Wednesday, September 17, 2014

Corporate Lawyers Breaking Bad | centerjd.org

Corporate Lawyers Breaking Bad | centerjd.org:

"By Joanne Doroshow, Center for Justice and Democracy at New York Law School

 I cannot wait for the new Breaking Badspin-off, Better Call Saul, about the always entertaining lawyer, Saul Goodman. For those unfamiliar with Breaking Bad, Saul's a criminal lawyer. No, literally, a CRIMINAL lawyer. Saul already has a new fake website complete with a banner ad, "Welcome Lawbreakers!" It's a joke, of course, not to mention fiction. And yet, I think Saul would find himself right at home in the legal departments of some of today's mega-corporations, at least based on what we've been seeing in court lately. And that's no joke.

 Last week, an extraordinary decision was issued by the federal Third Circuit Court of Appeals in an asbestos case, which really should rock the corporate defense bar. In the case, Kimberlee Williams, et al. v. BASF Catalysts LLC, et al., asbestos victims provided evidence to the court that "that BASF and ['the New York law firm that defended it for years in asbestos cases, Cahill Gordon & Reindel LLP'] systematically collected and destroyed or hid evidence of asbestos-contaminated products produced by a BASF predecessor, Engelhard, in order to evade liability and forge quick settlements." See more here. It was enough evidence to revive a fraud case against BASF and its law firm for "lying about the toxic material, then depriving those injured by it of their day in court."



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ThePopTort: Punitives Damages Get a Boost

ThePopTort: Punitives Damages Get a Boost:

by Center for Justice & Democracy

Punitive damages can be a tough sell. Juries award these kinds of damages to hold reckless companies and others accountable for outrageous misconduct. Yet (or so), they are easy rhetorical targets. “Huge” “arbitrary” and “costly to society" are how Big Business groups like to describe punitive damages. But do the facts tell a different story? Actually, they tell a very different story.
Punitive damages are rarely awarded and are modest in amount: awarded in only about 3 percent of successful tort cases.  And the median punitive award to tort plaintiff winners isn’t in the millions – it’s only about $55,000.  (See more here.) What’s more, appellate judges are cutting them back left and right. Just this week, the 7th Circuit severely reduced a jury award against ConAgra Foods, saying it “does not have to pay nearly $100 million in punitive damages stemming from the explosion at an Illinois grain bin that severely burned three workers.” 
Even in the case against BP for causing the 2010 Deepwater Horizon explosion and oil spill in the Gulf, while the court just found BP to be reckless and grossly negligent, he said, “based on previous rulings in the U.S. Fifth Circuit Court of Appeals, which includes Louisiana, BP cannot be held liable for punitive damages under maritime law.”  He also noted, however, that  “in other circuit courts, BP could be held liable for punitive damages, in addition to compensation for losses.”  (Here we go, U.S. Supreme Court!)
But like a phoenix rising from the ashes comes the Missouri Supreme Court, with a wonderful, unanimous decision this week striking down that state’s $500,000 punitive damages cap as it applies to any common law claim. 
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Oregon Supreme Court Applies Aggregate Settlement Rule in Clerg Sex Abuse Case // Mass Tort Litigation Blog

Mass Tort Litigation Blog:

by Elizabeth Chamblee Burch

On August 21, 2014, the Oregon Supreme Court embraced the ALI's definition of a non-class aggregate settlement and held that an attorney who represented victims of clergy abuse failed to get the clients' informed consent before distributing a lump-sum settlement.  In In re Complaint as to the Conduct of Daniel J. Gatti, the court noted that Gatti failed to get clients' informed consent in writing to the formula or method he devised to divvy up the defendants' lump-sum settlement payments, which violated Rule 1.8(g).  As a result, the court imposed a 90-day suspension as a sanction.
For more on the problems associated with lump-sum settlements, see Howie's article, The Trouble with All-or-Nothing Settlements.


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Tuesday, September 16, 2014

How Stephen King Teaches Writing // The Atlantc


Stephen King believes in diagramming sentences and Strunk & White's Elements of style.  Jessica Fahey interviews him in The Atlantic. - gwc
How Stephen King Teaches Writing - The Atlantic:
by Jessica Fahey

Stephen King’s On Writing: A Memoir of the Craft has been a fixture in my English classroom for years, but it wasn’t until this summer, when I began teaching in a residential drug and alcohol rehab, that I discovered the full measure of its worth. For weeks, I struggled to engage my detoxing, frustrated, and reluctant teenage students. I trotted out all my best lessons and performed all my best tricks, but save for one rousing read-aloud of Poe’s “A Tell-Tale Heart,” I failed to engage their attention or imagination.
Until the day I handed out copies of On Writing. Stephen King’s memoir of the craft is more than an inventory of the writer’s toolbox or a voyeuristic peek into his prolific and successful writing life. King recounts his years as a high school English teacher, his own recovery from drug and alcohol addiction, and his love for his students (“even the Beavis and Butt-Head types”). Most importantly, he captivates the reader with his honest account of the challenges he’s faced, and promises redemption to anyone willing to come to the blank page with a sense of purpose.
I asked King to expound on the parts of On Writing I love most: the nuts and bolts of teaching, the geekiest details of grammar, and his ideas about how to encourage a love of language in all of our students.
For the interview click the headline above

Monday, September 15, 2014

Cleaning China's Smoggy Skies: China Released Draft Air Pollution Law Amendments for Public Comment | Barbara Finamore's Blog | Switchboard, from NRDC



Last spring China amended its environmental protection law.  Now they have released for comment a climate protection law amendment. - gwc

Cleaning China's Smoggy Skies: China Released Draft Air Pollution Law Amendments for Public Comment | Barbara Finamore's Blog | Switchboard, from NRDC: "Though a burst of clear skies on Monday allowed Beijingers to marvel at a magnificent Mid-Autumn Festival moon, a blanket of smog choked the capital the next morning, reminding citizens of China’s grave air pollution woes. However, that same Tuesday, September 9th, the Legislative Affairs Office of China’s State Council released the first draft of the highly-anticipated revisions to the national Air Pollution Prevention and Control Law (hereinafter referred to as the Air Pollution Law), providing hope that blue skies won’t always be so fleeting.

 The State Council’s Legislative Affairs Office, which generates and reviews drafts of national laws and regulations, will be accepting comments on revisions of the law between September 9th and October 8, 2014. Releasing the draft law for public comment at such an early stage of the process is a big step forward for governmental transparency and public participation. The Chinese government does not usually seek public comments on laws until they are submitted to the National People’s Congress (NPC), at which point it becomes more difficult for the public to influence legislation."



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Here’s what Shakespeare’s plays sounded like with their original English accent | 22 Words

Here’s what Shakespeare’s plays sounded like with their original English accent | 22 Words: "In this short documentary, linguist David Crystal and his son, actor Ben Crystal, look at the differences between English pronunciation now and how it was spoken 400 years ago. They answer the most basic question you probably have right now — How do you know what it sounded like back then? — and they discuss the value of performing Shakespeare’s plays in the original accent…"

<iframe width="854" height="510" src="//www.youtube.com/embed/gPlpphT7n9s" frameborder="0" allowfullscreen></iframe>



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Friday, September 12, 2014

NFL Estimates 1 in 3 will develop cognitive problems. NY Times

This is the most shocking statement about workplace safety I have ever heard.  If football cannot be made safe it must be banned.  And I doubt it can be made safe. = GWC
N.F.L. Agrees: Brain Trauma in 1 in 3 Players - NYTimes.com:
The National Football League, which for years disputed evidence that its players had a high rate of severe brain damage, has stated in federal court documents that it expects nearly a third of retired players to develop long-term cognitive problems and that the conditions are likely to emerge at “notably younger ages” than in the general population.
The findings are a result of data prepared by actuaries hired by the league and provided to the United States District Court judge presiding over the settlement between the N.F.L. and 5,000 former players who sued the league, alleging that it had hidden the dangers of concussions from them.
“Thus, our assumptions result in prevalence rates by age group that are materially higher than those expected in the general population,” said the report, prepared by the Segal Group for the N.F.L. “Furthermore, the model forecasts that players will develop these diagnoses at notably younger ages than the generation population.”

Thursday, September 11, 2014

Washington High Court Holds Legislature in Contempt in School Funding Case - Law Blog - WSJ

Washington State Supreme Court
Washington High Court Holds Legislature in Contempt in School Funding Case - Law Blog - WSJ:

by Jacob Gershman

 "Washington’s highest court on September 11, 2014 in McCleary v. State of Washington took the rare step of holding the state’s Legislature in contempt for failing to come up with a plan to put billions of dollars into the state’s public education system as required by a 2012 ruling. In January 2014 the Court ordered the state to submit by April 30 a "complete plan for fully implementing its program of basic education for each year between now and the 2017-2018 school year".  The State failed.  In June 2014 the Court ordered the State to show cause why it should not be held in contempt.

The move was the latest chapter in a landmark case brought by teachers’ unions and parents who alleged in a 2007 lawsuit that the state was shortchanging public schools in violation of state constitutional standards.

The state “has known for decades that its funding of public education is constitutionally inadequate,” the unanimous court wrote in its opinion. “This proceeding is therefore the culmination of a long series of events, not merely the result of a single violation.”

The judges in Washington are the latest judicial body to get in the middle of a polarized state education policy fight. The ruling follows a California court decision from June declaring the state’s strong teacher-tenure laws unconstitutional. In that case the plaintiffs were students, and the issue in dispute wasn’t money but rules protecting teachers that critics said were dragging down the quality of education."



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Monday, September 8, 2014

G.M.’s Board Is Seen as Slow in Reacting to Safety Crisis - NYTimes.com


The "Valukas Report" by the law firm Jenner & Block into GM's response to the ignition key defect continues to produce insights into how corporate responsibility took the form of self-protection and self delusion.  - gwc
G.M.’s Board Is Seen as Slow in Reacting to Safety Crisis - NYTimes.com:

by Bill Vlasic

DETROIT — After General Motors emerged from bankruptcy and a government bailout five years ago, the board of directors of the “new G.M.” was expected to keep a more watchful eye on a company that had gone seriously off track.

But on the issue of vehicle safety, the board until recently took a mostly hands-off approach, rarely even discussing the topic beyond periodic reviews of product quality with company executives, according to interviews with current and former board members, as well as G.M. officials with knowledge of the board’s actions.

In February, the initial recall of hundreds of thousands of cars with defective ignition switches was treated in such a routine manner at the board’s monthly meeting that the board’s chairman, Theodore M. Solso, said he had only a vague recollection of the details.

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Saturday, September 6, 2014

Republicans after white supremacy | GOPLifer

Republicans after white supremacy | GOPLifer:
by Chris Ladd
A strategy aimed at consolidating national power by appealing to the racial fears of Southern whites has reached the end of its effectiveness. That does not mean we will stop using it.

It is entirely possible that a perverse new version of the Republican Party, the mirror image of its anti-slavery, Hamiltonian heritage may control its brand going forward. Political outcomes over the next four years may determine whether the Republican Party regains its national footing or retreats into a strategy of regional resistance with dangerous consequences for the country.

A strategy aimed at consolidating national power by appealing to the racial fears of Southern whites has reached the end of its effectiveness. That does not mean we will stop using it.

It is entirely possible that a perverse new version of the Republican Party, the mirror image of its anti-slavery, Hamiltonian heritage may control its brand going forward. Political outcomes over the next four years may determine whether the Republican Party regains its national footing or retreats into a strategy of regional resistance with dangerous consequences for the country.


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