Wednesday, May 20, 2015

Unjust Liability Cap in Amtrak Case //John Culhane //Slate

Liability damages caps are mandates that the injured make an involuntary donation to the tortfeasor - that old-fashioned but expressive noun.  The Amtrak cap was justified on the ground that Amtrak was federally funded.  Still is - under-funded. - gwc
Amtrak derailment lawsuits: Federal law limits damages to $200 million. Slate
by John Culhane // Widener Law School

The news from last week’s horrific Amtrak derailment has followed a predictable course, from focus on the deaths and injuries to a search for an explanation and then for accountability. For currently inexplicable reasons, the train accelerated at precisely the wrong time: as it approached a dangerous curve. And since Amtrak hadn’t gotten around to installing a system called Positive Train Control, which could have stopped the train automatically, the engine jumped off the tracks at the curve, and passenger cars flipped over or were crushed.
As soon as the issue of blame surfaced and then, inevitably, possible lawsuits, so did this fact: Because of a damages-limiting federal law enacted in 1997, the victims and their survivors are unlikely to be fully compensated for injury or death. The law limits recovery to a total of $200 million per accident; that’s probably not enough in the case of a mass disaster like this one, in which a single victim’s claim could reach $20 million. Eight people were killed in the Philadelphia accident, and scores were seriously injured. Twenty remain hospitalized, with five in critical condition. Perhaps this tragedy will spark a reform or repeal of this ill-advised law, but I wouldn’t count on it. An even worse train accident that killed 25 people seven years ago in California didn’t lead to remedial action by Congress. All that’s come out of that legislative body since this latest disaster has been a tone-deaf committee vote in the House of Representatives the very next day to slash Amtrak’s paltry funding even more.
Why is there a $200 million limit in the first place? As usual with Amtrak, the reason can be traced to congressional reluctance to fund the program at sustainable levels. At the time the 1997 law was passed, the federally subsidized company was facing bankruptcy and needed bailout funds. The reluctant lawmakers ponied up the dough needed to keep the wheels turning, but they inserted the liability-limitation provision into the Amtrak Reform and Accountability ActThe effect was to shift fiscal responsibility from the taxpayers as a whole to the injured parties by reducing the monetary sum they’d otherwise be eligible to recover in damages through the tort system. And the amount has never been increased to reflect inflation.

Gavel Grab » Kansas Legislation Denounced As ‘Blackmail’ and ‘Power Grab’

Gavel Grab » Kansas Legislation Denounced As ‘Blackmail’ and ‘Power Grab’

by Emily Carter

Controversy over strings attached to the Kansas judicial budget is attracting coverage across the state and nation. Under new legislation, the entire state court operating budget for 2016 and 2017 would be cut if the state Supreme Court rules recent administrative changes unconstitutional.

The Wall Street Journal says that legal experts believe “the legislation may be the first to peg the Third Branch’s budget to the outcome of an individual case, and public-interest groups described it as the most pointed challenge to judicial independence in recent memory.” An editorial in the Lawrence Journal-World describes the legislation as “blackmail” and a “power grab,” whereby “lawmakers are trying to alter the roles, responsibilities and fundamental balance of power among the state’s three branches of government.”

“If legislators and the governor think the Kansas Constitution is wrong,” the editorial reads, “they should tackle that issue head-on and seek to change it — not use budget blackmail to try to force the state’s independent judiciary to change its mind.” An op-ed in the Kansas City Star agrees, arguing that the bill is about control, not about decentralizing power as proponents assert.

Watch Gavel Grab as this story develops.

- See more here

Study Links Record Dolphin Die-Off In The Gulf Of Mexico To Deepwater Horizon Spill | ThinkProgress

Dolphins are seen swimming through the oil spilling from the Deepwater Horizon oil well at the height of the spill

Study Links Record Dolphin Die-Off In The Gulf Of Mexico To Deepwater Horizon Spill | ThinkProgress

by Katie Valentine

"Exposure to oil and dispersants from the 2010 Deepwater Horizon oil spill caused bottlenose dolphins in the Gulf of Mexico to develop lesions and die, according to a new study.
The study, published Wednesday in PLOS One, looked at that the unusually high number of dolphins that died off the coast of Louisiana, Alabama, and Mississippi between June 2010 and December 2012. The researchers compared the 46 dead dolphins they looked at to 106 dolphin carcasses they found outside either outside of the “unusual mortality event” region — dolphins found in places such as South Carolina, Texas, and North Carolina — or found before the Deepwater Horizon spill. The disaster, which killed 11 men and sent millions of gallons of oil into the Gulf of Mexico, occurred in April 2010.
The study found that the dolphins associated with the unusual mortality event — which, according to the National Oceanic and Atmospheric Administration, is the highest bottlenose dolphin die-off in the Gulf of Mexico, and is ongoing — were more likely to have certain forms of pneumonia and adrenal problems than other dolphins, and that these problems were consistent with exposure to oil and dispersants. The dead dolphins that had been affected by the spill were found with lung, liver, and adrenal lesions.
“These dolphins had some of the most severe lung lesions I’ve ever seen,” Kathleen Colegrove, one of the study’s authors and associate professor at the University of Illinois, said during a press call "

'via Blog this'

Tuesday, May 19, 2015

78 settlements Approved as WTC Cleanup Litigation Winds Down

OTHERWISE: 78 settlements Approved as WTC Cleanup Litigation Winds Down

Mass Compensation After September 11 // Adam Zimmerman

PrawfsBlawg: Mass Compensation After September 11

by Adam Zimmerman (Loyola Law School - Los Angeles)

[I]n the last few weeks, we've crossed two small milestones for thousands of recovery workers who claim they suffered toxic injuries at Ground Zero.  The first was announced by Sheila Birnbaum, the administrator of the new September 11 Victim Compensation Fund, which Congress reopened to pay claims brought by first responders.  After three years overseeing the Fund, Birnbaum announced that she had resolved $1 billion dollars worth of claims for over 4,400 first responders.  
The second appeared in an order by Federal District Judge Hellerstein, who has overseen almost all the September 11-related lawsuits since 2002.  After more than a decade of litigation, Judge Hellerstein's order noted the parties were in the "final stage" of settling recovery workers' claims in federal district court.  In re World Trade Center Disaster Cite Litigation, 2015 WL 1262283 (S.D.N.Y. Mar 15, 2015).  Judge Hellerstein’s opinion was just a small order among many. But it was related to a global $810 million settlement for recovery workers, brokered with the assistance of two other special masters (and established Tort scholars) James Henderson and Aaron Twersky. 
As I suggest below, each settlement effort raises interesting questions about the best way to gather highly contested scientific evidence in a massive dispute.  Public compensation schemes like the new September 11 Victim Compensation Fund can rely on innovative and experimental administrative law tools--like New York's unprecedented 71,000 member "health registry"--to collect massive amounts of new health information and flexibly adjust the way they compensate people over time. Settlements in court aren't as flexible, but aggregate litigation has other advantages.  Technological innovations in complex litigation--like Judge Hellerstein's comprehensive, searchable electronic database of 10,000 WTC claims discussed below--can sometimes allow decisionmakers to see patterns and trade-offs that an administrative agency won't when it decides each case, one at a time.

Monday, May 11, 2015

The Real Problem With America’s Inner Cities -

The Real Problem With America’s Inner Cities -

by Orlando Patterson // Harvard University

CAMBRIDGE, Mass. — THE recent unrest in Baltimore raises complex and confounding questions, and in response many people have attempted to define the problem solely in terms of insurgent American racism and violent police behavior.
But that is a gross oversimplification. America is not reverting to earlier racist patterns, and calling for a national conversation on race is a cliché that evades the real problem we now face: on one hand, a vicious tangle of concentrated poverty, disconnected youth and a culture of violence among a small but destructive minority in the inner cities; and, on the other hand, of out-of-control law-enforcement practices abetted by a police culture that prioritizes racial profiling and violent constraint.
First, we need a more realistic understanding of America’s inner cities. They are socially and culturally heterogeneous, and a great majority of residents are law-abiding, God-fearing and often socially conservative.

According to recent surveys, between 20 and 25 percent of their permanent residents are middle class; roughly 60 percent are solidly working class or working poor who labor incredibly hard, advocate fundamental American values and aspire to the American dream for their children. Their youth share their parents’ values, expend considerable social energy avoiding the violence around them and consume far fewer drugs than their white working- and middle-class counterparts, despite their disproportionate arrest and incarceration rates.

Friday, May 8, 2015

Court: The next step for Central American minors living illegally in the US | National Catholic Reporter

Court: The next step for Central American minors living illegally in the US | National Catholic Reporter

If Joel gets sent back to El Salvador, he knows he'll be killed.
The 11-year-old refused to pay off gang members collecting money outside his school and received beatings for his lack of cooperation. After his uncle tried to defend him, the violence only got worse. Joel's mother, who came to the United States when Joel was 2, decided her son should risk the trip north. For now, he is safe, living with his mother, stepfather and three siblings. But Joel's future is uncertain.
Joel, who asked that his last name not be used, was one of 16,404 unaccompanied minors from El Salvador apprehended by the U.S. Border Patrol in 2014. He was part of what has become known as "the surge" in border crossings by young people from Central America in recent years. In 2011, 1,394 children attempted the journey from El Salvador. In 2013, that number had grown to nearly 6,000 before almost tripling for the next year. A similar pattern is true for Guatemala and Honduras. Across all three Central American countries in 2014, 51,705 children were caught crossing the border alone.

Missouri Governor Signs Med mal Caps bill //TortsProf Blog

TortsProf Blog

Missouri Governor Jay Nixon signed the med mal caps bill passed by the legislature (earlier coverage here):
The limits apply only to noneconomic damages, not medical costs or lost wages.
Most noneconomic damages would be capped at $400,000. For catastrophic cases, including paralysis or brain injury, the cap would be $700,000.
The bill also doubles the limit in wrongful death cases to $700,000. has details.

Thursday, May 7, 2015

Justice Stevens: U.S. Should Compensate Guantanamo Prisoners Unjustly Held

OTHERWISE: Justice Stevens: U.S. Should Compensate Guantanamo Prisoners Unjustly Held

In a speech to members of the corporate defense bar group Lawyers for Civil Justice retired Justice John Paul Stevens called for compensation for those held at Guantanamo without cause.  Describing Congress's actions to block closure of Guantanamo as "even more irrational than the detention of Japanese citizens" in WW II Stevens calls for a change in legal doctrine.  
While embracing Justice David Souter's dissent in Ashcroft v. Iqbal Stevens called for a change in doctrine.  Government should be liable under respondeat superior for constitutional violations, while affording personal immunity to policy-makers like Attorney General John Ashcroft who were presumably acting from patriotic impulse even if they "encouraged or tolerated improper efforts to obtain information about potential threats". 

Sunday, May 3, 2015

From Ferguson to Baltimore: The Fruits of Government-Sponsored Segregation | Economic Policy Institute

From Ferguson to Baltimore: The Fruits of Government-Sponsored Segregation | Economic Policy Institute

by Richard Rothstein

In Baltimore in 1910, a black Yale law school graduate purchased a home in a previously all-white neighborhood. The Baltimore city government reacted byadopting a residential segregation ordinance, restricting African Americans to designated blocks. Explaining the policy, Baltimore’s mayor proclaimed, “Blacks should be quarantined in isolated slums in order to reduce the incidence of civil disturbance, to prevent the spread of communicable disease into the nearby White neighborhoods, and to protect property values among the White majority.”
Thus began a century of federal, state, and local policies to quarantine Baltimore’s black population in isolated slums—policies that continue to the present day, as federal housing subsidy policies still disproportionately directlow-income black families to segregated neighborhoods and away from middle class suburbs.
Whenever young black men riot in response to police brutality or murder, as they have done in Baltimore this week, we’re tempted to think we can address the problem by improving police quality—training officers not to use excessive force, implementing community policing, encouraging police to be more sensitive, prohibiting racial profiling, and so on. These are all good, necessary, and important things to do. But such proposals ignore the obvious reality that the protests are not really (or primarily) about policing.
In 1968, following hundreds of similar riots nationwide, a commission appointed by President Lyndon Johnson concluded that “[o]ur nation is moving toward two societies, one black, one white—separate and unequal” and that “[s]egregation and poverty have created in the racial ghetto a destructive environment totally unknown to most white Americans.” The Kerner Commission (headed by Illinois Governor Otto Kerner) added that “[w]hat white Americans have never fully understood—but what the Negro can never forget—is that white society is deeply implicated in the ghetto. White institutions created it, white institutions maintain it, and white society condones it.”
In the last 50 years, the two societies have become even more unequal. Although a relatively small black middle class has been permitted to integrate itself into mainstream America, those left behind are more segregated now than they were in 1968.
When the Kerner Commission blamed “white society” and “white institutions,” it employed euphemisms to avoid naming the culprits everyone knew at the time. It was not a vague white society that created ghettos but government—federal, state, and local—that employed explicitly racial laws, policies, and regulations to ensure that black Americans would live impoverished, and separately from whites. Baltimore’s ghetto was not created by private discrimination, income differences, personal preferences, or demographic trends, but by purposeful action of government in violation of the Fifth, Thirteenth, and Fourteenth Amendments. These constitutional violations have never been remedied, and we are paying the price in the violence we saw this week.
Following the police killing of Michael Brown in Ferguson, Missouri, last August, I wrote The Making of Ferguson, a history of the state-sponsored segregation in St. Louis County that set the stage for police-community hostility there. Virtually every one of the racially explicit federal, state, and local policies of segregation pursued in St. Louis has a parallel in policies pursued by government in Baltimore.