afghanistan and Iraq."
? "U.S. Non-Ratification of Environmental Treaties: Why Does It Happen and How Do We Cope?": Norine Kennedy (U.S. Council for International Business); Sandra Zellmer (Nebraska) will moderate.
? "Teaching International Law while Confronting Current Events: Balancing Past and Present": Deborah Pearlstein (Cardozo) and Sonia E. Rolland (Northeastern); moderating will be IntLawGrrls contributor Karen E. Bravo (Indiana-Indianapolis).
? "Trade in Commodities": Julia Ya Qin, Wayne State).

Friday, March 30, 11 a.m.-12:30 p.m.
? "The Emerging System of International Arbitration": Teresa Cheng (right) (Des Voeux Chambers, Hong Kong) and Anthea Roberts (Harvard); IntLawGrrls contributor Andrea K. Bjorklund (California-Davis/McGill) will moderate.
? "Annual Ben Ferencz Panel Discussion: Africa and the International Criminal Court": IntLawGrrls contributor Olivia Swaak-Goldman (Office of the Prosecutor, International Criminal Court).
? "Opting Against International Law in International Financial Regulation": Claire R. Kelley (Brooklyn) and Yesha Yadav (Vanderbilt).
? "Jus Post Bellum in the Age of Terrorism": IntLawGrrls contributors Jennifer Easterday (Grotius Centre, Leiden U.) and Fionnuala Ní Aoláin (Minnesota/Ulster); moderator will be Kristen Boon (Seton Hall).
? "Limitations on Freedom of Opinion and Expression: Growing Consensus or Hidden Fault Lines?": Paula Schriefer (Freedom House); IntLawGrrls contributor Charlotte Ku (Illinois) will moderate.

Friday, March 30, 12:30-2 p.m.
? Luncheon marking Goler T. Butcher Medalist (also described at the top of this post): 2012 honoree Asma Jahangir, of the AGHS Legal Aid Cell and formerly of the Supreme Court Bar Association of Pakistan and the Human Rights Commission of Pakistan, will deliver the keynote address in this event, whose namesake is an IntLawGrrls foremother. IntLawGrrls contributor Margaret McGuinness (St. Johns) will moderate.
? "New Trends in the Administration of Justice of International Organizations": Antigoni Axenidou (U.N. Office of Legal Affairs) and Maritza Struyvenberg (U.N. Office of Administration of Justice).
? "The Modern Positivist Response to Confronting Complexity in International Law": Noora Arajärvi (U. West Indies); moderator will be Anne Peters (Basel).
? "International Energy Governance": Gabrielle Marceau (World Trade Organization/Geneva U.), Yulia Selivanova (left) (Energy Charter Secretariat), and Yuka Fukunaga (Waseda U.).
? "UNCLOS Anniversary: What are the Challenges?": Catherine Redgwell (University College London) and Nilufer Oral (Istanbul Bilgi U.).

Friday, March 30, 2:15-3:45 p.m.
? "The Chevron-Ecuador Dispute: A Paradigm of Complexity": Judith Kimerling (CUNY) and Lucinda A. Low (Steptoe & Johnson LLP).
? "International Norm-Making on Forced Displacement: Challenges and Complexity": Agnes Hurwitz (U.N. Development Programme), Kate Jastram (California-Berkeley), and IntLawGrrls contributor Jane McAdam (U. New South Wales).
? "What Makes a State?": Lea Brilmayer (left) (Yale) and IntLawGrrls contributor Valerie C. Epps (Suffolk); moderator will be Karen Knop (Toronto).
? "International Human Rights Law, International Humanitarian Law, and Implications for Coalition Warfare": IntLawGrrls contributor Monica Hakimi (Michigan); moderating will be Ashley Deeks (Columbia).
? "Confronting Complexity in the Preservation of Cultural Property: Monuments, Archives, and History": Bonnie Czegledi (Czegledi Art Law); moderating will be Irina Tarsis (Cardozo).

Saturday, March 31, 9-10:30 a.m.
? "Imputed Liability in Alien Tort Litigation": IntLawGrrls contributor Ingrid Wuerth (Vanderbilt); IntLawGrrls contributor Chimène Keitner (California-Hastings) will moderate.
? "Ethics for Advocates in International Adjudication": IntLawGrrls contributor Catherine Rogers (Pennsylvania State), Yas Banifatemi (Shearman & Sterling LLP), and Margrete L. Stevens (King & Spalding).
? "Transitional Justice and the Arab Spring": IntLawGrrls contributor Karima Bennoune (Rutgers-Newark) and Mona Rishmawi (Office of the U.N. High Commissioner for Human Rights).
? "Global Environmental Protection and Transnational Conservation Contracts": Natasha Affolder (U. British Columbia) and Chantal Thomas (right) (Cornell). (photo credit)
? "Can Private International Law Play a Role to Foster the Rule of Law, Good Governance and Economic Development?": Louise Ellen Teitz (Hague Conference on Private International Law); moderator will be Lelia Mooney (Partners for Democratic Change).

Saturday, March 31, 11 a.m.-12:30 p.m.
? Closing Plenary, "Indigenous Peoples and International Law: A Conversation with UN Special Rapporteur James Anaya and Inter-American Commission Rapporteur Dinah Shelton" (left).

Obama's Budget Raises Taxes for 27% of Households

paul.caron@uc.edu (Paul L. Caron) — Thu, 22 Mar 2012 13:16:00 GMT

Tax Policy Center, Tax Proposals in the 2013 Budget: The Tax Policy Center has released a resource guide to the tax provisions of President Obama's 2013 Budget. The guide includes descriptions of the proposals, links to more detailed commentary on key provisions, and a new TPC distributional analysis of the...

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Obama's Budget Raises Taxes for 27% of Households