Safety considerations with chloroquine, hydroxychloroquine and azithromycin in the management of SARS-CoV-2 infection – CMAJ

KEY POINTS

Chloroquine and hydroxychloroquine are generally well tolerated, but clinicians and patients should be aware of serious adverse events that can occur, even during short courses of treatment.

Potential risks of treatment include prolongation of the QTc interval (especially in patients with preexisting cardiac disease or if coprescribed with azithromycin), hypoglycemia, neuropsychiatric effects, drugdrug interactions and idiosyncratic hypersensitivity reactions.

Genetic variability in metabolism of these drugs is considerable and influences their safety and effectiveness.

Chloroquine and hydroxychloroquine are extremely toxic in overdose.

As we await stronger evidence on the role, if any, of these drugs in the treatment or prevention of coronavirus disease 2019, uncommon but serious harms of treatment can be mitigated by careful patient selection and monitoring.

Severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) has spread rapidly around the globe in recent months. With deaths from its associated disease, coronavirus disease 2019 (COVID-19), projected to reach into the millions and a vaccine unlikely in the near term, the search is on for existing drugs that might prevent COVID-19 or improve outcomes for patients who have COVID-19. Chloroquine and its derivative hydroxychloroquine, which have been used for decades in the treatment and prevention of malaria as well as chronic inflammatory diseases such as rheumatoid arthritis and systemic lupus erythematosus, have received much attention as potential therapies.

Optimism for repurposing these drugs stems from 2 lines of evidence: inhibition of Coronaviridae (including SARS and SARS-CoV-2) in vitro13 and preliminary but contradictory clinical data from studies conducted in China and France.48 Of these, an open-label nonrandomized study by Gautret and colleagues5 that involved treatment using hydroxychloroquine (combined in some patients with azithromycin, an azalide antibiotic with putative antiviral properties9) has garnered an unusual degree of attention. Despite this studys small sample size and serious methodologic limitations, on Mar. 21, 2020, President Donald Trump touted the drug combination as having a real chance of being one of the biggest game-changers in the history of medicine.10 Within days of this pronouncement, chloroquine-related deaths were reported in Africa and Arizona (www.theguardian.com/world/2020/mar/24/coronavirus-cure-kills-man-after-trump-touts-chloroquine-phosphate; http://www.cnn.com/2020/03/23/africa/chloroquine-trump-nigeria-intl/index.html).

As we await further evidence on the role, if any, of these drugs in addressing the SARS-CoV-2 pandemic, many clinicians have already begun using them to treat COVID-19. The most typical regimen is 5 days of hydroxychloroquine at daily doses of 400600 mg, which delivers a cumulative dose comparable to what might be given over 48 hours for chloroquine-sensitive malaria caused by Plasmodium falciparum. The US Food and Drug Administration has granted emergency authorization for the use of chloroquine and hydroxychloroquine for treatment of COVID-19,11 and the Indian Council of Medical Research COVID-19 National Task Force has advocated extended hydroxychloroquine prophylaxis for health care workers.12

This review provides a general overview of potential harms associated with use of chloroquine and hydroxychloroquine and to a lesser extent azithromycin and a discussion of the management of adverse events, based on best available evidence (Box 1).

A search of PubMed from 1966 until 2020 was conducted for publications related to adverse events involving chloroquine, hydroxychloroquine and azithromycin. No restrictions were placed on article type; however, reviews were prioritized where available and their bibliographies were examined for articles that might have been missed in the broader search.

Along with common adverse effects such as pruritus, nausea and headache, chloroquine and hydroxychloroquine can predispose patients to life-threatening arrhythmias, an effect that may be enhanced by concomitant use of azithromycin. Other uncommon but serious potential harms include hypoglycemia, neuropsychiatric effects, idiosyncratic hypersensitivity reactions and drugdrug interactions, with genetic variability playing an important role in each of these. Chloroquine and hydroxychloroquine are also extremely toxic in overdose.

Both chloroquine and hydroxychloroquine interfere with ventricular repolarization, leading to prolongation of the QTc interval and an increased risk of torsades de pointes (TdP). This effect is dependent on dose: studies involving volunteers found mean increases in QTc of 6.1 ms after a dose of 600 mg and 28 ms after a dose of 1200 mg.13,14 However, the effect varies among individuals and can be pronounced. Among 30 children given short courses of chloroquine for malaria, 1 experienced an increase in the QTc interval of 64 ms after just 1 day of treatment.15

Azithromycin itself does not usually cause clinically significant prolongation of the QTc interval,16 but its use in combination with either chloroquine or hydroxychloroquine could theoretically increase the risk of TdP. Reassuringly, an animal model found no evidence of such an interaction,17 and the combination has been used safely in patients with malaria.18,19 Nevertheless, given limited experience in patients with COVID-19 and the potential for use of these drugs in patients with cardiac disease or those taking other drugs that delay repolarization, monitoring of the QTc interval at baseline and daily for the duration of treatment is advised, especially if azithromycin is coprescribed. Daily monitoring is impractical during prophylactic treatment, but assessment of the QTc interval at baseline is advised, especially for individuals with cardiac disease. It is prudent to correct electrolyte disorders and, where possible, avoid or minimize use of other drugs known to prolong the QT interval (Box 2).

Case reports have described severe hypoglycemia with both chloroquine and hydroxychloroquine in patients with malaria as well as those with lupus and other chronic diseases.2023 The basis of this effect (aside from malaria-related hypoglycemia) is multifactorial and includes reduced insulin clearance, increased insulin sensitivity and enhanced pancreatic insulin release.24 Among 250 patients with poorly controlled type 2 diabetes who were unwilling to start insulin, hydroxychloroquine (400 mg/d) was associated with marked reductions in fasting plasma glucose, hemoglobin A1c and body weight, whereas hypoglycemia developed in 2% of participants over the 48-month study period.25

Physicians should warn patients who are being treated with chloroquine or hydroxychloroquine about the possibility of hypoglycemia and describe its manifestations. Management of hypoglycemia involves cessation of the drug and administration of supplemental glucose or parenteral dextrose as needed. For patients with severe or recurrent hypoglycemia, octreotide (50100 g administered intravenously or subcutaneously every 8 h) is a well-tolerated somatostatin analogue that inhibits pancreatic insulin release and may be helpful in mitigating the rebound hyperinsulinemia than can ensue after large doses of intravenous dextrose.26

Chloroquine and hydroxychloroquine are known to cause a wide spectrum of neuropsychiatric manifestations, including agitation, insomnia, confusion, mania, hallucinations, paranoia, depression, catatonia, psychosis and suicidal ideation.27 These can occur at all ages,28 during acute or chronic use,2932 and in patients with and without a history of mental illness.28,32 Resolution is expected upon stopping the drug, although symptoms may not resolve quickly.33 Patients and clinicians should recognize new or worsening neuropsychiatric symptoms as possible adverse effects of treatment. Indeed, given the speculative nature at present of antimalarial agents in the prevention or treatment of SARS-CoV-2 infection, an argument can be made for avoiding these drugs in patients with underlying mental illness until more data are available.

Many clinicians associate antimalarial agents with oxidative hemolysis, particularly in patients with severe variants of glucose-6-phosphate dehydrogenase (G6PD) deficiency. Primaquine is well known to cause this, but chloroquine and hydroxychloroquine are much less likely to do so. In a chart review of 275 rheumatology patients with established G6PD deficiency, no episodes of hydroxychloroquine-related hemolysis were identified over more than 700 months of treatment.34 Hematologic abnormalities including lymphopenia, eosinophilia and atypical lymphocytosis can be features of immunologically mediated idiosyncratic drug reactions, as discussed below.

Both chloroquine and hydroxychloroquine are metabolized by hepatic cytochrome P450 enzyme 2D6 (CYP2D6), the expression of which varies among individuals as the result of genetic polymorphisms. 35,36 Roughly 7% of white North Americans have no functional CYP2D6 (the poor metabolizer phenotype) and 1%2% have gene duplications conferring an ultrarapid metabolizer phenotype, although the prevalence of these varies based on ethnicity.37 This genetic variability influences the response to treatment for malaria and chronic inflammatory diseases, as well as the risk of adverse events.38,39

In addition to being substrates for CYP2D6, chloroquine and hydroxychloroquine inhibit its activity, most likely by competitive inhibition.40 This has the potential to influence the fate of other drugs reliant on CYP2D6 for metabolism. For instance, hydroxychloroquine increases systemic exposure to orally administered metoprolol levels by about 65% and peak concentrations by 72%.41 Although data are limited, it is reasonable to assume that chloroquine and hydroxychloroquine potentiate other CYP2D6 substrates (including carvedilol and many others), and undermine the effectiveness of prodrugs reliant on CYP2D6 for activation such as codeine and tramadol.42 Indeed, the potential exists for chloroquine and hydroxychloroquine to precipitate opioid withdrawal in patients who are taking these drugs regularly.

Unlike the related drugs erythromycin and clarithromycin, azithromycin exhibits little inhibition of cytochrome P450 enzymes or drug-transport proteins such as P-glycoprotein.43 As such, azithromycin is far less likely to precipitate clinically important drugdrug interactions (Box 2).

Chloroquine and hydroxychloroquine have been implicated in severe cutaneous adverse reactions, including StevensJohnson syndrome,44 toxic epidermal necrolysis,45,46 DRESS (drug reaction with eosinophilia and systemic symptoms)47,48 and others. Although rare, these entities should be considered in patients with new-onset fever, exanthem or mucositis in the weeks after the start of treatment, particularly when accompanied by new hematologic abnormalities (such as lymphopenia, eosinophilia or atypical lymphocytosis) or unexplained liver or kidney injury.

There is no evidence that chloroquine, hydroxychloroquine or azithromycin are harmful to the developing fetus, and pregnancy is not a contraindication to their use.49,50 Long-term risks of treatment include retinopathy, vacuolar myopathy, neuropathy, restrictive cardiomyopathy and cardiac conduction disturbances. 5153 These risks are negligible in the context of treatment of SARS-CoV-2 but may be relevant if they are used for extended prophylaxis.

Chloroquine and hydroxychloroquine are extremely toxic in overdose, sharing several manifestations in common with cyclic antidepressant poisoning. Deliberate or inadvertent overdose leads to rapid onset of central nervous system toxicity (seizures and coma), cardiovascular collapse (including inhibition of cardiac sodium and potassium channels resulting in QRS widening and QT interval prolongation, respectively) and hypokalemia resulting from intracellular shifting.54 Treatment of overdose is largely supportive and includes prompt administration of activated charcoal, intravenous benzodiazepines and vasopressors as needed, sodium bicarbonate or hypertonic saline for substantial QRS widening and related arrhythmias, and judicious management of hypokalemia while taking care to avoid overcorrection. Urgent consultation with a poison control centre is advised in all cases.

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Safety considerations with chloroquine, hydroxychloroquine and azithromycin in the management of SARS-CoV-2 infection - CMAJ

XBiotech Identifies Super Bloods for the Development of a True Human COVID-19 Therapy – GlobeNewswire

Donors with Potent Natural Immunity Against the Virus are Identified as the Starting Point for XBiotechs Drug Development Program to Treat COVID-19

AUSTIN, Texas, May 01, 2020 (GLOBE NEWSWIRE) -- XBiotech Inc. (NASDAQ: XBIT) announced today that human immune donors have now been identified that can support the Companys development of a True Human antibody therapy for COVID-19. XBiotech recently developed and transferred screening technology to South Texas Blood & Tissue Center (STBTC), a blood donor organization, that enables blood donors that have COVID-19 immunity to be identified. In collaboration with STBTC, XBiotech scientists have been searching for ideal blood donors with strong natural immunity to COVID-19 to begin its True Human antibody discovery process.

XBiotech scientists have focused their search to find blood donors that have both very high levels of antibodies against COVID-19 and at the same time do not have a history of a serious illness from the virus. XBiotech believes that individuals with evidence of a vigorous antibody response against COVID-19 in the absence of a history of serious illness are ideal for identifying antibodies that could serve as a powerful therapy against the virus. XBiotech scientists are now receiving these exclusive blood samples from STBTC and have begun its proprietary discovery process to isolate the unique genetic information or genes responsible for producing the antibodies in the donors.

There is no other research or pharmaceutical organization better prepared with the technology and capabilities of XBiotech to identify and develop antibody therapies derived from natural human immunity commented John Simard, XBiotechs CEO. He further stated, The COVID-19 crisis brings into sharp relief the unique position of XBiotech to address existing and emerging unmet medical needs for infectious diseases.

AboutXBiotechXBiotech is a fully integrated, global biopharmaceutical company dedicated to pioneering the discovery, development and commercialization of therapeutic antibodies. XBiotech currently is advancing a pipeline of therapies by harnessing naturally occurring antibodies from patients with immunity to certain diseases. Utilizing natural human immunity as a source of new medicines offers the potential to redefine the standards of care for a wide range of diseases.

On December 30, 2019 XBiotech sold an IL-1 blocking True Humanantibody that had been used successfully in a number of clinical trials. The sale of the antibody generated $750 million in upfront cash and up to $600 million in potential milestone payments. The Company retained the right to pursue the development of True Humanantibodies targeting IL-1 for all areas of medicine outside of dermatology. While the Company previously was focused on a single True Humanantibody targeting IL-1, it now plans to develop multiple product candidates, which will target IL-1 in specific areas of medicine.

In addition to recent sale of its anti-IL-1 antibody, XBiotech now has other revenue sources. Commencing January 1, 2020 XBiotechbegan using its proprietary manufacturing technology to produce clinical drug product for a major Pharmaceutical Company under a two-year supply agreement. In addition,XBiotechis providing clinical trial contract research operations to conduct two large, double-blind placebo-controlled Phase II clinical studies. The financial strength generated from the sale and contract operations is enabling XBiotech to expand both its anti-IL-1 product development and infectious disease programs.

To accelerate advance of the Companys pipeline, the Company is expanding its existing manufacturing and research center, and planning to build an additional 30,000ft2 infectious disease research & development center on its 48-acre property in Austin, TX which is wholly owned by the Company. The expansion and new building will be in addition to the present custom-built 33,000ft2 combined manufacturing and R&D facility that currently exists on the campus. XBiotech owns the 48-acre campusand all structures on the propertydebt-free and envisions further expansion of facilities. For more information, visit http://www.xbiotech.com.

About True Human Therapeutic AntibodiesXBiotechs True Human antibodies are the only available antibodies derived without modification from humans who possess natural immunity to certain diseases. (Unlike all commercially available antibodies, which are called Humanized or Fully Human, XBiotechsTrue Human antibodies are directly sourced from the natural human immune response for specific diseases without modification.) XBiotechs True Human antibodies have the potential to harness the bodys natural immunity to fight disease with unprecedented safety, efficacy, and tolerability.

Cautionary Note on Forward-Looking StatementsThis press release contains forward-looking statements, including declarations regarding management's beliefs and expectations that involve substantial risks and uncertainties. In some cases, you can identify forward-looking statements by terminology such as "may," "will," "should," "would," "could," "expects," "plans," "contemplate," "anticipates," "believes," "estimates," "predicts," "projects," "intend" or "continue" or the negative of such terms or other comparable terminology, although not all forward-looking statements contain these identifying words. Forward-looking statements are subject to inherent risks and uncertainties in predicting future results and conditions that could cause the actual results to differ materially from those projected in these forward-looking statements. These risks and uncertainties are subject to the disclosures set forth in the "Risk Factors" section of certain of our SEC filings. Forward-looking statements are not guarantees of future performance, and our actual results of operations, financial condition and liquidity, and the development of the industry in which we operate, may differ materially from the forward-looking statements contained in this press release. Any forward-looking statements that we make in this press release speak only as of the date of this press release. We assume no obligation to update our forward-looking statements whether as a result of new information, future events or otherwise, after the date of this press release.

Contact XBiotechAshley Oteroaotero@xbiotech.com512-386-2930

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XBiotech Identifies Super Bloods for the Development of a True Human COVID-19 Therapy - GlobeNewswire

What Is Oceania? – WorldAtlas.com

Where Is Oceania?

The region of Oceania consists of many islands in the tropical Pacific Ocean. Oceania is further divided into the three subregions of Polynesia, Melanesia, and Micronesia. The term Oceania is often used to denote a continent which comprises of Australia and the nearby islands or as a synonym for Australasian ecozone or the Pacific ecozone. As an ecological zone, it includes Micronesia, Polynesia (excluding New Zealand), and Fiji. New Zealand along with other islands constitutes the separate Australasian ecozone. The term Oceania was coined by Conrad Malte-Brun in 1812 with the inhabitants of the region known as the Oceanians.

Oceania initially consisted of land in the Pacific Ocean which stretched from the Strait of Malacca to the coast of the America. The area is made up of four regions including Polynesia, Micronesia, Melanesia, and Malaysia. Parts of the three geological subregions are today part of the term Oceania. Oceania extends to Sumatra, Bonin Island, Hawaiian Island, Rupa Nui Island, and Macquarie Island. The islands at the geographical ends of the area include Bonin, a territory of Japan, Hawaii, a territory of the US, and Easter Island which belongs to Chile. Also, a relatively smaller geographic area includes Indonesian Papua Guinea on the Australian continent but excludes the land on the Sunda Plate. Biogeographically, the region is another name for either the Australasian ecozone or the Pacific ecozone. The region of Oceania is one of the 8 terrestrial ecological zones which form the major ecoregions of the earth. The ecozone covers Micronesia, Fiji, and Polynesia (except New Zealand). Geopolitically, the term Oceania is used by the UN, the International Olympic Committee, and several atlases to include Australia and other Pacific nations such as Papua New Guinea. A wide definition of the region includes the region between Asia and the Americas.

Oceania is divided into the three sub-regions of Polynesia, Melanesia, and Micronesia. Melanesia extends from New Guinea Island to the Arafura Sea and Fiji. Melanesia region includes four countries: Papua New Guinea, Fiji, Solomon Island, and Vanuatu. It also includes New Caledonia which is a collective of France and the Western New Guinea regions of Indonesia. The islands of Melanesia often have both European and Indigenous names, which results in confusion.

Micronesia consists of several small islands located on the western part of the Pacific Ocean who are shared culturally by Polynesia and Melanesia. Micronesia is politically divided among independent states including three US territories. The islands of Micronesia are estimated to number 2,100, covering a total area of about 1,000 square miles. The largest island, Guam, covers about 225 square miles. Micronesia has four major island groups: Caroline, Gilbert, Mariana, and Marshall.

Polynesia constitutes over 1,000 islands distributed over the central and Southern parts of the Pacific Ocean. The majority of the islands are composed of volcanic islands built by hotspots. Polynesia consists of a largely sank continent of Zealandia which covers a total area of approximately 118,000 square miles with the largest island, New Zealand, Covering approximately 103,000 square miles. Polynesia is defined by the Polynesian Triangle which is drawn by connecting of three islands of Easter Island, Hawaiian Island, and New Zealand.

The history of Oceania is built on that of Australia and other Pacific Islands. The history is also built on the history of the three sub-regions of Polynesia, Micronesia, and Melanesia. The region was explored for the first time by the Europeans in the 16th century. Portuguese explorers reached Moluccas, Timor, Tanimbar Island and some parts of the Carolina Island and New Papua Guinea between 1512 and 1525. Between 1527 and 1595, several large Spanish expeditions explored the Pacific Ocean resulting in the discovery of the Marshall Island and Palau on the northern Pacific. The Spanish explorers discovered the Pitcairn and Vanuatu archipelagos in the 17th century. A colony of Guam was then discovered by the Spanish in 1668 and used as a harbor and stop-over for the west-bound vessels. Abel Tasman was the first to reach Tasmania and New Zealand and mapped a substantial portion of Australia, New Zealand, Tonga, and Fiji. James Cook became the second European explorer to visit New Zealand 125 years after Tasman and in 1778 he became the first European first to visit the island of Hawaii.

Oceania was colonized by Europeans and the Americans. Between 1788 and 1872, the British established several colonies including Australia, New Zealand, and Fuji with much of Oceania becoming a British territory. In the 19th century, Kiribati and Tuvalu Islands also came under the British sphere. Tahiti and Tahuata were declared French protectorates in 1842. The French also took over the Tuamotu Archipelago belonging to the Pomare Dynasty in the 1980s. The Netherlands claimed mainly the western half of Oceania. The Dutch government established its first posts in 1898 and 1902 to the South of the border with British New Guinea. Germany established its colony and a trading station on Jaluit and Ebon islands to promote the copra trade. The US expanded into the Pacific in 1857 by taking over Baker and Howland Islands. Hawaii became part of the US in 1898. The Japanese took control of the Marshall Island at the beginning of the World War I. Japan also colonized several Oceanic colonies.

The idea of what constitutes Oceania varies from time to time. The region is defined in several geopolitical and geographic ways. The geopolitical concept used by bodies such as the United Nations, Olympic Committee, and other atlases includes Australia and other Pacific Nations such as Papua New Guinea in their definition of Oceania. The Oceania region has a population 34.7 million people including the population of Australia and 13.4 million people excluding the mainland Australia. Papua New Guinea is the most populated island followed by New Zealand and Hawaii with a population of 5.9 million, 4.2 million, and 1.4 million respectively. Pitcairn Island is the least populated island with only 48 people. Christianity is the major religion within Oceania although there are some other religions including Hindu, Islam, Buddhism, and Indigenous beliefs.

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What Is Oceania? - WorldAtlas.com

Pat Shingleton: "Oceania and Rhubarb…" – WBRZ

We say goodbye to April and rewind to some interesting weather events on this date. Oceania are land areas that are not a part of a continent. On this date in 1912 a temperature of 108 degrees was recorded at Tuguegarao, Philippines for Oceanias all-time recorded high. In 1898 the latest-in-the-season measureable snowfall for Washington, D.C. was noted along with a record low of 33 degrees. Also in D.C. on April 30, 1938, meteorologists attending the American Geophysical Union reported baseball sized hail that whitened the ground setting a record hail event. Here's another from 1994 when thunderstorm winds blew a power line onto a fence in Franklin County, PA, electrocuting 15 cows and illuminating the fence like a toaster. In closing, backyard gardens are a couple of months away from a "full" harvest. In western Pennsylvania, my grandfather would turn-over the garden with a spade or shovel until he was convinced to let Mr. Hollenbeck disc it up with his tractor. My mom looked forward to one of the first crops of the season - rhubarb. After that, its leaf lettuce, beans, tomatoes and sweet corn that should be knee high by the Fourth of July. At this time of the year, she would remove ground cover from her rhubarb, uncovering quite a crop. There was so much rhubarb that the produce manager at the local Giant Eagle gave her six bucks per pound. More importantly, her rhubarb pie with strawberries was the absolute best and greatly missed...

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Pat Shingleton: "Oceania and Rhubarb..." - WBRZ

HTO invites Aussies to #ShareAloha with family and friends on Lei Day – Travel Weekly

Across the Hawaiian Islands, Lei Day is celebrated on 1 May annually, recognising Hawaiian culture and the traditions of kindness and hospitality.

A lei is a necklace of fresh flowers, shells or nuts that is created as a gift and shared as a token of love, congratulations, welcome or farewell. Lei Day is an annual tribute to this culturally iconic symbol of Hawaiis aloha spirit.

Aloha can be created in an instant through a decision to act with kindness. Hawaii Tourism Oceania is inviting Aussies to celebrate and brighten up someones day through an act of aloha.

Hawaii Tourism Oceanias country manager for Australia, Giselle Radulovic, said: Hawaii has a long tradition of welcoming visitors from around the world. However, right now the focus is on the health and safety of Hawaiis residents and community.

Until such time when we can welcome visitors back to the Hawaiian Islands, we will continue to share the spirit of aloha with Australians.

Last month, Hawaii Tourism Authority launched its heartwarming #ShareAloha campaign, which you can check out below:

Featured image: supplied by Hawaii Tourism Oceania

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HTO invites Aussies to #ShareAloha with family and friends on Lei Day - Travel Weekly

Sania Mirza: First Indian To Be Nominated For Fed Cup Heart Award – SheThePeople

Sania Mirza has made all of us proud again. The 33-year-old tennis player on Thursday was nominated for Fed Cup Heart Award from the Asia/Oceania zone. With this, she becomes the first Indian to be nominated for this award. The competition will commence from May 1st to May 8th. In this period fans all over the world will have the chance of voting for their favourite player to make them win. Voting will be conducted online.

Read also:COVID-19: Sania Mirza Raises Funds For Daily Wage Workers

Sania Mirza made a comeback to Fed Cup after four years and eventually helpedIndia qualify for the Play-offs for the first time.Stepping on to the court for the first time in India colours was a moment of pride for me, back in 2003. It has been an eighteen-year long journey since then and I feel extremely proud and privileged to have contributed to the success of Indian tennis, Sania told anAITArelease.

The Fed Cup result at the Asia/Oceania tournament last month is one of the greatest achievements of my playing career. These are the moments an athlete plays for and I am grateful to the Fed Cup Heart Awards selection panel for this recognition, she further added.

Read also:Please Forgive Me. Tennis: Maria Sharapova Calls It Quits

After a two-year-longmaternitybreak, tennis championMirzamadea rocking comeback and lifted the WTA Hobart International trophy with partner Nadiia Kichenok, in January this year.

In Fed Cup Heart Awards 11th edition this year, Anett Kontaveit (Estonia) and Eleonora Molinaro (Luxembourg) have been nominated from Europe/Africa zone. From the Americas, Fernanda Contreras Gomez of Mexico and Paraguays Veronica Cepede Royg have been nominated. Indonesias Priska Madelyn Nugroho has also been nominated from the Asia/Oceania zone.

Read also:Indias Chandra Datta Part Of Oxford Univs COVID-19 Vaccine Project

The Fed Cup Heart award is an initiative by the ITF (International Tennis Federation). The award aims at recognizing and honouring the players who have represented their country with distinction, have shown exceptional courage on the court, and demonstrated outstanding commitment to the team during Fed Cup. The first award was given to Melanie Oudin of America in the Fed Cup finals of 2009.

The Fed Cup result at the Asia/Oceania tournament last month is one of the greatest achievements of my playing career. These are the moments an athlete plays for and I am grateful to the Fed Cup Heart Awards selection panel for this recognition.

Fed Cup, known as Federation cup until 1995 is the premier international team competition in womens tennis. It was first organised in 1963 to celebrate the 50th anniversary of the International Tennis Federation (ITF).

Read also:Table Tennis Prodigy Hansini Makes A Mark In Her Maiden ITTF Event

Saumya Tiwari is an intern with SheThepeople.TV

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Sania Mirza: First Indian To Be Nominated For Fed Cup Heart Award - SheThePeople

Sania becomes first Indian to be nominated for Fed Cup Heart award – Gulf Today

Sania Mirza is the nominee for the award from the Asia/Oceania Zone alongwith Indonesias Priska Madelyn Nugroho.

Six players have been nominated for the three regional Group I Fed Cup Heart Awards in recognition of their Fed Cup by BNP Paribas performances in 2020, said the Fed Cup in its statement.

The nominees are: Estonias Anett Kontaveit and Luxembourgs Eleonora Molinaro from Europe/Africa; Fernanda Contreras Gomez of Mexico and Paraguays Veronica Cepede Royg from the Americas; and Indias Sania Mirza and Priska Madelyn Nugroho of Indonesia from Asia/Oceania.

Voting for the award opens on May 1 and will end on May 8.

Sania played an integral role in India securing a first-ever place in the playoffs. She won the decisive doubles match that helped India secure their win over Indonesia in their final Group 1 match.

After giving birth to her child in October 2018, Sania returned to the court in January this year. She clinched the womens doubles title at Hobart International, pairing up with Nadiia Kichenok, in her comeback competition.

With the world coming to a standstill due to the coronavirus outbreak, sporting events across the globe have either been cancelled or suspended and Indias star tennis player Sania cannot wait to go back to the tennis court.

Taking to Twitter, she wrote: Waiting to play tennis again like.

Sania recently shared a photo of her son with a tennis racquet in hand, looking confused. I am pretty sure hes thinking what the fuss is all about? #IzhaanMirzaMalik. Sania said in her Twitter post.

Sania last played at the Qatar Open in February. She has helped raise Rs 1.25 crore in one week which will help close to 1 lakh people in need during the 21-day lockdown to fight the coronavirus pandemic.

Recently Sania celebrated her 10th marriage anniversary with husband and veteran Pakistan all-rounder Shoaib Malik.

Sania shared a couple of pictures with her husband Shoaib on social media and wished him a Happy Anniversary.

Sania and Shoaib tied the knot in 2010 here and have a year-old son named Izhaan.

From 2003 until her retirement from singles in 2013, she was ranked by the WTA as Indias No. 1 player in both the categories. Throughout her career, Mirza has established herself as by far the most successful Indian womens tennis player ever and one of the highest-paid and most high-profile athletes in the country.

Agencies

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Sania becomes first Indian to be nominated for Fed Cup Heart award - Gulf Today

Hal Foster on the art of Donald Judd – Artforum

SEVERAL DECADES ON, the art of Donald Judd is still stunning. In the exhibition at the Museum of Modern Art that opened March 1, smartly curated by Ann Temkin, Yasmil Raymond, Tamar Margalit, and Erica Cooke, all the work looks fresh (kudos to the conservators), but the early paintings and objects are especially vivid. The intensity of the cadmium red, often made tactile by roughened surfaces of board and wood. The physicality of the specific shapes, such as a yellow oval affixed to the support or a tin pan embedded there. The first tentative move into actual space with a painting whose aluminum top and bottom curl outward toward us. And then the initial objects, cut in sharp geometries, set boldly on the floor without pedestal or plinth.

Also very impressive, the second gallery presents several pieces Judd exhibited in his first solo museum show in 1968 at the Whitney Museum of American Art. At this point, he had already begun to repeat elements, as in his stacks, which consist of identical shelves set on a wall at regular intervals from floor to ceiling, as well as in his channels, which are comprised of rectangular frames spaced on the floor so as to describe a perfect square. Represented here, too, are other familiar series, such as his progressions, which are made of box and bullnose units sized and arranged along horizontal bars according to mathematical orders like the Fibonacci sequence (1, 1, 2, 3, 5, 8, etc.). The second gallery marks a shift in production from the homemade work of the early 1960s, when his father, a skilled carpenter, assisted Judd, to the pieces fabricated later in the decade in iron, stainless steel, brass, aluminum, and Plexiglas by sheet-metal specialists. Some of these objects have a fragile finish that in the 70s Judd offset with pieces in unpainted plywood, which recovered the crafted hardiness of the early work and allowed him to go larger than he had heretofore.

Along with a few other templates, Judd turned these series into a basic language that he deployed in different materials, colors, and sizes for the next two decades of his life, excellent instances of which are displayed in the third gallery. The fourth gallery of the exhibition is dominated by pieces that represent a final twist in his practice. In 1984, Judd began to collaborate with a Swiss fabricator that helped him assemble long blocks of color units in enameled aluminum. This is Judd at his most pictorial (the blocks are often set on the wall); the random combinations of colors might call up the grids of Ellsworth Kelly or even the charts of Gerhard Richter. This is also Judd at his most free; the work has little of the asperity usually associated with late style, but then Judd died prematurely, felled by cancer in 1994 at the age of sixty-five.

With Judd it is impossible to separate the artist from the critic, and some of his words remain as forceful as most of his objects. Half or more of the best new work in the last few years has been neither painting nor sculpture, he stated in the famous first lines of Specific Objects (1965). Much of the motivation in the new work is to get clear of these forms. The use of three dimensions is an obvious alternative. Although Judd appeared to dismiss painting in totoThe main thing wrong with it, he remarked in his usual deadpan, is that it is a rectangular plane faced flat against the wallit was Jackson Pollock, Clyfford Still, Mark Rothko, Barnett Newman, and Ad Reinhardt who prompted his shift into three dimensions. Along with a commitment to large scale, unmodulated color, and emphatic materiality, their painting mandated a sense of singleness for Judd, who felt that this wholeness had a better future outside that medium.1

Judd didnt eliminate composition so much as he displaced it from the interior of the work to the exterior, where it became a matter of symmetry and proportion along a wall or on a floor. This was a radical move artistically but less so aesthetically, for first and last Judd held that ultimately one essential of art is unity, a traditional criterion indeed. Hence, unlike many of his peers, he had little interest in chance or any other device of the Duchampian avant-garde. Still, his shiftfrom an arrangement of parts within a painting or a sculpture to the wholeness of an object in actual spacewas misread by early critics, and Judd responded fiercely. I object to several popular ideas, he wrote already in 1966. I dont think anyones work is reductive. Far less was Minimalisma label Judd also abjuredan attack on art: Non-art, anti-art, non-art art, anti-art art are useless. If someone says his art is art, its art.

For all his resistance to anti-art, Judd articulated most of his motives in the negative. Above all, he was opposed to illusionism and rationalism, which, in his view, were closely linked. Three dimensions are real space, he wrote in Specific Objects. That gets rid of the problem of illusionism. Why did Judd object to this relic of European art so strongly? Again, his argument was not avant-gardistthat abstraction had voided illusionism once and for all (it hadnt, in any case). Rather, the problem was that illusionism was anthropomorphic, by which he meant not simply that it allowed for the representation of the human body, but that it assumed an a priori consciousness, whereby the subject always preceded the object. In short, like composition, illusionism was rationalistic, a vestige of an outmoded idealism in need of expunging. There is little of any of this in the new three-dimensional work, Judd insisted. The order is not rationalistic. . . . [It] is simply order, like that of continuity, one thing after another.2

Of course, Judd also put forward positive values, especially the related ones of specificity and objectivity, but largely to counter the negative ones. Materials vary greatly and are simply materialsformica, aluminum, cold-rolled steel, plexiglass, red and common brass, and so forth, he stated, in his laconic way, about several of his preferred substances. They are specific. If they are used directly they are more specific. Here specific means physically emphatic: His explicit materials and straightforward presentations were intended to make us focus on the intrinsic qualities of the former and on our reflexive perception of the latter. At the same time, at least for Judd, these substances were unburdened by associations, artistic or otherwise, and this lent them even more objectivity. In his view, this specificity and that objectivity supported the autonomy of the artwork, which he honored most of all.

These values are mostly materialist, but what kind of materialism, exactly? In an incisive critique from 1975, Karl Beveridge and Ian Burn, two members of the Art & Language camp of Conceptual art, called it middle-class materialism, one that put too much faith in the supposed objectivity of science.3 I leapt into the world an empiricist, Judd stated proudly, and his posture was indeed empiricist, according to which all knowledge is derived from sense experience, if not positivist, according to which all knowledge must be scientifically verified as well. (For a point of comparison, Frank Stella was positivist when he said of his painting of the early to mid-60s, What you see is what you see.4) Judd moderated his empiricism a little through a reading of pragmatists such as Charles Sanders Peirce, and there is also a trace of the transcendentalists in his writings, especially when he struck his recurrent note of Emersonian self-reliance.

Judd was limited philosophically, and I imagine he liked it that way: He thought what he thought, and defiantly so.

Although Judd was art-historically trainedhe did an MA under Meyer Schapiro at Columbia Universityhe was limited philosophically, and I imagine he liked it that way: He thought what he thought, and defiantly so. Judd believed, correctly, that, apart from other vices, European rationalism was too dependent on problematic binaries, not only of subject and object and mind and body, but also of thought and feeling, spirit and matter, and form and content, with the privilege granted to the first term in each pair. Yet, for the most part, he couldnt think his way through these oppositions: He didnt have enough Marx to dialecticize them (Judd mentioned Marx only twice in his texts), nor did he later possess any Derrida to deconstruct them. Arguably, his very insistence on the object removed it from the subject all the more. Clearly Beveridge and Burn thought so: They read the vaunted objectivity of his specific objects as so much alienability, equally divided between artwork and viewer. (This is what other viewers have long registered as the coldness or impersonality of Minimalism.5)

Judd didnt oppose the specific to the general; he believed in generalities, that of art above all (again, if someone says his art is art, its art). If the specific object lies beyond the discrete mediums of painting and sculpture, that realm is the realm of art in general, Art with a capital A, which was also the conclusion drawn by his Conceptual followers, of whom Judd mostly disapproved.6 Prominent critics such as Clement Greenberg and Michael Fried saw the situation quite differently. Far from autonomous art, the specific object was too close to a mere thing (like a door, a table, or a blank sheet of paper, Greenberg mocked), too caught up in mundane time (Fried famously termed Minimalist objecthood so much theater and opposed it to art in no uncertain terms).7 Yet Judd insisted on the autonomy of art every bit as much as Greenberg and Fried did, even if, as Beveridge and Burn alleged, his version initially required the art-institutional context of the gallery or the museum for it to be recognized as such. There is a further connection to his two great antagonists: Like Greenberg and Fried, Judd conformed to a conceptual framework that, far from being alien to European rationalism, might well be essential to it. In The Order of Things (1966), written in the same years that Minimalism was developed, Michel Foucault argued that modern man is a strange empirico-transcendental doublet, by which he meant that, however opposed they might appear, the epistemological orientations of empiricism and transcendentalism are actually bound up with each other.8 Greenberg and Fried put forward such a doubletmedium-specificity on the one hand, autonomous art on the otherand so did Judd with his empiricist attention to the object and his transcendental commitment to art in general.

To be sure, Judd helped to open up new possibilities for postwar art. The main thing for anyone now, he remarked in 1966 in the full flush of this expansion, is to invent their own means. Yet, again, he ruled out some devices from the start, such as chance operations la John Cage, and shied away from others, such as the found image or object. Ive lived in the shade of a coat hanger and a bed spread, Judd lamented in 1981 in a light swipe at Jasper Johns and Robert Rauschenberg. Certainly, after his initial move into three dimensions, Judd did produce brilliant variations, but he held fast to his basic theme. I want a particular, definite object, he remarked in a 1969 text on Dan Flavin. I think Flavin wants, at least first or primarily, a particular phenomenon. One can distinguish Judd from his other peers in this differential way as well. Whereas Carl Andre insisted on given material units, and Robert Morris opted for direct bodily engagement, and Richard Serra ventured into emphatic spatial intervention, Judd stuck with his discrete specific object. By and large, he supported, even prepared, these other moves, but he didnt join them, not fully.

This point seems clear enough nowthe MoMA show helps in this respectbut it wasnt always evident to artists and critics (myself included). For all the visual power of the Judd oeuvreand often it has a haptic force, tooit doesnt often engage us deeply in a phenomenological way. That it was thought to do so was partly a projection onto his work from the practices of Morris and Serra, who were actually interested in the philosophy of Maurice Merleau-Ponty. (Although Phenomenology of Perception was translated into English in 1962, Judd didnt mention Merleau-Ponty in his writings.) An involvement in phenomenology might have also led Judd to probe process and space more amply than he did; clearly, it nudged Morris and Serra in those directions.9 Judd was interested in the effects of fabrication more than the discoveries of process, in the drama of installation more than the articulation of space. In fact, with all its reflections, transparencies, and color interactions, the viewer can get caught up in the mesmeric surfaces and volumes of his work in a way that disembodies and dematerializes more than the opposite. Little was done until lately with the wide range of industrial products, Judd stated in Specific Objects. Almost nothing has been done with industrial techniques. He did a lot with the products, of course, but not so much with the techniquesa point that Serra has recently underscored with a distinction drawn between the shiny Minimalism of Judd and Flavin, centered on objects and phenomena, and the down and dirty Minimalism of his own cohort (among whom he names Robert Smithson, Bruce Nauman, and Eva Hesse), focused on processes and materials.10

For all the visual power of the Judd oeuvreand it has a haptic force, tooit doesnt often engage us deeply in a phenomenological way.

Is this a fair assessment of Judd, though, when it comes to space? Although his move into three dimensions was hardly the first, it did alter the relationship of art to architecture significantly: No one could see it any longer as a simple matter of rectangles on walls or things in galleries. More precisely, his Minimalism altered the geometry of viewing in art and made us newly alert to the nuances of installation.11 For some critics, however, this awareness had a downside; Beveridge and Burn complained that Judd programmed his viewers and choreographed his objects too much.12 At the same time, although many pieces are nicely site-adjustedincluding the stacks, the plywood pieces that extend across an entire wall, and multiple works in Marfa, Texasnot many are truly site-specific, at least in the rigorous sense given the term by Serra (to move the work is to destroy it). In this respect, Judd was also limited in his outdoor pieces, whose concrete geometries often seem more imposed on the landscape than fitted there.

I dont mean to be overly critical. Again, Judd set up crucial investigations of the 60s and 70s, and he shouldnt be judged according to subsequent criteria in any case. Nevertheless, one wonders why he didnt take his own radical move further. I have floated a few possible reasons; another concerns his historical resources. In a 1981 text titled Russian Art in Relation to Myself, Judd stated simply, I essentially missed the Russian work, by which he meant Constructivism above all. I would like to have known of that interest in the early 1960s, he added, with the culture of materials of Vladimir Tatlin in mind. Given his art-historical knowledge, did this work really escape his notice? Contemporaries such as Sol LeWitt, Andre, Stella, Flavin, and Serra were all aware of the basics of Constructivism, mostly through the 1962 book The Great Experiment: Russian Art 18631922, by Camilla Gray. (Judd claimed that he was also late to De Stijl, though given his primary colors, clean geometries, and scalar experiments, that too seems a little dubious.) In any case, Constructivism could have assisted Judd in his principal battles: Its insistence on construction would have supported his critique of composition, and its understanding of materialism would have deepened his critique of idealism (it might have also complicated his empiricism). The Constructivist principles of faktura, tectonics, and construction were dedicated to a Marxist undoing of bourgeois art forms; the aim was to defetishize the work of art via a new transparency of materials and production. Arguably, Judd often did much the opposite, fetishizing facture as techy surface and outsourcing construction as fabrication. Obviously, there was no sociopolitical context for any thorough recovery of Constructivism, but that didnt stop Andre, Serra, and others from a partial recuperation of its artistic principles.13

Perhaps the primary reason Judd held fast is that he rejected anything that looked like compromise, and, to him, a lot did: In his writings he often railed against wayward artists, obtuse critics, nefarious collectors, bureaucratic museums, untrustworthy foundations, and devious governments. His partial withdrawal to Marfa in the early 70s was also a defiant stand against any encroachment on his autonomy; it is where his liberal belief in self-reliance edged into a Texan brand of libertarianism (Dont tread on me). Yet, paradoxically, standing his ground also opened him up to some slippages, most of which werent his fault. For instance, if Judd didnt oppose the specific to the general, he did pit it against the generic, and what is more generic than the commodities that suffuse our everyday world? However, when repeated, as Judd did repeat his boxes, stacks, and other elements, the specific object became less specific and more serialone thing after another, indeed. In structural terms, then, the specific object began to approximate the commodity, and too often it is as shiny as any (other) product, which is far less the case with the down and dirty version of Minimalism. In this respect, too, Judd came to share a serial logic with his enemy twin, Andy Warhol (Judd disdained Pop). The difference is that Warhol owned that condition: Rather than deny it only to reproduce it, as Judd sometimes did, Warhol often exacerbated and so exposed it.

Judd rejected anything that looked like compromise, and, to him, a lot did.

Similarly, even though Judd insisted on the autonomy of art, he also designed furniture and architecture. That was his prerogative, to be sure, and he kept these ventures separateand they remain so in the MoMA retrospective, where only a few benches, settees, and tables appear, and these outside the exhibition proper. But, intentionally or not, this activity blurred the line between the specific object and the utilitarian thing, the very line that Greenberg condemned Minimalism for crossing. In what ways did Judd prepare the repurposing of Minimalism by commercial design, both high and low, from Design Within Reach to IKEA? Are his detractors wrong to compare his late blocks of aluminum colors to giant Rubiks Cubes? Whereas Minimalism once meant materially emphatic, formally rigorous, and perceptually precise, it now signifies differently: To some people it means sleek, expensive elegance, to others moral uplift via Kondo space management. This not-so-secret sharing between Minimalism and design is hardly all on Juddit is a matter less of production than of receptionand yet, just as Leo Steinberg once pointed to a connection between Color Field painting and Detroit automobile styling, it must be mooted nonetheless.14 Other possible crossings are no less problematic. For example, if Minimalism initiated a new geometry of viewing for art installation, it might also have paved the way for galleries and museums to entertain the immersive spectacles favored by the culture industry at large.

Finally, there is this turn, for which Judd is responsible. In Specific Objects, he declared matter-of-factly, A work needs only to be interesting. Here, consciously or not, he posed the open criterion of interest against the Greenbergian shibboleth of quality: Whereas quality was judged by reference to the standards of both the old masters and the great moderns, interest was prompted by the testing of aesthetic categories and the transgressing of traditional mediums. In 1984, two decades after Judd made that famous declaration, in a two-part essay with the unironic title A Long Discussion Not About Master-pieces but Why There Are So Few of Them, he stated the opposite: Quality . . . is nearly the definition of art. Why did he take it back? Given that Judd had ascended to great-modern status by then, did he simply want to defend old-master quality as the ultimate criterion? Or had he secretly held out for it all along? For those of us who even as we admired Judd were also quickened by feminist critique of the male genius in the early 80s, this was a real letdown. What happened to his caustic skepticism of traditional categories of art?

On the one hand, what Judd initiated is well-nigh epochal. Its not so far from the time of easel painting, he commented in 1982; its still the time of the museum, and the development of the new work is only in the middle of the beginning. Certainly, for my generation he was a key reference, not unlike Pollock for his own generation; in 1987, I went so far as to declare his Minimalism the crux of postwar art.15 On the other hand, how salient is his work for artists and critics today? The past never stays the same since it is always seen from a new time and place, Judd also wrote in 1987. The experience, the work, that once could not be seen from outside, is eventually, often sadly, given an outside. Has that outside come to his work as well? However fresh it might still look, has it reached that Hegelian status, at once grand and melancholy, of a thing of the past?

Hal Foster teaches at Princeton University. His bookWhat Comes After Farce? Art and Criticism at a Time of Debacleis published this month by Verso.

NOTES

1. This and all other Judd quotations are from Donald Judd Writings, ed. Flavin Judd and Caitlin Murray (New York: Judd Foundation/David Zwirner Books, 2016).

2. Judd also advanced this notion in a 1966 conversation with Frank Stella: The qualities of European art so far . . . theyre linked up with a philosophyrationalism. . . . All that art is based on systems built beforehand, a priori systems; they express a certain type of thinking and logic that is pretty much discredited now as a way of finding out what the worlds like. See Bruce Glaser, Questions to Stella and Judd, in Minimal Art: A Critical Anthology, ed. Gregory Battcock (New York: E. P. Dutton & Co., 1968), 151. Incidentally, Judd was resistant to conventional composition in his writing, too: His prose often has a paratactic (non)quality, somewhat akin to that of Gertrude Stein, with statements that are at once specific and serial, one sentence after another.

3. Karl Beveridge and Ian Burn, Don Judd, The Fox, no. 2 (1975): 131.

4. Glaser, Questions to Stella and Judd, 158.

5. Beveridge and Burn, Don Judd, 132. Judd wasnt immune to this sense of alienability. In fact, in one unpublished note dated January 3, 1976, it turned into a vision of nothingness: For a long time Ive considered time to be nothing. Any time that you think of is only the relation or sequence of events, how long a person lives, human biology, or how many times the earth goes around the sun. There is no other time than this. If you remove all of the events there is nothing. Space, also, is nothing. There are things in it, variously related. If you remove these and the means of measurement between them, their phenomena, most importantly light-years, there is nothing. For an argument about how the phenomenological plenitude of Minimalist installations can flip into the oppositea voiding of the viewersee Robert Slifkin, The New Monuments and the End of Man: U.S. Sculpture Between War and Peace, 19471975 (Princeton, NJ: Princeton University Press, 2019).

6. This is an argument that Thierry de Duve has often reiterated.

7. Clement Greenberg, Recentness of Sculpture (1967), in Battcock, Minimal Art, 183; Michael Fried, Art and Objecthood (1967), in Battcock, Minimal Art, 11647.

8. Michel Foucault, The Order of Things: An Archaeology of the Human Sciences (New York: Random House, 1970), 318. Foucault was concerned with Comtean positivism and Marxist eschatology in particular, but his point is far more capacious.

9. Also, unlike Morris and Serra, Judd didnt appear much impacted, at least in his art, by dance, even of the Judson Church sort, despite the fact that he was married to choreographer and dancer Julie Finch from 1964 to 1976.

10. See Richard Serra and Hal Foster, Conversations About Sculpture (New Haven: Yale University Press, 2018), 1938.

11. I owe this point to Charles Ray.

12. Beveridge and Burn, Don Judd, 132. Not all Judd shows were so calculated, and though the MoMA exhibition provides informed juxtapositions and powerful sight lines, it also lets us engage individual pieces on their own, which Judd would have appreciated.

13. The more salient precursor is Josef Albers, whom Judd did acknowledge. The two shared an interest in the ambiguity of appearances, the interaction of colors, and the variations that can be wrung from a series. Like Albers, too, Judd delved into illusionism far more than his official literalism might suggest. On this point, see my The Art-Architecture Complex (New York: Verso, 2011), 182214.

14. See Leo Steinberg, Other Criteria: Confrontations with Twentieth-Century Art (London: Oxford University Press, 1972), 79.

15. See Hal Foster, The Crux of Minimalism, in Return of the Real: Art and Theory at the End of the Century (Cambridge, MA: MIT Press, 1996), 3570.

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Hal Foster on the art of Donald Judd - Artforum

The See-Through House by Shelley Klein review a father’s obsession – The Guardian

When Shelley Klein moved back in with her father Beri after her mother died, she brought some old furniture with her. He didnt want it in the house: a Victorian chair would compromise the modernist vernacular, he said. He objected to her pots of herbs, too: putting them on the kitchen windowsill would ruin the rectangular symmetry. Theyd had these arguments since childhood, when he stopped her having a Christmas tree. To Beri, the house was a work of art, a gallery for living in, and nothing must detract from its aesthetic.

Designed by the architect Peter Womersley, who became a close family friend, High Sunderland sits in a pine forest on the Scottish borders. A single-storey series of interconnecting boxes, its defining feature is a generous use of glass, which seems to draw the surrounding landscape inside. Klein was born there in 1963, a few years after it was built. She feels hefted to the place and used to dread leaving it as a child. Despite travelling widely and spending years in Cornwall, she kept returning, even before her fathers last years. Her book is a homage to the house and to him.

She arranges it like a floor plan, taking us through it room by room: from the hallway, with its single piece of furniture, a Danish chair on which it was forbidden to sit or place coats, through the living room, as clean and well lit a space as a Nordic snowscape, to the kitchen, where her parents would argue how long roast beef should be cooked. She also shows us the garden, which to Beris annoyance was sometimes disfigured by molehills, which interrupted the flow of the lawns. Photos are included but this isnt a coffee table book for interior design buffs. Each room has particular memories for Klein. And her journey through them is also a psychological quest, an attempt to understand how the house shaped her personality and whether she can ever get free of her attachment.

She couldnt wear a Laura Ashley dress without him mocking her: 'You look like the inside of a Victorian toilet'

Her fathers strict orthodox Jewish upbringing in Yugoslavia might have led him to become a rabbi but then disenchantment set in during his religious studies in Jerusalem. A place at art school kept him safe there during the war, unlike his relatives murdered in Auschwitz. In 1945 he came to Leeds to study textile design, where he met his wife to be, Peggy. He felt like an alien, paprika in a large British stew, but being an outsider didnt hold him back. Having set up several mills in Scotland, he made fabrics for Chanel, Dior and Yves Saint Laurent. The house played its part in his success, hosting fashion shows and photography sessions with models striking poses against the Mondrian-style exteriors.

High Sunderland has no attic, no cellar and very few doors. A house without secrets or ghosts, a museum of rationalism, with everything out in the open: such was the intention. Reacting against the transparency, the young Shelley aspired to be opaque, clouded, un-see-able through or at least to have a door on her bedroom. Keeping things from Beri made her feel guilty but it was the only way not to be overwhelmed. Later she discovered that Peggy had a few secrets too, including a set of sherry glasses, hidden in the back of a wardrobe because their design and antiquity would have offended him. The memoir is suffused with grief at his death but honest about how exasperating he could be. The teenage Shelley couldnt even wear a Laura Ashley dress without him mocking her (You look like the inside of a Victorian toilet). Their arguments and banter, set out like dialogue in a playscript, are often hilarious.

Its a reviewers cliche to say of a book that the main protagonist isnt any of the characters but the place where its set. Here no such distinction can be drawn: My father was the house. The house was my father, Klein writes. Her dilemma, when he was alive, was finding room to be herself. As she realises when they are rowing over her having a puppy (The house isnt big enough, he tells her), High Sunderland was too small for anyone else because it was fully occupied. By him. Her dilemma, now hes gone, is whether she can bear to sell up. She had too good a start in life, a friend tells her, and she agrees: she has idealised her childhood, her father and the house so that nothing else compares. By the end she has worked out what to do. But its a difficult process, and this original, moving and bracingly honest book doesnt hide the pain of separation.

The See-Through House: My Father in Full Colour is published by Chatto (RRP 16.99).

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The See-Through House by Shelley Klein review a father's obsession - The Guardian

Medical Professor urges health system reform in scathing review of COVID-19 response – Newshub

"If the pandemic response strategy was and is to keep itout and stamp it out, then the hard work we have had to do to stamp it out clearly shows that we materially failed to keep it out."

Prof Gorman said he stopped off in Singapore on his way back from the Middle East in February, and noticed that the military had been mobilised at Changi Airport and that thermal screenings were in place with people being closely monitored.

"By contrast, I arrived home to no meaningful management of passenger movement, hence my comment that I think we squandered our main advantage of geography."

Prime Minister Jacinda Ardern closed the border to New Zealand except for returning Kiwis on March 19, as all of the cases of COVID-19 identified had related to people travelling and bringing the virus with them.

But not everyone returning to New Zealand was being quarantined, prompting National leader Simon Bridges to launch a petition signed by tens of thousands of people urging the Government to quarantine all arrivals, which was eventually adopted on April 9.

The Prime Minister defended the Government's response in a speech to Parliament, highlighting how the border was closed to all but returning Kiwis within 25 days of New Zealand's first case, compared to Germany which took 49 days and Australia 55.

But Prof Gorman said the pandemic has also underlined "significant problems" in the way New Zealand's health system is structured, governed and operated.

He said "systemic inefficiency" became evident as problems emerged in the supply of swabs, personal protective equipment (PPE) and influenza vaccine, as well as contact tracing inefficiency highlighted in an independent review.

"Ironically, the current situation also provides an opportunity to accelerate system reform... though I might suggest we temper our enthusiasm since the last comprehensive reform of our health system was in 1938."

He said the current 20 district health boards (DHBs) are largely autonomous, telling MPs: "What you're looking at is the success of provincialism over rationalism."

He said to get commissioning and purchasing of healthcare right, a fluid health system is needed where some services exist at a national level, some regional, some district, and some right down to people's homes.

Labour MP Liz Craig agreed that the pandemic has "started up the historic debate about how the Government should invest in public health infrastructure".

But she said there have been contrasting calls for more centralisation as Prof Gorman suggested and also calls for strengthening public health units - which were given a $55 million boost last week to improve contact tracing.

The Government invested $500 million into the healthcare sector in its initial COVID-19 response package unveiled in March.

"In the last few weeks we've put significant investment into central functions, but also strengthening that public health response in those units," Craig said.

Prof Gorman agreed that the public health units have been neglected and he acknowledged that there is no simple solution - but warned that if we don't get it right, a far worse pathogen could come along and push the health system to the edge.

"I think the COVID-19 pandemic gives us a chance to identify what we need to do better before we encounter a potentially much worse pandemic," he told the committee.

"Without being melodramatic, if we don't seize this opportunity, I think our children and our grandchildren have every right to judge us very harshly."

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Medical Professor urges health system reform in scathing review of COVID-19 response - Newshub

MOHAMED BAKARI – The Return of the Repressed: Religion in the Fictions of Leila Aboulela and Marjorie Oludhe Macgoye – The Elephant

There seems to be a resurgence of the kind of genre in the contemporary world where religion, initially thought to be on the wane, is actually reasserting itself in various ways. One of the most conspicuous voices, for example, in contemporary America, is Marilynne Robinson, whose works are followed with keen interest. We however are sceptical that such themes can sustain writers in the long run, and will label them as genre writers. This seems to us as the return of the repressed, in the classical Freudian sense, in the sense that themes that were becoming increasingly repressed in secular societies are finding their way back into the public consciousness through the works of gifted contemporary novelists.

Literature is often a mirror of the period in which a work of art has been created. It is for this reason that we often frame literary texts within the time period that the texts are created. It is this assumption that we neatly categorise within the historical period that they were created. It is for this reason that we describe fictions as say, Victorian, Industrial Revolution, Edwardian, Modernist, and so on. This is particularly true of English literature. Other literary traditions have different ways of categorising literary productions. For example, postcolonial literatures are often categorised on the basis of the trauma of colonialism: pre-colonial, colonial and post-colonial. Literatures of the Islamic Middle East have added categories such as post-Ottoman, pre-revolution, revolutionary, apart from the classical jahiliyya and post-jahiliyya periods.

An implicit but unspoken assumption in all these categorisations is that at a deep level, these literatures are underpinned by a certain spirituality, be this Christian, Islamic or Hindu. Behind this assumption is the given that the earliest forms of literary production were saturated with the mystery surrounding creation, institution building and the mores of society. These mysteries gave rise to the earliest forms of literature and mythology. Humans created stories to explain to themselves the incomprehensible and these stories at a certain point became the basis of religious beliefs and philosophical speculation. Without these stories, there would neither have been religious belief, philosophy nor science. The unstructured reality began to take shape only when mythology was created. The gods and goddesses that we created ourselves and then began to worship, were a step towards self-realisation. The earliest gods and goddesses had the same flaws as us human beings, they were assailed by the same weaknesses that we found in ourselves, and they became a sure mirror of the human person, with all his/her frailties. Later, the heroes, during the heroic age, again reflected our own wishful thinking.

With the rise of critical philosophy and the scientific method, there was no attempt to abandon the mythic in human history. It was assumed that, although now we started to think in more abstract terms, not everyone was capable of benefitting from this new worldview. It was taken as a given that, in human societies, there will be those among us who will be unable to make the mental leap from the concrete to the abstract, and for this reason, it was necessary to defend mythology as part of human heritage, a part that has its significance in transmitting ethic and moral values from one generation to the next. As such, discussions of such human values as virtue, justice, friendship, could only be transmitted through the silly stories of mythology. This is well articulated by Luc Brisson in How Philosophers Saved Myths: Allegorical interpretation and Classical Mythology. This was ol time religion.

The Bible, the Quran and the Vedas brought new kinds of stories, whose underpinning was the construction of new moral orders. The new texts brought in their wake the new religions of Islam and Christianity, but Hinduism, Shintoism and Traditional African and Amerindian religions are still remnants of the primeval spiritual order. There has always been what the British Rabbi Sir Jonathan Sacks has called the Persistence of Faith throughout human history, to the present.

In the Western intellectual tradition, the Renaissance is hailed as a New Era, but in fact, it was no more than an attempt to reclaim through the back door the pagan spirituality deriving from Classical and Late Antiquity. The intellectuals of the period, be they artists, creative writers or philosophers, were weary of the stranglehold of Christianity on all aspects of society, and sought to liberate themselves from this straight-jacket. Other, non-Western, societies did the same by creating a discourse counter to that of the religious. That is how the Arabian Nights were born, from ancient India all the way to what is today the Middle East. This was something like a literary carnival, where imagination was allowed to run wild outside the orbit of religion. These were all attempts at circumventing the official discourse dominated by men of religion and sanctioned by the rulers. Contemporary World Literature is incomprehensible without this mythological, spiritual background, because whether we speak of Greek/Roman mythology, African, Hindu or Japanese or Amerindian mythologies, the Holy Scriptures of Christianity, Islam or Hinduism, these are part of the collective unconscious, and form an important part of the inter-textuality necessary to self-referentiality.

Creative writers have for centuries situated themselves within particular spiritual traditions while creating works of art. This is taken for granted in the West. The medieval period in the West is considered collective because all European societies, without a single exception, went through the long experience of Christianity, from the tenth century all the way to the early twentieth century, with intermission for the Reformation and the Enlightenment. Although writers are situated within particularistic traditions, some, because of their intellectual versatility, have dipped into traditions that are not primarily their own, and claimed them for themselves by taking allusions from those external traditions. For example, Dante borrowed from the story of the Ascension of Prophet Muhammad to Heaven as recounted in the Hadith of the Prophet to construct his Divine Comedy. Or, to take a more contemporary figure, in his novel Spiders House, Paul Bowles uses the story of the Prophet Muhammads anecdote about his being protected from his enemies by hiding in a cave on his way into exile in Medina. Spiders form a protective wall with their web which stops his enemies from pursuing him further. Or Salman Rushdies constant allusions to Hindu mythology in Midnights Children.

This cross-cultural enrichment does not necessarily mean that writers do not situate themselves solidly within their religious traditions. Indeed they do.

The two writers that we have chosen, Leila Aboulela, a Sudanese novelist currently based in Aberdeen, Scotland, and Marjorie Oludhe Macgoye, are examples of novelists who still stick to religion as their default mode of literary exposition. Both use fiction to advance their sectarian viewpoints without being offensive to secularists or the non-religious in general.

Leila Aboulela, throughout most of her fictions, novels and short stories, has tried to defend Islam as a spiritual religion, and not a political religion. That she should hold such a position is evident from her own background as a Sudanese. Mystical Islam, with its headquarters at Omdurman, is very much part of the Sudanese landscape. In fact, modern Sudan is dated at the point the Sudanese resisted British colonial encroachment under Lord Gordon Kitchener in the nineteenth century. Led by Muhammad al-Mahdi, Restorer of the Faith, the Sudanese rallied under his mystical brotherhood to push the British out, resulting in the death of Gordon. This millenarianism galvanized the Sudanese into a national consciousness embedded in Islam. Like much of West Africa, society in the Sudan is organised partly around belonging to a brotherhood. The brotherhoods double as communities of self-help and also as spiritual sanctuaries complete with an organisational structure. The main activities of these Sufi brotherhoods are centred on remembering Allah and his ubiquitous presence in the thoughts and actions of individuals.

Image of Leila Aboulela

It is important to stress that Sufi religiosity is based on individual accountability that is ultimately anchored in internal purification as prioritised before the practice of ritual. It tends to de-emphasise the legalistic aspects of the faith, unlike for the Salafis, for example, who give importance to the minutiae of ritual practice. This legalistic emphasis on the part of the Salafis pits them against the purely spiritual emphasis of the mystics.

Leila Aboulela, in her fictions, is at pains to point out that what is done in the name of Islam has nothing to do with Islam, and that those who are prone to violence only do so after they have politicised Islam by demanding, for example, the establishment of an Islamic state, the Khilafah, or Islamic Caliphate. Sufi immersion in God-consciousness is considered a form of escapism from the challenging political and economic realities of the Islamic world. On their part, the Sufis accuse the Salafis of sanctimonious ostentatiousness and consider themselves to be the real upholders of the prophetic message of peace and love, without at the same time holding to the highest standards set by the Prophet himself.

On reading Aboulelas fiction, one is left with the impression that she tries to compress the whole Islamic ethos and practice within her short fiction, where readers will not only enjoy the storyline, but at the same time gradually learn what the real Islam or Islamic practice is. In reading her fiction, we are taken through all the essential, but simple Islamic practices and beliefs without seeming to be coerced. The message is that Islam is such a practical and simple faith that it cannot be distorted or abused without exposing those who want to put the religion to their own nefarious uses. For example, Dr Nizar Fareed, a Salafi character in The Translator, is portrayed as well-intentioned but indoctrinated by rigid Salafi interpretations of the scripture and the practice of the Prophet. He emerges as inflexible, opinionated and self-righteous. He appears as some kind of cardboard character, uncritical and gullible, although kind and intelligent.

Leila Aboulela encapsulates the whole gamut of Islamic practice and belief in that short novel, The Translator

Leila Aboulela encapsulates the whole gamut of Islamic practice and belief in that short novel, The Translator. For example, she describes the cornerstone of Islamic belief as the absolute surrender to Allah in all ones actions, and believing that He is the one who proposes and disposes of the believers every action. They are helpless before His immense omnipotence. Although we may plan our actions, we must never lose sight of the fact that everything is preordained, and we should not be overly disappointed when things do not go our way. God consciousness entails our planning for the future, but not being deluded into believing that things will always go the way we have planned. This is the classical tawheed position, where, tawakkul, or total surrender to the will of God is the pure faith. Tawheed and tawakkul are the twin pillars on the road to sainthood. The fragility of human life makes it necessary for humans to acknowledge the presence of a force mightier than any human society can command. In fact, Sammar, the main protagonist in The Translator, is sustained in her grief by her total surrender to the will of Allah. Her strong faith sees her through unimaginable grief after the loss of her young doctor-husband in a tragic road accident in Aberdeen, Scotland, far from home, where she finds succour and help from absolute strangers whom she only knows through shared faith and belief in Islam. They take over the funeral arrangements, the washing of the body and its transportation to Khartoum for burial, without having known the deceased or the widow. They answer the call of Islam to help one another in a time of need, the true implementation of Islamic teachings. In a poignant scene, Aboulela, using Sammar as her mouthpiece, describes this communal involvement during the arrangements immediately after the death of her husband:

A whole week passed before she got him under the African soil. It had taken that long to arrange everything through the embassy in London: the quarantine, the flight. People helped her, took over. Strangers, women whom she kept calling by the wrong names, filled the flat, cooked for her and each other, watched the everwondering child so she could cry. They prayed, recited the Quran, spent the night on the couch and on the floor. They did not leave her alone, abandoned. She went between them dazed, thanking them, humbled by the awareness that they were stronger than her, more giving than her, though she thought of herself as more educated, better dressed.

Islamic teachings are inserted in a subtle way at appropriate places to create the desired effect. The Hadith of the Prophet are summarised and included as explanatory tropes to affirm Islamic teachings. For example, all the major issues at the core of Islam like tawheed, qadar, or predestination, prayers, charity, the apportionment of inheritance to both male and female inheritors, the etiquette of grieving for widows, are highlighted. These issues are introduced seamlessly without appearing as sermonising. As an illustration, Sammar tries to convince Rae, her new-found love, to recite the declaration of the intention to embrace Islam. She notes the simplicity of the creed itself by getting Yasmin, Sammars friend, to say that the creed has sometimes been abused or taken lightly, as some kind of fig leaf to mask relationships between a Muslim and a non-Muslim:

I have seen the kind of Scottish men who marry Muslim girls. Yasmin went on, The typical scenario: he is with an oil company sent to Malaysia or Singapore; she is this cute little thing in a mini-skirt whos out with him every night. Come marriage time, its by the way Im Muslim and my parents will not let you marry me until you convert. And how do I convert my darling, I love you, I cant live without you? Oh, its just a few words you have to say. Just say the Shahadah, its just a few words. I bear witness there is no god but Allah and Muhammad is the Messanger of Allah. End of story. They get married, and she might as the years go by pray and fast or she might not, but it has nothing to do with him. Everything in his life is just the same as it was before.

On Tawakkul and destiny, Aboulela is also discreet in her explanation:

Her fate was etched out by a law that gave her a British passport, a point in time when the demand for people to translate Arabic into English was bigger than the supply. No, she reminded herself, that is not the real truth. My fate is etched out by Allah Almighty, if and who I will marry, what I eat, the work I find, my health, the day I will die are as He alone wants them to be. To think otherwise was to slip down, to feel the world narrowing, dreary and tight.

Further on in the novel, Sammar ascribes her steadfastness and hope to spiritual underpinnings. Her spirituality acts as a shield that protects her from hopelessness and resignation: She had been protected from all the extremes. Pills, break-down, attempts at suicide. A barrier was put between her and things like that, the balance that Rae [her love] admired.

Leila Aboulela compares the real rational position of Islam, based on transcendence and the rationalism of the empiricist and positivists of the eighteenth/nineteenth centuries. In the words of Rae, who hovers between positivism and doubt,

In this society, he said, in this secular society, the speculation is that God is out playing golf. With exceptions and apart from those who are self-convinced atheists, the speculation is that God has put up this elaborate solar system and left it to run itself. It does not need Him to maintain it or sustain it in any way. Mankind is self-sufficient . . .

The rational and plausible Islamic belief system is validated by the, until then, non-Muslim Rae. Having read Islamic religious and other literature, he is gradually won over by this rationality. But he validates Islamic tenets through a third party, Raes uncle who went native or in Tudor parlance, turned Turk. He quotes from Uncle Davids epistolary confession:

David never of course said that Islam was better than Christianity. He didnt use that word. Instead he said things like it was a step on, in the way that Christianity followed Judaism. He said that the Prophet Muhammad was the last in a line of prophets that stretched from Adam, to Abraham through Moses and Jesus. They were all Muslims, Jesus was a Muslim, in a sense that he surrendered to God. This did not go down very well in the letter nor in the essay.

Leila Aboulela takes the opportunity in her fiction to also explain how the Sacred Hadith, or what are better known as Hadith Qudsi, the second most important source of authority after the Quran, came about, while dictating to Rae, who gave her the assignment:

She sat on the floor of the landing and read out, over the phone, the notes she had made from the book. A definition given by the scholar al-Jurjani, A Sacred Hadith is, as to its meaning, from Allah Almighty; as to the wording, it is from the Messenger of Allah, peace be upon him. It is that which Allah almighty has communicated to His Prophet through revelation or in dream and he, peace be upon him, has communicated it in his own words. Thus the Quran is superior to it because, besides being revealed, it is Allahs wording. In a definition given by a later scholar al-Qari, . . . Unlike the Holy Quran, Sacred Hadith are not acceptable for recitation in ones prayers, they are not forbidden to be touched or read by one who is in a state of ritual impurity . . . and they are not characterized by the attribute of immutability.

This is heavy stuff for the uninitiated, and requires extra work to understand this background, even for an average educated Muslim, let alone one who is completely unfamiliar with the Islamic intellectual tradition. This is the kind of intertextuality that is not easily accessible for western readers who mostly read texts from the Western intellectual tradition, and whose allusions are generally familiar. Postcolonial writers now demand that Western readers also exert themselves in order to benefit fully from their reading, just as non-Western readers have to immerse themselves in the Western intellectual tradition to fully enjoy literature emanating from the West. In a recent collection of essays, Can Non-Europeans Think? the Columbia University Iranian American scholar Hamid Dabashi decried the provincialism of Western intellectuals. He argues that rarely do Western intellectuals bother to educate themselves about the intellectual traditions of the others, although they will not shy away from making uninformed pronouncements about those societies that they know little about. He gave the example of Slavoj Zizek, who knows a lot about Marxism and the Western Intellectual tradition, but next to nothing about the Eastern ones. In his view, there is a lot of navel-gazing among them, unable to appreciate other traditions unless they are themselves area specialists churning out papers for policy think tanks, and regurgitating the same orientalist pieties.

Leila Aboulela assumes herself a conscientious and responsible Muslim, whose obligation it is to portray what she believes is the real image of Islam, untainted by its association with the Islamic lunatic fringe hell-bent on wreaking global terror, without any sectarian differentiation. It is through literature that she feels she can best serve her faith. She is conscious of the fact that as a liberal Muslim, she is under constant pressure, like all liberal Muslims to condemn acts of violence perpetrated in their name by their co-religionists. In a column in the British Guardian entitled Why Must Britains Young Muslims Live With Unjust Suspicion? she described the double jeopardy of these liberals:

The causes and solutions can be hotly debated but it makes little difference to the daily life of Muslims. Until this climate [of fear and suspicion] eases, the day-to-day anxiety, the feeling of being tainted, of being tested, will still be the same. Ironically, it is the liberal integrated Muslims who bear the brunt. On them lies the responsibility of explaining and apologising. If you live in the kind of ghetto where you never read newspapers, never make friends with non-Muslims, never participate in sports, you can feel safe and oblivious. Start to engage and you will immediately realise just how careful you need to be. Young British Muslims are being watched. This is not paranoia. This is just how things are after 9/11 and 7/7.

From the above it is clear that Leila Aboulela took it as her mission to explicate the tenets of Islam to a wider public as a contribution to mutual understanding between Muslims and people of other faiths and other worldviews. A hard sell this, the defence of Islamic values under the present climate of fear and suspicion. One may also wonder how much mileage she can extract from mining this theme, even under these trying circumstances.

Unlike in the fiction of other writers of Islamic faith, where Islam merely forms the background, as in Nuruddin Farahs later fictions The Closed Sesame and Crossbones, and Naguib Mahfouzs Cairo Trilogy, Leila Aboulela is deliberate in foregrounding Islamic belief system and practice. It is as if she was an author with an agenda, which she turns out to be in this particular fiction. In this regard, her creative work has more affinity with that of Marilynne Robinson who puts her creative energies to wearing her religion on her sleeve, as does Aboulela in The Translator.

Marjorie Oludhe Macgoye, who died in December 2015, is a Kenyan novelist of British descent and a lay Protestant missionary. She came to Kenya in 1954 to work for the Church Missionary Society, fell in love with the country and in 1960 married Dr. Daniel Oludhe Macgoye, a local doctor from the Luo tribe, one of the largest ethnic groups in the country, with whom she had four children. Over the years, she took all the necessary steps to become fully integrated into Kenyan society, and especially completely within the Luo culture; she learned the language to complete spoken and written fluency and accepted almost all aspects of Luo tradition, except those she deemed inimical to Christian values and virtues.

Image of Marjorie Oludhe Macgoye

Macgoye is a well-informed and conscientious novelist, having graduated with a degree in English literature from the Royal Holloway College, University of London, and later earned a Masters from Birkbeck College, University of London. Her grasp of Kenyan political history, and the social changes that she has witnessed personally throughout her extended stay in Kenya, put her in the same intellectual league as the most famous Kenyan novelist, Ngugi wa Thiongo. In fact, Macgoyes fiction covers the same terrain as that of Ngugi because they seem to have lived almost the same experiences of colonialism and post-colonialism, and their works are a mirror of contemporary history through their neo-realism.

Marjorie Oludhe Macgoye arrived in the country when she was barely in her mid-twenties, and lived the next sixty years mostly in Kenya, with a short interlude in Tanzania as the bookshop manager at the University of Dar es Salaam. During her long residence in Kenya, she witnessed almost all the major political events that shaped the nation: the Mau Mau insurgency, independence, the struggle to create a unified nation out of a welter of ethnicities, tribes, religions and political ideologies. As acute observers of the Kenyan political scene, both Ngugi and Macgoye write proletarian fictions populated by perplexed and dislocated rural masses and the lumpen proletariat who have washed up in the urban areas because of colonialism and post-independence mass migration.

Macgoyes fiction is populated mostly by female characters, strong women who struggle against all odds. They are mostly uneducated but pick up street smarts as they go through lifes trajectory. Female characters like Paulina and Amina are portrayed as strong characters, Amina with her strong entrepreneurial spirit, and Paulina gradually asserting her individuality in the face of constricting tradition.

The main theme in Macgoyes best known fiction, Coming to Birth, is the interrogation of anachronistic obsolescent cultural traditions

Perhaps the main theme in Macgoyes best known fiction, Coming to Birth, is the interrogation of anachronistic obsolescent cultural traditions. In fact, it appears that in the case of this particular novel, many aspects of Luo culture are held up to be antithetical to all that Christianity stands for. The novel critiques such time-honoured cultural practices as polygamy, levirate marriages, lavish and extravagant wake and funeral practices and the cultural sanctioning of domestic violence in the form of wife beating.

Although the Luo as an ethnic group is considered overwhelmingly Christian, this Christianity is more a veneer than actual substance. The Luo are portrayed as stuck in the cultural past more than many other ethnic and cultural groups. The Luo are held up and judged by the highest Christian practices and standards, and are ultimately found wanting. But in the tribal world of the Luo, cultural practices were considered more humane than the dictates or demands of Christianity. We see, for example, Paulina, the main protagonist in the novel, going through miscarriages, the harassment of being a childless woman in a society that believes in the strength of numbers, the grief of losing a child obtained outside the matrimonial bed, and the state of limbo that the husband keeps her in because, in Luo culture, once a woman is married, she is married for ever as her husband has a permanent claim on her, however cold the relationship throughout their lives. The husband is never sanctioned for shunning her, physically molesting her and completely neglecting her. Christian values are merely paid lip service. In fact, there is general apathy, if not outright cynicism, towards Christianity among the majority. Martins alienation from Christian practice is held up as the general religious malaise afflicting the new generations of post-independence Africans. The narrator notes of Martin that:

He did not regularly go to church any more, though he might go if there was a special speaker or if he felt particularly at odds with Paulinas having sometimes to work on a Sunday. The climate had changed from the days when you used to say, I am a Christian but I am not yet saved. To praise the Lord no longer helped you to get a job, and though the top people attended places of worship in surprising numbers they were eager for a quick getaway. It was another way in which light was going out. People talked about religion on buses, in queues, in cafes you heard them talking, but often as though it was something dull, outside themselves.

The celebratory ambience in Luo mourning practices is brought into sharp relief by Macgoye. By letting a comment slip off the mouth of a Kikuyu, a people who are noted for their industriousness in wealth accumulation, the macabre Luo enthusiasm for partying on such occasions is described with a pithy comment from a shopkeeper. In the words of the narrator:

Kano had kept the old hedged homesteads more exactly than the other locations, and also a bigger share of the old plumed headdresses: teams of male dancers bedecked with feathers and bells and intricate chalk patterns were often to be seen going off to the funerals and other public occasions like the Kisumu Festival. Okeyo used to get excited, chattering and pointing till she restrained him, so that the kikuyu shopkeeper remarked somberly, He is a real Luo: more keen on a funeral than anything else.

Okeyo was the child that Paulina had begotten outside her marriage with Simeon, a clansman of Martins, and who was fatefully killed by a stray bullet during the funeral procession of the legendary Kenyan politician, assassinated in broad day light, in one of Nairobis busiest streets, on a July day in 1969.

As a counterfoil to Christianity and Christians, Islam and Muslims are portrayed in a less than flattering light through the characters of Amina and Fauzia; as either whores or parents pimping for their own children for survival and livelihood. Both Amina and Fauzia are held responsible for the loosening ties between the rural import, Paulina and her urbanised Martin. Both Amina and Fauzia come out, not only as femmes fatales, but also as some kind of mercenaries out to fleece Martin and lure him to the temptation of sin in the form of nice food, nice dresses and perfumes. Pauline was later to see with her own eyes what Nikos Kazantzakis described these nubile nymphs as: This labyrinth of hesitation, this poison that tastes like honey. Pauline wanted to find out for herself what life for Martin was like in Aminas grip:

Amina proved unexpectedly expert with powder and feeding bottle and soon afterwards approached the pastor about baptism for the child but bowed to the rule that since there was no Christian parent, Joyce must make her own profession when she could read and write. The baby made a good pretext for Pauline to come and see Amina from time to time. Little by little she built up a picture of a world quite remote from her own, a world of gay wrappers and jingling bracelets and perfumes and spicy dishes, where slim men with bony features came and went, for what purpose one was not quite aware, and of town houses where these urbane traditions from the coast somehow collected themselves despite the bare crumbling walls and the outlandish cold . . .

Swahili culture is taken as a synecdoche for Islam and all that it stands for, what are perceived as its negative influences among the relatively recent native converts to Christianity. Fauzia was later to be warned of the possibility that he, Martin, might take another wife, but of a different kind:

And so he told her that when he took a second wife she must be a Christian who would leave her hair unplaited and her ears without ornament, who would dig in the fields and plaster walls and leave her children fat and naked. But she only laughed and said she must enjoy herself a while longer.

Marjorie Oludhe Macgoye seems to believe her duty is not to be even-handed when she has to confront the reality that Islam is a major religion and a rival to Christianity in Kenya. In this regard, she takes the opportunity to show what she considers the superiority of Christianity over Islam. She uses her fiction to re-affirm her own faith and its tenuous hold on the relatively new converts on the African continent. Her last work of fiction, Rebmann, is a celebration of the efforts of pioneer missionaries like Rebmann and Krapf, who ventured into Africa in the middle of the nineteenth century to win the flock for Jesus Christ in what was then unexplored terrain in the heart of Africa, or the Conradian Heart of Darkness, as Africa was perceived then. Macgoye was later to come to Kenya under the auspices of the same organisation that sponsored the German missionary, the Church Missionary Society.

Looking at name use in her Coming to Birth, there is a lingering feeling that Macgoyes ancestors, probably Jewish refugees from Eastern Europe who migrated to England from continental Europe to escape pogroms there, might have converted to the Anglican Christian rite upon their settlement. Female characters are given common scriptural names pointing to Old Testament antecedents, names like Paulina, Rebecca, and Rachel, names popular with people of Jewish background. Again, one of her more obscure fictions set in Kenya is A Farm Called Kishinev, described as a fairly comprehensive picture of Kenyan Jewish experience.

Marjorie Oludhe Macgoyes working class background and sympathies enable her to empathise with the plight of the African poor and downtrodden. Her descriptions of the African great unwashed is accurate in that it is described as a life of ceaseless want and deprivation. Nairobi is notorious for its parking boys, an expression that is a euphemism for abandoned and homeless kids, who are often orphaned and use their street-smarts to survive in a highly competitive and unforgiving environment. Their situation is so dire that they have to live off dustbins, and sometimes resort to using human waste as a weapon to extort money from passers-by threatening to smear them with it if they do not respond generously. The tough struggle for survival is described with pathos, in the words of one such street urchin:

So my dad said we couldnt go on to school for a while because he need all his money to get another woman to look after us. And when he was there she was alright to us, but she started going queer when she got her own baby: then she hated the sight of us and used to beat us for every little thing. And then last year she started saying that she didnt get married to come and live in a back-of beyond village with a load of kids, and not any rice or hair oil or nice soap like her friends had for their babies, and only seeing her man one day or two in the month, and then she started to drink. And then she didnt cook everyday, and never early in the morning, and started saying it was our fault that my dad didnt pay her attention. He only wanted his first wifes children and all that. In the end my little brother got so hurt he ran off to his granny: she doesnt have much, but she likes him and tells him stories. But my sister had to stay to look after the baby, so my dad said. But me, she said I didnt do anything around the place but eat, and so one day when she beat me worse than usual I ran to my friends big brother who is a conductor on a country bus, and he talked with his dad and put some ointment on the bad places and gave me a ride on the bus free. That was about two months ago.

He didnt know anything, put in Muhammad Ali. Lucky for him I found him wondering about. I showed him the temples, where they give you free food if there is celebration going on. And how to find the eating places, where good food sometimes gets thrown out when they close, and how- well, all sorts of things I showed him. He just didnt know how to stay alive.

Macgoye captures the spirit of anxiety and desperation among those living on the edge.

Both Leila Aboulaela and Marjorie Oludhe Macgoye have used the art of fiction to push their religious agenda, using fiction to both affirm and defend their belief systems in a world that had increasingly come to see religion as dragging us to the medieval bloodletting that so characterised that period. But of late, there has been an upsurge in writers who have unashamedly proclaimed their fidelity to the time-honoured beliefs of their societies and the era in which they are living. This is also an era when we see the rise of militant atheism too, that is challenging the religious discourse and looking for a much wider space than they have ever been accorded. The problem with this kind of genre, where fiction is put at the service of religious sectarianism, is that it soon becomes tiresome in its self-righteousness and tiresome for the secular-minded; these are often people who are also set in their ways of thinking, determined to draw a line between the religious and public space.

Excerpt from:

MOHAMED BAKARI - The Return of the Repressed: Religion in the Fictions of Leila Aboulela and Marjorie Oludhe Macgoye - The Elephant

Delingpole: Most Britons Still Too Scared to Leave Home – Breitbart

Scary propaganda has proved so successful that most Britons are now too frightened to leave their homes, either with or without a lockdown, an academic has warned.

Sir David Spiegelhalter, a statistician at the University of Cambridge, told BBC Radio 4s Today programme:

Many people are definitely overanxious about their chance of both getting the virus and the harm they might come to if they do get it.

He added that the British governments message for everyone to stay at home unless strictly necessary had been slightly too successful and that perhaps there should now be a campaign to encourage people to get out and start living again.

As Lockdown Sceptics reports, this problem has been confirmed by polling.

[The Government] has whipped up the public into such a frenzy of blanket-clutching fear, aided and abetted by the hysteria of the mainstream media, that a significant percentage may not dare venture outside for non-essentials. According to polling by Ipsos Mori, more than 60 per cent of people would feel uncomfortable going to bars and restaurants or using public transport after the lockdown is over, more than 40% would be reluctant to go shopping or send their children to school and more than 30% are worried about going to work or meeting friends.

Britains lockdown, it is becoming increasingly clear, is now driven more by political calculations than scientific ones. Boris Johnson and his nervous administration, crippled by their fear of opinion polls, lack the confidence to announce an end to the lockdown until they feel the public is ready for it.

This is the availability cascade of which economics professors Donald Siegel and Robert M Sauer warned in March, in one of the first major articles criticising British and U.S. lockdown policy.

Writing in the Jerusalem Post, they described lockdown as amisguided social experiment designed by unelected public health officials and driven by the dangerous interplay between media and policy makers.

The phrase availability cascade was invented by Nobel laureate Daniel Kahneman to describe the vicious circle whereby public hysteria and craven politicians feed on one another with disastrous results.

According to Siegels and Sauers article:

An availability cascade is a self-sustaining chain of events which may start from media reports of a relatively minor event and lead up to public panic and large-scale government action. On some occasions, a media story about a risk catches the attention of a segment of the public, which becomes aroused and worried. This emotional reaction becomes a story in itself, prompting additional coverage in the media, which in turn produces greater concern and involvement.

The cycle is sometimes sped along deliberately by availability entrepreneurs, individuals or organisations who work to ensure a continuous flow of worrying news. The danger is increasingly exaggerated as the media compete for attention-grabbing headlines.

Scientists and others who try to dampen the increasing fear and revulsion attract little attention, most of it hostile: Anyone who claims that the danger is overstated is suspected of association with a heinous cover-up.

Britains mainstream media cheer-led by demagogues such as Piers Morgan has often appeared worryingly eager to play up the horrors of the pandemic, while doing little to raise concern about the economic and social damage of keeping an entire nation under virtual house arrest for weeks on end.

This is now beginning to change. The mainstream media, mindful of the massive damage being done to the economy and its own balance sheets by the hysteria it has itself generated, is working in coordination with the government to try to shift the public mood.

Here, for example, is the Sunquoting three former Chancellors, all warning that the UK economy may never fully recover from coronavirus crisis.

It begins:

Britains economy might never recover fully from the coronavirus crisis and Britain will not enjoy a V-shaped bounce, three former Chancellors have warned.

LaboursAlistair Darling, who was Chancellor during the last recession, said whether the economy recovers at all will depend on decisions the Government takes in the next three to four weeks.

And:

His predecessor Norman Lamont warned of mass job losses, with companies finding they can operate with fewer people, while some businesses will disappear completely.

One frustrated British businessman, Simon Dolan, is now seeking to challenge the governments measures in a judicial review, which he hopes to support with a crowdfund. It is already almost halfway to reaching its 30,000 target.

Among his reasons for launching the challenge:

Small businesses continue to be badly affected. Businesses have been forced to shut, furlough staff and make cuts just in an attempt to survive.

Lockdown is also taking a huge toll on mental health and family life. Calls to the National Domestic Abuse helpline are up 49%. Referrals for cancer tests have fallen by 76%. It is estimated that 18,000 more people with cancer could die because of the disruption.

We are depriving children of a proper education and instead teaching them to hide away from uncertainty rather than to confront it.

It is now universally accepted that the lockdown will cause enormous long-term damage to both the economy and the general health of the population. No-one will be untouched by its effects, but the poorest in society will be by far the most affected.

His concerns are echoed by an op-ed in the Daily Telegraph another MSM imprint now trying to dial down the hysteria and inject a note of pragmatism into public debate by Scott Atlas of Stanford Universitys Hoover Institution.

Atlas offers five facts that show lockdown is a mistake. They are:

But articles like this appeal to rationalism and not to the raw emotion now governing large swathes of Britain. The lockdown, it seems likely, still has some way to go.

Continued here:

Delingpole: Most Britons Still Too Scared to Leave Home - Breitbart

Neither AIA Proceeding nor Government Infringement Constitute Fifth Amendment Taking – JD Supra

Updated: May 25, 2018:

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Neither AIA Proceeding nor Government Infringement Constitute Fifth Amendment Taking - JD Supra

Is the Takings Clause a "self-executing" waiver of sovereign immunity? – Reason

Last week I posed a question: "can a plaintiff seek compensation for an unconstitutional taking, without relying on the Tucker Act's jurisdictionif not under the Takings Clause, perhaps under some theory of tort." This post will shed some light on this question, though I still have not yet reached a firm conclusion. And the fifth post in my bump stock series will, alas, have to await further consideration (See Parts I,II,III, andIV).

As a general matter, the federal government cannot be sued for damages without its consent. Congress has waived its immunity through several statutes. For example, the Federal Torts Claims Act provides a limited waiver of sovereign immunity for certain types of torts. And the Supreme Court has alsoimplied certain waivers of sovereign immunity. Through so-calledBivensclaims, plaintiffs can seek monetary damages for violations of the Fourth and Fifth Amendment. But the Supreme Court has held that there is no waiver of sovereign immunity for suits based on other provisions of the Bill of Rights, such as the Eighth Amendment. And in recent years, the Supreme Court has put the brakes on future Bivens claims. This much is straightforward doctrine.

But what about the Takings Clause? It is the only provision of the Bill of Rights that clearly states landowners are entitled to monetary damages: "nor shall private property be taken for public use, without just compensation." Is the Takings Clause a self-executing waiver of sovereign immunity?

In traditional eminent domain questions, the issue of sovereign immunity is irrelevant. Why? The government initiates a condemnation proceeding against a landowner. In other words, a private landowner does not need to sue the federal government. But there is another common type of takings case, known as an inversecondemnation suit. Here, the government regulates a person's property, but insists there is no taking. Then, the landowner sues the federal government, alleges a violation of the Takings Clause, and seeks "just compensation."

Congress has enacted two relevant statutes that purport to waive sovereign immunity for inverse condemnation suits. First, the Tucker Act gives the Court of Federal Claims jurisdiction to hear takings claims against the federal government where the property is worth more $10,000. It provides, in part:

TheUnited States Court of Federal Claimsshall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act ofCongressor any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort

The Tucker Act does not expressly mention takings, but claims under the Fifth Amendment are "founded . . . upon the Constitution." (They also "arise under the Constitution.") The Court of Federal Claims is an Article I court: the judges serve for fifteen year terms, and there are no jury trials. Second, the Little Tucker Act gives all federal district courts jurisdiction to hear takings claims against the federal government where the property is worth less than $10,000. It provides, in part:

The district courts shall have original jurisdiction, concurrent with the United States Court of Federal Claims . . .

Any other civil action or claim against the United States, not exceeding $10,000 in amount, founded either upon the Constitution, or any Act ofCongress, or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort, except that the district courts shall not have jurisdiction of any civil action or claim against the United States founded upon any express or implied contract with the United States or for liquidated or unliquidated damages in cases not sounding in tort which are subject to sections 7104(b)(1) and 7107(a)(1) of title 41

These cases are heard by Article III judges, but jury trials are not permitted. Under both statutes, appeals are heard by the U.S. Court of Appeals for the Federal Circuit, an Article III court. (Fun fact: John Randolph Tucker, the namesake of the Tucker Act, was the grandson of St. George Tucker.)

Can a plaintiff seek compensation for an unconstitutional taking, without relying on the Tucker Act's jurisdiction? I think this question has not been squarely resolved by the Supreme Court. The Supreme Court denied certiorari on a closely-related question in 2018. Brott v. U.S. presented this question: "Can the federal government take private property and deny the owner the ability to vindicate his constitutional right to be justly compensated in an Article III Court with trial by jury?"

In Brott, the Plaintiffs filed an inverse condemnation suit against the government in federal district court, but requested more than $10,000. They also requested a jury trial. The complaint cited Section 1331 federal question jurisdiction. They acknowledged the Little Tucker Act did not support their claim, because the amount in controversy was more than $10,000. Therefore, they argued that the "action is founded upon the Constitution" itself. That is, "arising under" jurisdiction through 28 U.S.C. 1331. It provides:

The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.

And the Plaintiffs claimed that the Little Tucker Act itself was unconstitutional:

In the Tucker Act and Little Tucker Act, 28 U.S.C. 1346 and 1491, Congress vested the Court of Federal Claims with exclusive jurisdiction to hear all claims against the United States "founded upon the Constitution" where the amount in controversy exceeds $10,000. To the extent Congress created the Court of Federal Claims as an Article I legislative court free of Article III's requirements and vested the Court of Federal Claims with jurisdiction to hear claims "founded upon the Constitution" these provisions are unconstitutional.

The District Court rejected their claims, as did the Sixth Circuit. The Court found that it lacked subject matter jurisdiction over takings claims, even though takings claims "arise under the Constitution."

28 U.S.C. 1331 (1976), the general federal question provision, does not provide a jurisdictional basis on these facts. The Fifth Amendment "taking" claim "arises under the Constitution," and a remedy for a violation of this provision arguably does not require a waiver of sovereign immunity. However, a number of cases indicate that Congress has made the Court of Claims the exclusive and an adequate forum for the Fifth Amendment claims, at least those over $10,000. We conclude that 28 U.S.C. 1346(a)(2) [the Little Tucker Act] expressly limits the district court's jurisdiction over these types of claims against the government to those not exceeding $10,000 in amount and that to utilize the court's federal question or pendent jurisdiction as to the Fifth Amendment claim would override the express policy of Congress embodied in the Tucker Act. Lenoir v. Porters Creek Watershed Dist., 586 F.2d 1081, 1088 (6th Cir. 1978).

The Circuit Court also held that the general grant of jurisdiction in Section 1331 does not trump "the Little Tucker Act's specific and limited grant of jurisdiction." As best as I can tell, the Supreme Court has never addressed this question concerning Section 1331. I will address it at the end of this post.

Next, the Circuit Court found that "Congress may also decline to waive sovereign immunity, or it may withdraw or modify its consent to suit, even if the right at issue is drawn from the Constitution." In other words, Congress needs to waive its sovereign immunity, even where the federal government "takes" private property. The Fifth Amendment, therefore, is not a self-executing waiver of sovereign immunity. The Court explained, "Sovereign immunity, however, does not distinguish between congressionally created entitlements and constitutionally created rights."

The landowners countered that an explicit waiver is not necessary for the Takings Clause:

Nevertheless, the landowners argue that an explicit waiver is unnecessary here because the Fifth Amendment right to just compensation is a "self-executing" right and the right to compensation itself contains a waiver of sovereign immunity. The Supreme Court has indeed referred to the Fifth Amendment right to just compensation as "self-executing." First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304, 315 (1987). The Supreme Court has explained that a Fifth Amendment takings claim is self-executing and grounded in the Constitution, such that additional "[s]tatutory recognition was not necessary." Id. (quoting Jacobs v. United States, 290 U.S. 13, 16 (1933)); see United States v. Dickinson, 331 U.S. 745, 748 (1947).

But the Sixth Circuit rejects this argument:

However, the fact that the Fifth Amendment creates a "right to recover just compensation," First English, 482 U.S. at 315 (quoting Jacobs, 290 U.S. at 16), does not mean that the United States has waived sovereign immunity such that the right may be enforced by suit for money damages. See Minnesota v. United States, 305 U.S. 382, 388 (1939) ("[I]t rests with Congress to determine not only whether the United States may be sued, but in what courts the suit may be brought.").

Here is the full quote fromFirst English:

[A] landowner is entitled to bring an action in inverse condemnation as a result of the "selfexecuting character of the constitutional provision with respect to compensation" ***. As noted in Justice Brennan's dissent in San Diego Gas, it has been established at least since Jacobs [v. United States, 290 U.S. 13 (1933)] that claims for just compensation are grounded in the Constitution itself *** Jacobs *** does not stand alone, for the Court has frequently repeated the view that, in the event of a taking, the compensation remedy is required by the Constitution.

in his Webster v. Doedissent (1988), Justice Scalia also seemed to reject the self-executing argument the landowners advanced:

The doctrine of sovereign immunitynot repealed by the Constitution, but to the contrary at least partly reaffirmed as to the States by the Eleventh Amendment is a monument to the principle that some constitutional claims can go unheard. No one would suggest that, if Congress had not passed the Tucker Act, 28 U.S.C. 1491(a)(1), the courts would be able to order disbursements from the Treasury to pay for property taken under lawful authority (and subsequently destroyed) without just compensation.

The Circuit Court then explained there are two requirements for a waiver of sovereign immunity:

The United States argues that a waiver of sovereign immunity typically requires two things: [1] the existence of a right and [2] provision of a judicial remedy. The Fifth Amendment details a broad right to compensation, but it does not provide a means to enforce that right. Courts must look to other sources (such as the Tucker Act and the Little Tucker Act) to determine how the right to compensation is to be enforced. . . . The Tucker Act's waiver of sovereign immunity, therefore, is a necessary ingredient for just-compensation claims brought against the United States.

The Sixth Circuit also relied on history:

First, the landowners have cited no case in which the Fifth Amendment has been found to provide litigants with the right to sue the government for money damages in federal district court.

(I'll address this historical argument later in the post).

The Sixth Circuit also held that "The landowners' compensation claims are public-right claims. These are claims made by private individuals against the government in connection with the performance of a historical and constitutional function of the legislative branch, namely, the control and payment of money from the treasury." (The public rights doctrine is very, very messy, and I will table it here).

Brott and the other landowners filed a cert petition. The petitioners argued that there is no need for a statutory waiver of sovereign immunity:

While a statutory waiver of sovereign immunity may be necessary to enforce a congressionally-created entitlement, this does not apply when the right being enforced is founded upon the Constitution itself. . . .

Because the right to just compensation arises directly from the Constitution, Congress cannot abrogate this right by statute. See Jacobs, 290 U.S. at 17 ("the right to just compensation could not be taken away by statute or be qualified by the omission of a provision for interest") (citing Seaboard Air Line Ry. Co. v. United States, 261 U.S. 299, 306 (1923), and Phelps, 274 U.S. at 343-44).

The Solicitor General opposed certiorari. The government stated that Congress is under no obligation to give the courts jurisdiction to hear takings cases:

In 1855, Congress established the Court of Claims "to relieve the pressure created by the volume of private bills." Mitchell, 463 U.S. at 212-213. The court's jurisdiction did not, however, extend to constitutional claims. "Most property owners" seeking compensation for asserted takings were thus "left to petition Congress for private relief, but Congress was neither compelled to act, nor to act favorably." 2 Wilson Cowen et al., The United States Court of Claims: A History 45 (1978) (Cowen). As a result, "many owners had suffered the misfortune of holding a legal right for which there was no enforceable legal remedy." Ibid. That situation led this Court to observe that "[i]t is to be regretted that Congress has made no provision by any general law for ascertaining and paying th[e] just compensation" owed for takings of private property by the United States. Langford v. United States, 101 U.S. 341, 343 (1880).

I am not sure Langford is directly on point. The Court's discussion of "just compensation" is more limited than the government suggests. Here is the full passage:

The other point is one which requires more delicate handling. We are not prepared to deny that when the government of the United States, by such formal proceedings as are necessary to bind it, takes for public use, as for an arsenal, custom-house, or fort, land to which it asserts no claim of title, but admits the ownership to be private or individual, there arises an implied obligation to pay the owner its just value. It is to be regretted that Congress has made no provision by any general law for ascertaining and paying this just compensation. And we are not called on to decide that when the *344 government, acting by the forms which are sufficient to bind it, recognizes that fact that it is taking private property for public use, the compensation may not be recovered in the Court of Claims. On this point we decide nothing.

The SG citesLangford to describe the state of the lawbeforethe Tucker Act was enacted. ButLangfordwas decided after the Tucker Act was enacted. Indeed, the appeal arose from the Court of Claims. I don't think this nuanced statement concerned sovereign immunity and the Takings Clause more broadly. I think this statement concerned the very precise fact pattern at issue inLangford. Here, property owners sued the federal government in the Court of Claims"to recover for the use and occupation of certain lands and buildings." And they advanced an implied contract theory that is referenced in the text of the Tucker Act. In any event, the Court doesn't resolve this issue. "On this point we decide nothing."

The SG also looked to history:

It was not until 1887 that Congress enacted the Tucker Act, waiving sovereign immunity and conferring on the Court of Claims jurisdiction to hear cases "founded upon the Constitution." Act of Mar. 3, 1887, ch. 359, 24 Stat. 505; see Mitchell, 463 U.S. at 214; Cowen 45-46. Thus, for the first century of our Nation's history, claims seeking compensation for asserted takings by the United States were resolved by Congress not by the courts.

The Sixth Circuit made a similar point. I'm not sure this history helps as much as the government suggests. Until 1875, there was no federal question jurisdiction. (It existed for a brief period after the Federalists enact the Judiciary Act of 1801, also known as the Midnight Judges Bill.) The only way to get into federal court was through diversity jurisdiction. The Tucker Act was enacted in 1887. And federal question jurisdiction (what became Section 1331) was created twelve years prior in 1875. It is unsurprising that there were no claims for takings based on federal question for the first nine decades after ratification.

I see here a parallel toHans v. Louisiana. The Eleventh Amendment made it impossible for a citizen of one state to sue another state in federal court. The text, at least, left open the question of whether a citizen could sue his own state in federal court. But until Congress created federal question jurisdiction, it was impossible for a citizen of one state to sue his own state in federal court. The only path to federal court was diversity jurisdiction. In 1875, Congress creates the federal question statute. Fast-forward to 1890. The Supreme Court decides Hans v. Louisiana. It holds that a citizen of Louisiana cannot sue the state of Louisiana. Here, the Supreme Court finally had an opportunity to address a question that was not resolved by the text of the Eleventh Amendment. (Or was it?) Indeed, it took nearly 15 years for the Supreme Court to address this question after the federal question jurisdiction was restored.

By way of comparison, twelve years after federal question jurisdiction was reimposed, Congress enacts the Tucker Act, which expressly waived sovereign immunity for takings claims. It is unsurprising during this twelve year gap, the Supreme Court did not have occasion to decide if the Takings Clause, by itself, effects a waiver of sovereign immunity.

Perhaps the most relevant case isU.S. v. Lee(1882). In this famous case, Robert E. Lee's son challenged the federal governments seizure of the land in Virginia that would become Arlington National Cemetery. The Solicitor General argued thatLee, as well as Larson v. Domestic & Foreign Commerce Corp, precludes Brott's claims.

Petitioners' "celebrated example" (Pet. 36) vividly illustrates their error. Petitioners correctly note (ibid.) that, in United States v. Lee, 106 U.S. 196 (1882), Robert E. Lee's son brought a suit challenging the United States' seizure of the land that became Arlington National Cemetery. But it was neither a suit seeking just compensation nor one brought against the United States. Instead, it was an "ejectment" action brought against individual federal officers under state law and seeking "to recover possession" of the land. Id. at 197- 198; see id. at 210 ("The case before us is a suit against Strong and Kaufman as individuals, to recover possession of property."). The Court in Lee recognized that Lee's son could not have sought compensation from the United States. Id. at 222. And this Court has since reaffirmed that, when "[t]he Lee case was decided in 1882," "there clearly was no remedy available by which he could have obtained compensation for the taking of his land." Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 697 n.17 (1949).

Here is the relevant passage fromLee. It doesn't say exactly what the SG argued:

Another consideration is, that since the United States cannot be made a defendant to a suit concerning its property, and no judgment in any suit against an individual who has possession or control of such property can bind or conclude the government, as is decided by this court in the case ofCarr v. United States, already referred to, the government is always at liberty, notwithstanding any such judgment, to avail itself of all the remedies which the law allows to every person, natural or artificial, for the vindication and assertion of its rights.

Here, I think "its" modifies "United States." This passage does not concern a landowner suing the federal government for regulating the landowners property. The facts of Lee are tortured, but it did not begin as a suit against the federal government; it originated as a state court action in ejectment against federal officials. I need to study the posture more closely.

And here is the passage from Larson:

The Court thus assumed that if title had been in the plaintiff the taking of the property by the defendants would be a taking without just compensation and, therefore, an unconstitutional action. FN17

FN17: The Lee case was decided in 1882. At that time there clearly was no remedy available by which he could have obtained compensation for the taking of his land. Whether compensation could be obtained today in such a case is, of course, not the issue here.

I think theLarsonCourt was describing the fairly intricate facts of Lee's case, for which there was no remedy. I don't take that footnote to be saying anything at all about the Takings Clause, in general. I welcome corrections. LeeandLarson are somewhat enigmatic decisions. But the SG's argument is not the best reading of those cases.

The Solicitor General offered a very different reading of First English.

First English thus concluded that the Fifth Amendment is self-executing in that it creates a right to compensation for a taking. But "the fact that the Fifth Amendment creates a 'right to recover just compensation,' does not mean that the United States has waived sovereign immunity such that the right may be enforced by suit for money damages." Pet. App. 13a (quoting First English, 482 U.S. at 315) (citation omitted). To recover money damages against the United States, a plaintiff must identify both a waiver of sovereign immunity and a "substantive right enforceable against the United States for money damages." Mitchell, 463 U.S. at 216 (citations omitted); see Pet. App. 14a. The Tucker Act waives sovereign immunity, but does not create any substantive rights. Mitchell, 463 U.S. at 216. Instead, "[a] substantive right must be found in some other source of law, such as 'the Constitution, or any Act of Congress.' " Ibid. (quoting 28 U.S.C. 1491).

First English makes clear that the Fifth Amendment creates a substantive "right to recover just compensation for property taken by the United States" that may be enforced under the Tucker Act without further congressional action. 482 U.S. at 315 (citation omitted) cf. Mitchell, 463 U.S. at 216 ("Not every claim invoking the Constitution * * * is cognizable under the Tucker Act."). But First English did not involve a suit against the United States, and the Court did not discussmuch less overrulethe century's worth of precedent establishing that the Tucker Act's waiver of sovereign immunity is a necessary precondition to suits seeking just compensation from the United States.

In other words, the Fifth Amendment does not, by itself, get you into federal court to sue.

Let's revisit the discussion from Maine Maine Community Health Options v. United States. that occasioned my original post. Justice Sotomayor wrote in a footnote:

By the dissent's contrary suggestion, not only is a mandatory statutory obligation to pay meaningless, so too is a constitutional one. After all, the Constitution did not "expressly create . . . a right of action,"post,at 3, when it mandated "just compensation" for Government takings of private property for public use, Amdt. 5; see alsoFirst English Evangelical Lutheran Church of Glendalev.County of Los Angeles, 482 U. S. 304, 315316 (1987).Although there is no express cause of action under the Takings Clause, aggrieved owners can sue through the Tucker Act under our case law.E.g., Ruckelshausv.Monsanto Co., 467 U. S. 986, 1016 1017 (1984) (citingUnited Statesv.Causby, 328 U. S. 256, 267 (1946)).

The emphasized sentence purports to resolve the issue that was not resolved in Leeand Larson. This sentence also conflicts with language inFirst English. But it does conform with Justice Scalia's dissent in Webster. How should we treat this sentence? First, this issue was not at all relevant toMaine. It was not briefed. The plaintiffs in that case brought suit under the Tucker Act. They did not assert a claim under the Fifth Amendment. I tend to think the Supreme Court does not resolve important constitutional questions in passing, without any consideration. I am not even sure what "express cause of action" means. The Court here didn't discuss Section 1331 federal question jurisdiction or sovereign immunity. I am loathe to ever label a sentence in a SCOTUS decision as dicta, but this is it. The Court does not quietly resolve longstanding constitutional questions, on which cert petitions were previously denied, in such a slapdash fashion.

Going forward, I think there are two important questions that remain unresolved. First, can plaintiffs bring a takings suit against the federal government under Section 1331, without relying on the Little Tucker Act? That is, can Section 1331's grant of general jurisdiction co-exist with the Little Tucker Act's grant of specific jurisdiction. Second, assuming the federal district court has jurisdiction under Section 1331, is the Takings Clause a "self-executing" waiver of sovereign immunity?

Professor James W. Ely and the Mountain States Legal Foundation submitted an amicus brief in Brott. They framed these two questions precisely:

This Court has repeatedly emphasized the principle that the Just Compensation Clause is self-executing. E.g., First English Evangelical Lutheran Church v. Cnty. of Los Angeles, 482 U.S. 304, 314 (1987); San Diego Gas & Elec. Co. v. City of San Diego, 450 U.S. 621, 654 (1981) (Brennan, J., dissenting); United States v. Clarke, 445 U.S. 253, 257 (1980); Jacobs v. United States, 290 U.S. 13, 15 (1933). Thus, contrary to the judgment below, the district court had jurisdiction over this case under 28 U.S.C. 1331. In fact, a waiver of sovereign immunity for just compensation claims is not only unnecessary, but duplicitous.

The Supreme Court addressed the first question, albeit indirectly in Duke Power Co. v. Carolina Environmental Study Group, Inc. (1978). The question presented was whether "whether Congress may, consistent with the Constitution, impose a limitation on liability for nuclear accidents resulting from the operation of private nuclear power plants licensed by the Federal Government." This case did not squarely present the question of whether the federal courts have jurisdiction to hear Takings Claims under Section 1331. But the Court addressed this issue.

The majority, per Chief Justice Burger, stated that a takings claim can be brought under Section 1331 federal question jurisdiction:

In light of prior decisions, for example,Bivensv.Six Unknown Fed. Narcotics Agents,403 U. S. 388 (1971)andHagansv.Lavine, supra,as well as the general admonition that "where federally protected rights have been invaded . . . courts will be alert to adjust their remedies so as to grant the necessary relief,"Bellv.Hood, supra,at 684, we conclude that appellees' allegations are sufficient to sustain jurisdiction under 1331 (a).

(The citation to Bivensis a bit of a throwback. The better answer is that the text of the Fifth Amendment itself speaks of monetary damages. There is no reason to rely on implied remedies.)

In dissent, then-Justice Rehnquist disagrees. He states that federal district courts lack jurisdiction under Section 1331 for takings claims. They could only rely on the Little Tucker Act, which imposes a jurisdictional limit of $10,000.

The District Court does have jurisdiction to consider claims of taking under the [Little] Tucker Act, 28 U. S. C. 1346 (a) (2) (1976 ed.), where the amount in controversy does not exceed $10,000.

The majority responds to Rehnquist in a footnote:

MR. JUSTICE REHNQUIST suggests that appellees' "taking" claim will not support jurisdiction under 1331 (a), but instead that such a claim can be adjudicated only in the Court of Claims under the Tucker Act, 28 U. S. C. 1491 (1976 ed.). We disagree.

But the Court doesn't actually say that all takings claims can be brought under 1331 jurisdiction. The Court hedges a bit:

Appellees are not seeking compensation for a taking, a claim properly brought in the Court of Claims, but are now requesting a declaratory judgment that since the Price-Anderson Act does not provide advance assurance of adequate compensation in the event of a taking, it is unconstitutional.While the Declaratory Judgment Act does not expand our jurisdiction, it expands the scope of available remedies. Here it allows individuals threatened with a taking to seek a declaration of the constitutionality of the disputed governmental action before potentially uncompensable damages are sustained.

(This point confused me; jurisdiction for a declaratory judgment can be sought under 28 U.S.C. 2201. The Court really doesn't explain the interaction of 1331 and 2201.

Rehnquist raises this point in his dissent:

Nor does the fact that appellees seek only declaratory relief under the Declaratory Judgment Act, 28 U. S. C. 2201 (1976 ed.), support a different result. This Court has held that the well-pleaded complaint rule applied inMottleyis fully applicable in cases seeking only declaratory relief, because the Declaratory Judgment Act merely expands the remedies available in the district courts without expanding their jurisdiction.

In any event, Rehnquist reads the majority's opinion quite broadly:

The Court concludes, ante, at 71 n. 15, although appellees do not so contend, that their taking claim is cognizable under 28 U. S. C. 1331 (a) (1976 ed.), which grants jurisdiction to the district courts where the suit "arises under the Constitution."

Then, Rehnquist draws the natural implication from the majority's opinion:

To conclude that 1331 embraces a "taking" claim makes the Tucker Act largely superfluous, cf. United States v. Testan, 424 U. S. 392, 404 (1976), and will permit the district courts to consider claims of over $10,000 which previously could only be litigated in the Court of Claims. Richardson v. Morris, 409 U. S. 464 (1973). Such a significant expansion of the jurisdiction of the district courts should not be accomplished without the benefit of arguments and briefing.

Rehnquist here presages Scalia's dissent from Webster v. Doe. I read the Duke majority the same way Rehnquist did. Federal Courts can exercise Section 1331 jurisdiction over takings claims, irrespective of the Declaratory Judgment Act wrinkles.

One last point. The Little Tucker Act and Section 1331 can be read harmoniously. The former waives sovereign immunity for a wide range claims against the federal government; for example, disputes over of governmental contracts. There is no express constitutional provision that waives sovereign immunity for contract disputes with the federal government. (The Contracts Clause only applies to states.) The Tucker Act was not needed to waive sovereign immunity for Takings Claim; that waiver was self-executed by the 5th Amendment itself. A dispute over a government contracts would "arise under" federal law for purposes of Section 1331. But there is no waiver of sovereign immunity for that claim, absent the Tucker Act. The Tucker Act no doubt created a convenient and specialized forum to litigate takings cases, but Section 1331 provides the requisite jurisdiction for takings claims.

I'll address this issue further in a future writing.

Update: I corrected the discussion of Lee v. U.S.

See the original post:

Is the Takings Clause a "self-executing" waiver of sovereign immunity? - Reason

A Vermont Judge Had Plans to Slow the Spread of COVID-19 in Prisons. Lawmakers Scrapped Them. – The Appeal

On March 22, a judge in Vermont made an attempt to slow the rapid and potentially lethal spread of COVID-19 in prisons.

In a memorandum to state lawmakers, Chief Superior Judge Brian Grearson proposed an amendment to current resentencing guidelines as part of an emergency bill to adjust court rules during the pandemic.

The measure would allow courts to reduce or otherwise modify prison sentences beyond the usual 90-day timeline, but only if prosecutors and defense attorneys both agreed. The change would offer judges more flexibility to decarcerate during a pandemic that has so far claimed the lives of over 60,000 Americans and more than 200 people in prisons and jails.

But lawmakers scrapped Grearsons proposal. Senator Dick Sears, chair of the Senate Judiciary Committee, suggested that lawmakers would oppose the measure, telling Seven Days, a local news site, I suspect youre going to run into trouble with the governor. You may even run into trouble on the Senate floor. Youll definitely run into trouble in the House. He added that there would be outcry in the public if people who committed certain horrific crimes tried to get their sentences reduced.

Grearsons office did not respond to The Appeals request for comment.

Sears told The Appeal that most resistance to the proposal came from Vermonts top prosecutorsits states attorneyswho were concerned that Grearsons amendment would open a flood gate of people applying [for resentencing], not just during the pandemic, but afterwards.

He said he would discuss Grearsons proposal after the pandemic, when we can have time to fully hear from all sides and fully vet the plan.

Sarah Fair George, states attorney for Chittenden County, home to Burlington, supports the amendment. But she said many prosecutors oppose it out of concern for victims rights.

When we have a sentence structure and we present that sentence structure to a victim, there is an expectation to that victim that thats the closure of a case, she said. There is a concern about telling a victim that a particular sentence is what it is, while also telling them that at any point that might change.

She added that state laws do not limit when or how often a defendant can appeal a conviction, and that the laws current wording leaves interpretative wiggle room for resentencing beyond 90 days.

James Lyall, executive director of the ACLU of Vermont, also supports the amendment and chastised lawmakers reticence to pass the resentencing measure.

We find prosecutors and some policymakers are often opposed to revisiting sentences even if they are extreme and excessive, he said. Even in the context of this crisis, we still have an opposition to revisiting sentencing. I think thats telling.

At the time that lawmakers scrapped Grearsons proposal, the states Department of Corrections had yet to see the pandemic spread within its facilities. It had reported that just one DOC employee, on staff at Northern State Correctional Facility in Newport, had tested positive and self-isolated.

On April 1, the first staff member at Northwest State Correctional Facility in St. Albans tested positive for COVID-19. Days later, a person incarcerated there tested positive for the disease, after which the prison began testing all incarcerated people.

According to James Baker, the DOCs interim commissioner, 38 people incarcerated at Northwest State had tested positive for the novel coronavirus, as well as 17 staff members, as of April 20. As part of a surge plan, 26 people incarcerated at the prison were transferred to medical isolation at Northeast Correctional Complex in St. Johnsbury. Ten incarcerated people were isolated in similar conditions at Northwest State, according to Baker, while two others have been released since their diagnoses.

According to DOC figures, 17 incarcerated people have recovered from COVID-19 as of April 30, and 26 total remain in medical isolation. The DOC reported on May 1 that seven more incarcerated people have tested positive for COVID-19 and have been transferred to the surge facility at Northeast.

The numbers surprised us and how quickly it happened surprised us, but we werent surprised in the planning process to deal with it, Baker said.

He said that, as the pandemic started to spread beyond China in mid-February, the DOC began screening incarcerated people for visible COVID-19 symptoms during the intake process. Since the outbreak in its own facilities, the DOC has rented out the Comfort Inn in St. Johnsbury for people working at the prison. People incarcerated in Vermonts prisons have also manufactured protective gowns and masks to shore up the DOCs reserves of personal protective equipment.

According to Baker, the DOC has limited means to release incarcerated people who are particularly vulnerable to the virus. He said the states medical furlough statutes are pretty tight. They typically apply exclusively to incarcerated people who require temporary release for a specific medical treatment, according to George, the Chittenden County states attorney. Baker also noted that the DOC does not have the authority to release pretrial detainees.

But George said she has still had to pressure the DOC to release people within six months of their minimum sentence, at which point they are eligible for furlough or parole. It didnt seem worth keeping these individuals [in prison] for another six months, given the circumstances, she said.

While Baker believes the success of the states depopulation efforts still hinges on the behavior of those who are released, he said the pandemic has changed his approach at the DOC.

I do think that it has caused us inside corrections to rethink the way we review cases, he said.

Since the outbreak, the DOC has reviewed more cases for release per week to accelerate depopulation measures, according to Baker, which helped decrease Vermonts incarcerated population from 1,671 in late February to 1,372 by late April.

I can say with certainty that the Vermont Department of Corrections, more than anyone in the system, has done more to reduce that prison population, he said.

But Lyall believes there is more to be done and that needs to be done urgently. He called on Governor Phil Scott to use his executive authority to release people, and urged the DOC to exhibit greater leniency when reviewing cases for release. He urged the DOC to expedite the release of those incarcerated for technical violations or nonviolent crimes, and of people nearing their minimum sentence.

Although lawmakers scrapped Grearsons proposed resentencing measures, advocates and some state officialsincluding Judge Grearsoncontinue to chart new paths to decarceration. Most recently, in his capacity as the head of Vermonts Superior Court system, Grearson has consolidated and assigned approximately 50 motions for emergency release to Judge John Treadwell. They concern a mix of people in pretrial, pre-sentencing, and post-sentencing stages of the criminal-legal process.

Paul Volk, a defense attorney, filed an amicus memo for the consolidated cases on behalf of the National Association of Criminal Defense Lawyers and the ACLU of Vermont. He argued that the heightened risk of COVID-19 infection while incarcerated represents a form of cruel and unusual punishment, violating the Eighth Amendment. For pretrial detainees, Volk said, incarceration during the pandemic also violates the Fifth Amendment right to due process.

Treadwell started hearing the cases on April 21 but has yet to release a judgment on whether the state is violating prisoners constitutional rights. That decision would potentially impact hundreds of incarcerated people in Vermont.

Its time for the legal system to actually act outside of the box, said Volk.

Read more from the original source:

A Vermont Judge Had Plans to Slow the Spread of COVID-19 in Prisons. Lawmakers Scrapped Them. - The Appeal

ReOpen NC official reports testing positive for coronavirus | TheHill – The Hill

Aleading member of ReOpen NC, which advocates for lifting North Carolina restrictions intended to help contain the coronavirus, posted Sunday in the organizations Facebook group that she had tested positive for COVID-19.

Audrey Whitlock, one of the administrators of ReOpen NCs Facebook group, said her 14-day quarantine ended Sunday, calling herself an asymptomatic COVID19 positive patient, according to posts published byRaleigh station CBS 17.

As an asymptomatic COVID19 positive patient (quarantine ends 4/26) another concern I have is the treatment of COVID patients as it relates to other communicable diseases, Whitlock said in the post. I have been forced to quarantine in my home for 2 weeks.

She added that Gov. Roy Coopers (D) stay-at-home orderviolatesher First Amendment, Fifth Amendment and 14th Amendment rights.

I have been told not to participate in public or private accommodations as requested by the government, and therefore denied by 1st amendment right of freedom of religion, she wrote.

The ReOpen NC leader requested a refund of all taxes she has paid during the shutdown because she says lawmakers are not abiding by the Constitution.

ReOpen NC has held two protests in Raleigh against Coopers stay-at-home order and plans to hold demonstrations every Tuesday the order is still in effect. Whitlock posted that she would be at Tuesdays protest.

The North Carolina governor originally announced a stay-at-home order starting March 27. Last week, he extended the orderuntil May 8.

The state has confirmed 9,142 cases of the coronavirus, leading to 306 deaths, according to the North Carolina Department of Health and Human Services.

Read more here:

ReOpen NC official reports testing positive for coronavirus | TheHill - The Hill

Mixed immigration status families sue federal government for stimulus check – The Texas Tribune

A national civil rights advocacy group is suing the Trump administration on behalf of U.S. citizens denied government stimulus payments because they are married to undocumented immigrants.

The Mexican American Legal Defense and Educational Fund, is alleging that a provision in the $2.2 trillion stimulus package known as the CARES Act that denies the benefit to mixed-status families in unconstitutional.

The benefits have been denied for married couples who jointly filed previous tax returns with one person using an Individual Taxpayer Identification Number. The number is often used by undocumented immigrants who dont have legal authorization to work in the country.

The lawsuit argues that the CARES Act discriminates against mixed-status couples because it treats them differently than other married couples, in violation of the U.S. Constitutions Fifth Amendment guarantees of equal protection and due process according a statement from MALDEF.

The lawsuit also alleges that by denying the benefit, the federal government is humiliating "Plaintiffs and the children of mixed-status couples by treating them adversely as compared to other families."

There are six plaintiffs in the case, including Christina Segundo Hernandez, a Fort Worth resident who has four American citizen children and is married to an undocumented immigrant. Her case was first highlighted by The Dallas Morning News.

About 2.7 million Texans are U.S. citizens and have at least one undocumented family member, according to the Center for American Progress. The lawsuit names as plaintiffs U.S. Secretary of the Treasury Steve Mnuchin and U.S. Commissioner of Internal Revenue Charles Rettig.

See the original post here:

Mixed immigration status families sue federal government for stimulus check - The Texas Tribune

Podcast: Some perspective on Bashaud Breeland’s arrest – Sports Illustrated

On this weeks episode of Its Always Sunny In Chiefs Kingdom, Austin and Taylor discuss their personal experiences with law enforcement - but when Austin asks Taylor to incriminate himself, Taylor asserts his Fifth Amendment right not to incriminate himself. He pleads the Fifth.

...Which is exactly what Kansas City Chiefs cornerback Bashaud Breeland should have done on Tuesday afternoon.

To open the episode in a new tab, or if the embedded player isn't working, click here.

That's what Breeland should have done, instead of attempting to leave the scene, physically resisting arrest by an officer, fleeing from the officer, attempting to blame everything on others present, despite the fact that 3.2 grams of marijuana was found in the drivers side door, and despite the fact that he then gave the police permission to look through his phone, where they found many references to marijuana transactions, leading Breeland to admit that he likes smoking marijuana and is a marijuana enthusiast.

Breeland then went for dumb defendant B-I-N-G-O by going on social media and tweeting about his case, before finally lawyering up and deleting the tweets.

I had spent most of Wednesday morning proclaiming that Breelands criminal charges were not a big deal which, objectively, they are not: they are all misdemeanor charges, hes hired an outstanding lawyer, and the odds of him doing any kind of significant jail time or even getting a conviction on his record are close to nil. Unfortunately, we found out later that same day that he had previously failed an NFL drug test. That gave a good opportunity to talk about the Chiefs draft class, which includes cornerbacks L'Jarius Sneed and Thakarius "BoPete" Keyes.

We also discussed longtime punter Dustin Colquitts somewhat-surprising release after 15 years with the Chiefs and continued our series of recaps of the 2019 season with Packers at Chiefs the one where Pat Mahomes didnt play and we lost. Fun times!

Follow us on Twitter at @RealBirdLawyer and @Taylor_Witt; rate, review, and subscribe to the podcast wherever you listen from; and join us next week for a mailbag and a breakdown of Matt Moores thrilling win over the Vikings. Plus, the greatest backup performances in Chiefs history!

Read more here:

Podcast: Some perspective on Bashaud Breeland's arrest - Sports Illustrated

Shelter-in-Place Orders Are Perfectly Legal – The New York Times

While most Americans are staying home to stem the spread of the coronavirus, some companies and politicians have been busy mounting legal challenges to the variety of shelter-in-place orders imposed throughout the country. Attorney General William P. Barr threatened to support the plaintiffs and told federal prosecutors on Monday to be on the lookout for unconstitutional restrictions.

The lawsuits claim, in part, that state and local governments have deprived the plaintiffs of economic and property rights protected by the Constitution. More suits may follow, and if they are successful, state and local governments could be forced to pay millions, or even billions, of dollars in damages. Fortunately, the governments have a compelling defense.

Under the so-called Takings Clause of the Fifth Amendment, the government cannot take private property for public use without just compensation. The Supreme Court has interpreted this clause to bar not only physical appropriation of property but also what it has termed regulatory takings, where government action deprives owners of their propertys full economic value.

The litigants from a candidate for local office in Pennsylvania to tree specialists in Michigan to a gondola service in California claim that the stay-at-home orders do just that, and so the governments must pay up.

Supreme Court precedent, however, comes down on the side of the governments. In 2002, a majority of the court decided in Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency (which John Roberts had argued on behalf of Lake Tahoe) that temporary restrictions, like the 32-month moratorium on development on Lake Tahoe involved in the case, did not in and of themselves constitute regulatory takings.

While temporary restrictions might rise to the level of regulatory takings, courts would have to examine a number of factors particular to each case to figure it out. When the Pennsylvania Supreme Court rejected a challenge to the state closure order recently, the only such case decided so far, it relied on this distinction between temporary and permanent governmental action.

In the past, emergencies have often called for states to impose short-term economic restrictions, and the Supreme Court has affirmed their constitutionality, emphasizing that temporary steps that might otherwise infringe on economic rights may be permissible.

During the Great Depression, the court considered whether a Minnesota law extending the time for borrowers to pay back mortgages violated the Contracts Clause. The court held that it did not, given the economic emergency. A decision issued immediately after World War II applied the same principle, affirming the power of the New York Legislature to continue a similar mortgage moratorium.

These cases, put together, should reassure state and local officials that they can protect the public health today and engage in the difficult process of social and economic reconstruction that well need after the pandemic. Whether that requires giving tenants more time to come up with rent payments before they are evicted or other steps temporarily postponing property owners remedies, these kinds of measures should be considered constitutional.

Bernadette Meyler is a professor at Stanford Law School.

The Times is committed to publishing a diversity of letters to the editor. Wed like to hear what you think about this or any of our articles. Here are some tips. And heres our email: letters@nytimes.com.

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Go here to see the original:

Shelter-in-Place Orders Are Perfectly Legal - The New York Times

Is there an express cause of action under the Takings Clause? – Reason

Today the Supreme Court decided Maine Community Health Options v. United States. This 8-1 decision held that the ACA's "Risk Corridors" provision created an obligation to pay insurers for their losses, even if Congress subsequently repealed the appropriation. I have only followed this ACA issue from a distance. It does not implicate any of the core constitutional issues I've written about in twoand soon, threebooks.

The case turned on some of the nuances of the Tucker Act. Justice Sotomayor's majority opinion explains this important statute:

The United States is immune from suit unless it unequivocally consents. United States v. Navajo Nation, 556 U. S. 287, 289 (2009). The Government has waived immunity for certain damages suits in the Court of Federal Claims through the Tucker Act, 24 Stat. 505. See United States v. Mitchell, 463 U. S. 206, 212 (1983). That statute permits"claim[s] against the United States founded either upon theConstitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort." 28 U. S. C. 1491(a)(1).

In this case, the Plaintiffs brought suit in the Court of Federal Claims, pursuant to the Tucker Act. But is it possible to sue the federal government for an unconstitutional taking, without relying on the Tucker Act? That is, does the Takings Clause itself create an express cause of action.

In Footnote 12, the majority said it does not:

By the dissent's contrary suggestion, not only is a mandatory statutory obligation to pay meaningless, so too is a constitutional one. After all, the Constitution did not "expressly create . . . a right of action," post, at 3, when it mandated "just compensation" for Government takings of private property for public use, Amdt. 5; see also First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U. S. 304, 315316 (1987). Although there is no express cause of action under the Takings Clause, aggrieved owners can sue through the Tucker Act under our case law. E.g., Ruckelshaus v. Monsanto Co., 467 U. S. 986, 1016 1017 (1984) (citing United States v. Causby, 328 U. S. 256, 267 (1946)).

Two observations. First, Justice Alito's dissent (p. 3) did not say "the Constitution did not 'expressly create . . . a right of action.'" The majority mischaracterized the dissent. Justice Alito said nothing about the Constitution. He was talking about federal law. He wrote:

The Tucker Act, 28 U. S. C. 1491, under which petitioners brought suit, provides a waiver of sovereign immunity and a grant of federal-court jurisdiction, but it does not create any right of action. See, e.g., United States v. Navajo Nation, 556 U. S. 287, 290 (2009). Nor does any other federal statute expressly create such a right of action.

This error should be corrected before the opinion is formally published.

Second, the citation toMonsanto isn't directly on point. Here is the relevant passage from the 1984 decision:

Equitable relief is not available to enjoin an alleged taking of private property for a public use, duly authorized by law, when a suit for compensation can be brought against the sovereign subsequent to the taking. Larson v. Domestic & Foreign Commerce Corp. (1949). The Fifth Amendment does not require that compensation precede the taking. Hurley v. Kincaid (1932). Generally, an individual claiming that the United States has taken his property can seek just compensation under the Tucker Act, 28 U. S. C. 1491. United States v. Causby (1946) ("If there is a taking, the claim is `founded upon the Constitution' and within the jurisdiction of the Court of Claims to hear and determine"); Yearsley v. Ross Construction Co. (1940).

Monsanto did not hold that "there is no express cause of action under the Takings Clause." That issue was not decided. Did Justice Sotomayor's footnote reach an unresolved constitutional ruling? I am not enough of an expert on the Tucker Act to opine. But based on my reading, the Court extended the ruling from Monsanto. And it did so without any analysis. Moreover, this ruling was not necessary to the Court's holding: the plaintiffs did rely on the Tucker Act. And Justice Alito didn't say anything about the Constitution? I suspect the Justices may have buried a "time bomb" here.

Let's put aside the footnote for a moment. Is the Court correct as a matter of first principles? What would have happened if the Congress never enacted the Tucker Act in 1887? Could the federal government take property without paying "just compensation"? People could still petition Congress for "just compensation." Indeed, that history probably explains why the Court of Claims was created in 1855 as an Article I court.

Imagine if Congress repealed the Tucker Act. Would people be forced to go back to Congress? Or would the federal courts find that the Takings Clause, standing by itself, creates an express cause of action for damages? Let me state the question differently. Is it possible to sue the federal governments for "just compensation" without relying on the Tucker Act's jurisdiction?

This question has some bearing on my writings about the bump stock litigation. See Parts I, II, III, and IV. Today, the government filed its new motion to dismiss in that case. Here is a relevant excerpt:

This Court does not "need to assess whether the final rule is a correct interpretation of [18 U.S.C. 922(o)] in deciding whether there was a compensable taking." Mem. Op. at 13. Plaintiff does not challenge the Rule itself, but instead, has pleaded a claim for compensation under the Little Tucker Act. See Compl. 48. This approach is consistent with precedent under the Tucker Act mandating that, "for the Court to possess jurisdiction over a takings claim, the 'claimant must concede the validity of the government action which is the basis of the taking claim.'" Jackson v. U.S., 143 Fed. Cl. 242, 247 (Fed. Cl. 2019) (quoting Tabb Lakes v. U.S., 10 F.3d 796, 802 (Fed. Cir. 1993)). Because "the grant of jurisdiction" in the Tucker Act "is practically identical to that" of the Little Tucker Act, Kipperman v. McCone, 422 F. Supp. 860, 868 (N.D. Cal. 1976), this Court should conclude that the validity of the Rule is not placed at issue in Plaintiff's takings claim

But what if the the claimant does not "concede the validity of the government action," and for that reason seeks compensation? That is, the Plaintiff alleges that he is due compensation precisely because the government lacked the enumerated power to seize and destroy his property. In other words, the executive branch did not have the requisite constitutional authority to seize the devices in the first place.

The long-awaited fifth installment is still in the works. It will address the following question: can a plaintiff seek compensation for an unconstitutional taking, without relying on the Tucker Act's jurisdictionif not under the Takings Clause, perhaps under some theory of tort.

Excerpt from:

Is there an express cause of action under the Takings Clause? - Reason