An interesting take on the ACA opinion: how it was written

Here's a link to an article that quotes a past-law clerk who has dissected the ACA dissent and concluded that Roberts couldn't go along with the mishmash of law (with a hearty dose of nonsense) the dissenters had thrown together:  http://www.thedailybeast.com/articles/2012/06/29/scalia.html.  Remember that law clerks are the ones who know what goes on in any one particular judge's chambers; they know their judge intimately and know that judge's thinking and writing style.  Again, I think Scalia has crossed the line into deciding cases before they come to him.

Read another article here, discussing how the dissenters continually refer to Ginsberg's concurring opinion as her "dissent."  It further suggests a change, and the author suggests some cold feelings on the bench.

More speculations:  http://www.volokh.com/2012/06/28/more-hints-that-roberts-switched-his-vote/

Social Media as the New Frontier in Ethics

Recently I attended a CLE in Ohio discussing the ethical issues for attorneys concerning social media.  I have to say that it really opened my eyes to what practicing lawyers are having to do these days in order to stay in the clear.  If anyone wants to hear the lecture, I recommend that you find out which local bar association is presenting Stuart Teicher's presentation  (Teicher is available at stuart@set-law.com and his website is www.sit-law.com).  The highlights that I took away from the program:

- there is an expectation that you will be knowledgeable and competent using social media (meaning, but not limited to Facebook, Twitter, LinkedIn, and blogs)
- your due diligence for a case now includes checking the parties' social media websites
- your confidentiality now includes making sure that you and your staff do not post about clients on social media websites without the client's consent
- you need to alert your clients about the ramifications of their postings on social media (he gave an example of a fourteen-year-old girl posting on facebook about her recent mediation and referencing a second doctor's report)
- you have an on-going ethical duty to stay abreast of the security measures taken when you use wireless internet to complete work (this includes your smartphones and ipads) AND when you save your work "in the cloud"
- you have an on-going duty to ensure that wherever you store client files (and this now includes electronic files) is secure enough so that the information will not be lost -- think of holding the information in escrow
- by providing legal opinions via blogs and then responding to any comments, you are potentially opening yourself up to creating attorney-client relationships AND potentially practicing law without a license wherever that person lives, depending on the amount of advice you give
- asking a person to consider hiring you for representation via GChat or Facebook Chat is not considered a violation of solicitation rules, according to Philadelphia Bar.  This cuts against the pure language of the rules, but the bar reasoned that the person is under no pressure to continue talking with you and can easily close the chat box.  Other bars may not decide the same way.
- your LinkedIn profile and your blog may be considered websites, which may then be considered advertising and fall under those restrictions.

This lecture definitely opened my eyes to the new requirements for professionalism and ethics.  I highly recommend that any practicing attorney and any law professor listen to it.  

Confession through a friend

This is a blog started by my friend Zakiya, who just graduated from business school and will soon be moving from Oregon to Atlanta for her new job.  I'm so proud of her and all she's accomplished.  Her first entry is about contemplating suicide and coming through that pain.  She talks about her struggles after her dad died.  The death of our parents is strangely what connected us after having known each other for many years.  As someone who frequently contemplated committing suicide or hurting myself, especially in high school and after my mom's death, and now being someone who recognizes my need for medication to stay safe, I encourage you to read what she's written and consider whether there is anyone who you think might need some help.  

Trouble in Mississippi for Women Needing Healthcare

Ahhh, Mississippi, you've got a law that's essentially threatening to shut down the one clinic providing abortions to women in the state.  (read the story here)  Well done with your attempts to push your uber-conservative beliefs on others.  This means that any poor (which is the majority of your state) or working woman would suffer an undue burden (see O'Connor's language in her dissent in Akron v. Akron Center for Reproductive Rights, 462 US 416 (1983), in her concurring in Roe v. Wade, 410 US 113 (1973), and in the plurality in Planned Parenthood v. Casey, 505 US 833 (1992)) when seeking such medical care.  Thank goodness the remaining clinic is going to fight this new law.  I pray (yes, I, a person supporting a woman's right to choose appropriate medical care for herself, pray and do so on a very regular basis) that the clinic is successful and can continue protecting women's health in Mississippi.  I'll be honest, you're kind of the state that scrapes the bottom of the barrel . . .  maybe it's time you try a new approach to governing and life.

Affordable Care Act survives! The Supreme Court regains its credability

SCOTUS upheld the constitutionality of the Affordable Care Act!  This is amazing, and it is truly a step forward for this country.  We need to gain control of our country's health care costs, and it is a concern for everyone.  I will blog more later . . . 

When one of the most conservative papers publishes an op-ed saying Scalia needs to go . . .

The Washington Post, widely known as a conservative newspaper, published an op-ed piece by E. J. Dionne, Jr., who argued that Scalia has reached the point of needing to step down due to conflicts and impartiality.  Scalia has become more overly-opinionated and essentially political as time has gone on, and he seems to be trying to transform his position on the court into a podium to espouse his views on President Obama's actions EVEN THOUGH THERE'S NO CASE ON THEM.  This is a HUGE no-no for judges.  They have to be very, very careful about ensuring that they remain impartial and judge cases purely on what is brought before them.  I suggest you (and Scalia) check it out:  WaPo op-ed

Loving some Barbara Kingsolver prose

I've loved Barbara Kingsolver for decades now (wow, am I getting that old?!?!?).  I love how she writes and what she writes about.  I just read her book of essays High Tide in Tucson (available from amazon.com at link) .  As you know, I like to mark really poignant phrases or sentences in the writing I read in an effort to help cultivate my own writing style.  Here are just some of the phrases and sentences I marked:

- on most important occasions, I cannot think how to respond, I simply do (8)
- to follow internal rhythms (8)
        --> this strikes me more now as I retype this because of my recent discussion with a good friend about her beginning to track her fertility cycle.  it is astounding how many women don't know about their own bodies.
- If we resent being bound by these ropes, the best hope is to seize them out like snakes, by the throat, look them in the eye and own up to their venom. (9)
- We invent the most outlandish intellectual grounds to justify discrimination. (9)
- Want is a thing that unfurls unbidden like fungus, opening large upon itself, stopless, filling the ski.  But needs, from one day to the next, are few enough to fit in a bucket, with room enough left to rattle like brittlebush in a dry wind. (13)
   --> this is a PERFECT quote for the ideas of wants v. needs that are where any policy discussion and conflict resolution should begin
- let me be a good animal today (13)
- what matter is that I do have sisters and tomato plants, the essential things (15)
- I have taught myself joy, over and over again. (15)
- "Female rain," it's called in the Navajo: the gentle, furtive rains that fall from overcast skies between November and March.  That was weather to drink and to grow on. (17)
- What we're waiting for now is male rain.  Big, booming wait-till-your-father-gets-home cloudbursts that bully up from Mexico and threaten to rip the sky. (18)
- thrillingly drenched (19)
- Where nature rubs belly to belly with subdivision and barrio, and coyotes take shortcuts through the back alleys. (20)
- What a relief, to relinquish ownership of unownable things. (33)
- Time and again I find myself writing love letters to my rural origins. (38)
- In the final accounting, a hundred different truths are likely to reside at any given address. (43)
- The crossing is worth the storm. (53)
- I'm very quickly remembering what school is about: two parts ABCs to fifty parts Where Do I Stand in the Great Pecking Order of Humankind? (58)
- Homemaking is moot if you're homeless. (62)
- in every profession, homewifery included, the necessity of feeling needed is the mother of inventive rules (63)
- I have friends and colleagues who talk to me about interesting things, and never carry concealed reptiles. (93)
- Like driving, parenting is a skill you learn by doing. . . . The skills you have going into it are hardly the point. (102-03)
- Children deprived --- of love, money, attention, or moral guidance -- grow up to have large and powerful needs. (104)
- If we intend to cleave like stubborn barnacles to our great American ethic of every nuclear family for itself, then each of us had better raise and educate offspring enough to give us each day, in our old age, our daily bread.  If we don't wish to live by bread alone, we'll need not only a farmer and a cook in the family but also a home repair specialist, an auto mechanic, an accountant, an import-export broker, a forest ranger, a therapist, an engineer, a musician, a poet, a tailor, a doctor, and at least three shifts of nurses.  If this seems impractical, then we can accept other people's kids into our lives, starting now. (105)
- Power, like space, it seemed to me, would always get used.  People expand and bloat to fill it.  (110)
- In the face of a thriving, particolored world, this narrow view is so picked and absurd I'm astonished that it gets airplay.  (136)
- To judge a family's value by its tidy symmetry is to purchase a book for its cover.  There's no moral authority there. (141)
- children love to run in packs (144)
- "books," as a category of papery things with the scent of mildew, are paddling up the same stream.  (153)
- A craving for adventure afflicts my restless bones like some mineral they are missing. (158)
- dark, leggy maple woods (170)
- Poverty rarely brings out the most generous human impulses, especially when it comes to environmental matters. (174)
- To love life, really, must mean caring not only for the garden plot but also the wilderness beyond the fence, beauty and mystery for their own sake, because of how meager a world would be without them. (205)

Shifting of economic power???

I just read this interesting article about how Africa (and yes, the author does point out that Africa is an extremely diverse continent and not a single country or even a generally unified continent) is rising.  It is developing a middle class, and it is beginning to take control of its natural resources and profit from them. The continent is beginning to recover from the centuries of abuse and plundering by Europeans, and it is beginning to take charge of its people in a responsible fashion.  Touching on the diversity issue, the continent runs from countries like Egypt and Libya, which are really much more Middle Eastern in culture, to Madagascar, which is still pretty wild, to Ghana, which is highly educated, to Somalia, which is ravaged by famine.  If the African countries are beginning to pull it together, I salute them, and I encourage them.  Europe is certainly struggling, and it is interesting to watch these long-standing colonies of places like Brazil and India develop into strong countries of their own.

On a related yet unfortunate note, I just read Charlayne Hunter-Gault's article "Violated Hopes" in The New Yorker's May 28, 2012, edition.  It focuses on the prevalence of rape of lesbians in South Africa.  I feel that by now, it is fairly well-known that South Africa has the highest rate of rapes in the world.  According to the article, in South Africa, a woman is raped every seventeen seconds, and obviously, the majority of rapes go unreported (one person speculated the report-rate is 1:9).  What is interesting is that, on its books, South Africa has progressive laws:   Following Mandela's 1996 election and sweeping reforms, "equality laws were tested and upheld in the courts, leading to equal protection for gays in the workplace.  Sodomy laws were overturned.  L.G.B.T.s gained rights in adoption, immigration, inheritance, and medical aid.  they were permitted to serve openly in the military, and to have their sex change recognized on identity documents.  The constitution mandated the creation of several state institutions to protect equal rights, including the Commission for Gender Equality and the South African Human Rights Commission.  In the fall of 2004, in response to an application brought by a lesbian couple, the Supreme Court of Appeal ruled that the common-law definition of marriage must include same-sex marriage.  In December, 2005, the Constitutional Court made any inferior status imposed on same-sex partners unconstitutional."  Then, as recently as 2011, South Africa introduced and voted for a resolution at the UN Human Rights Council to end "acts of violence and discrimination, in all regions of the world, committed against individuals because of their sexual orientation and general identity."  Despite these VERY progressive laws and public stances, South African men are raping South African lesbians in an attempt to "correct" them.  Women are being beaten, stabbed, and gang-raped.  Even when they report the abuse to the police, the police often do very little.  If the perpetrator is put on trial, there are accounts where he refuses to recant.  Obviously, the danger is heightened even more considering the prevalence of HIV in South Africa and the belief that if a man has sex with a virgin woman, he will cure himself of HIV.

Considering these two stories together, if South Africa wants to move onto a major economic stage and continue growing as a viable power, it will have to improve its rape (and murder, which I didn't even touch on) record/rate.  At this point, companies have no reason to move any of its current workers and their families to a country to be assaulted or murdered.  Additionally, unless it can verify the safety of its workers, the company will risk the world judging its policies purely by its location in such a violent place.  However, the argument is to be made that, if major companies begin moving into South Africa, they can begin changing the environment there and creating a safer country by providing people with "things they don't want to lose."  We know, as a societies, that people who have nothing to lose will commit crimes because the threat of jail or the like serves no deterrent.  However, if these people progress to having secure jobs and increasing their livelihoods, then they will have skin in the game  and not want to lose it.  Additionally, if lesbians become part of the workforce, they might be seen then as productive members of society and workplace partners, as opposed to outsiders or people to be victimized.  Furthermore, with more employment, people will have more of their time occupied, which then will also lead to lower crime:  they just won't have the time.  All just thoughts . . .  it's worth keeping these developments on the radar.

Citizens United -- how it came to be and what we're seeing now

As you know, I'm in the process of catching up on my New Yorkers.  In the May 21, 2012, edition, Jeffrey Toobin wrote a piece titled "Money Unlimited" about how Chief Justice John Roberts "orchestrated the Citizens United decision."  For some background information, Citizens United has its roots in a 2003 case named McConnell v. Federal Election Commission, where the Supreme Court upheld most of the McCain-Feingold act.  (The McCain-Feingold Act prohibited corporations and unions from broadcasting advertisements mentioning a candidate within thirty days of a primary or caucus and within sixty days of a general election.  The purpose of the act was to clarify a meaningless distinction between "candidate" and "issue" advertisements that existed before.)  With the Supreme Court upholding an "as-applied" test of the Act, a right-wing organization that wanted to broadcast a "conservative documentary" against Hillary Clinton knew it had to challenge the Federal Election Commission's barring its broadcast and challenge the law on its face.  The case went to the Supreme Court, and during the first round of oral arguments, Tom Olsen represented Citizens United, and he stated the issue as a very narrow right.  The government made a grand faux pas in oral arguments, and the conservative justices pounced.  As the deliberations and opinion drafts circulated, it became apparent that  Justice Kennedy was viewing the case in a much broader freedom of speech for corporations scope.  David Souter wrote a scathing dissent that essentially was a "go to hell" send-off for himself that pointed out that the court was deciding the case on much wider grounds that the parties sought.  As Toobin writes, Roberts needed to preserve "the Court's credibility," and he developed the solution of a second round of oral arguments where the court wrote the questions presented, and they were written to address whether the Act violated free speech.  The parties argued a second time, but the decisions were already made, and the opinions were already drafted.  It was merely a show.  After oral arguments, Roberts was ready with Kennedy's opinion striking down the law.  The outcome was that corporations are now permitted to have unlimited spending for political campaigns.

So, beyond my suggestion for you to read the article, the question becomes what is the fallout?  The fallout has easily been seen by the most recent Wisconsin governor recall election.  Whoever can court the most corporations can win.  The Republican governor outspent the Democratic candidate 8:1, according to one new article I read.  That's an astounding difference in spending.  Taking this idea further, what we're now seeing is that corporations (which are now being created and funded by major players like Karl Rove exclusively to impact elections) are essentially buying local elections.  By buying local elections (think US Representatives, US Senators, state representatives, etc.), the corporations are slowing amassing support for their policies at capitals across the country.  NPR's This American Life highlighted this exact process in its broadcast "Take the Money and Run for Office: Act II."  Listen to the podcast.  Justice Souter has since retired, but he has continued to speak about the legal activism that Roberts led on this case in order to circumvent the separation of powers.  Other critics of the decision have warned that this decision has now permitted American elections to be bought by foreign corporations, and thus be subject to an invisible yet powerful foreign hand.  At this point, Souter's dissent has not been released, and those seeking to "correct the injustice" are hoping that it is eventually published in an attempt to fight how the decision was made and to prepare for the future  (see CU -- Souter & Toobin).  This is definitely going to become a stickier and stickier wicket as we see more elections being "bought" within the final weeks by mass cash infusions from corporations.  Candidates may no longer rely on their constant flow of money from actual voters, but they must allot massive amounts of cash for their rainy day late push to counteract corporations' attempts to control elections.  Obviously, this will affect the two political parties differently.  (I'll refrain from making a cynical statement about Republicans at this time.)  At some point, there will be push back.  I'll be watching.

Progression of drugs

There have recently been stories in the news about the surprising result of the crackdown on abuse of prescription medication:  the rise of heroin use.  When I think of heroin, I think of skinny young folks trying to be models, but apparently it's also now involving soccer moms of suburbia and the poor.  Here's a link to a story running today on msnbc.com following two women in a Columbus, Ohio, suburb who progressed from prescription pills to the harder stuff.  Read story here.  As the case would be, I happen to be getting ready to attend a CLE with the Columbus City Attorney's office on bath salts and other street drugs.  I'll certainly ask about this rise in the use of heroin and what the office is seeing and doing about it.  

Another dubious execution

Ohio is slated to execute a man who believes he is in cahoots with the CIA.  Abdul Akwal has been diagnosed with schizophrenia and PTSD, and he suffers from delusions.  Nevertheless, the jury condemned him to die, and die he shall, regardless of whether he can understand what is happening to him (and any sort of Constitutional rights).  This one's going to be another dubious execution if it goes through.  Way to go, Ohio.  read news story here

Oklahoma Healthcare Summit 2012

I recently learned of the brand new Oklahoma Healthcare Summit.  It's going to be Thursday, August 9th and Friday, August 10th in OKC.  The topics include an overall look at Oklahoma's healthcare, how healthcare is changing, what it means to practice in rural areas, what you need to know about fraud, and other related topics.  I think it sounds really interesting.  Governor Mary Fallin is going to speak about the State of Oklahoma Healthcare.  The registration is only about $200 per person, and I think it will be well worth the money.  If you're interested, see the summit's webpage at http://www.oklahomahealthcaresummit.com/.  

New dog! New dog! New dog!

We've been silent for awhile because we now have a new dog in our family.  Lilly showed up over a week ago needing a family.  We think she may actually be Henry's littermate considering how quickly they took to each other and how alike they are.  Welcome Lilly!

Just so you know, Henry has continued to work on his tunnel to China.  Here he is fresh after an afternoon's worth of work:

Here I am stealing Henry's bone: