Thursday, December 14, 2017

Judge Alex Kozinski made us all victims and accomplices.

Dahlia Lithwick is a brilliant lawyer-journalist who writes for Slate.  In this shocking confessional piece she describes how women acquiesced in the shameful and humiliating behaviour of a brilliant, powerful, and - now we all know- nefarious judge.

It's a must read. - gwc

Judge Alex Kozinski made us all victims and accomplices.

by Dahlia Lithwick

The first time I met Alex Kozinski was in 1996. I was clerking for the chief judge of the 9th U.S. Circuit Court of Appeals, and there was an orientation for new clerks in San Francisco. One of my co-clerks and I were introduced to the already legendary, lifetime-tenured young judge at a reception, and we talked for a while. I cannot recall what we talked about. I remember only feeling quite small and very dirty. Without my prompting, my former co-clerk described this interaction in an email to me this week. “He completely ignored me and appeared to be undressing you with his eyes,” he wrote. “I had never seen anyone ogle another person like that and still have not seen anything like it. Was so uncomfortable to watch, and I wasn’t even the subject of the stare.”***

Wednesday, December 13, 2017

OTHERWISE: Roy Reed, Times Reporter Who Covered the Civil Rights Era, Dies at 87 - The New York Times



Jim Dwyer writes

"‪Roy Reed, reporter, was near Meredith when he got shot, at the Selma jailhouse when King walked out, at the Pettus Bridge when blacks were bull whipped and clubbed. He would’ve been called fake news but he was the real deal. Don’t miss the John Schwartz obit "
When Dwyer, himself the "real deal",  uses the honorific "reporter" it reminds us of the heroics of the men and women, writers and photographers,  who bring us the stories of life and death, suffering and beauty around the world.

OTHERWISE: Roy Reed, Times Reporter Who Covered the Civil Rights Era, Dies at 87 - The New York Times

Wednesday, November 29, 2017

Seven Critical Truths About North Korea - The New York Times



Seven Critical Truths About North Korea - The New York Times

by Max Fisher

North Korea’s latest intercontinental ballistic missile test has provoked understandable alarm, particularly among Americans worried about the threat.
But many analysts reacted with something closer to grizzled stoicism, greeting the launch as dispiriting but unsurprising confirmation of North Korea’s capabilities and intentions. For them, news of the test, like the missile program itself, is unwelcome and concerning but not too terrifying.
It’s worth reviewing, then, some of the fundamentals that guide those experts’ views of North Korea and its weapons.
(1) It’s over. North Korea is a nuclear power now.
Policymakers will debate for years the precise moment at which the door closed to preventing or rolling back North Korea’s nuclear and missile programs. But that door is most likely now closed.
The North Koreans have little reason to give up their weapons programs, which bring them security against their otherwise vastly superior adversaries, and we have no way to make them.
Continue reading 




Thursday, November 16, 2017

$247 million verdict in J&J hip implant trial

BREAKING: J&J Slammed With $247M Verdict In Texas Hip Bellwether
Share us on: By Jess Krochtengel
Law360, Dallas (November 16, 2017, 12:34 PM EST) -- A Texas federal jury on Thursday hit Johnson & Johnson and its DePuy Orthopaedics Inc. unit with a combined $247 million verdict in a bellwether trial over DePuy’s Pinnacle line of metal-on-metal hip implants, delivering the third consecutive nine-figure verdict in the multidistrict litigation.

The unanimous jury found J&J and DePuy liable for a series of design and manufacturing defects, fraud and deceptive business practices, and found the companies had acted with wanton, reckless or malicious conduct. They awarded $90 million in punitive damages against J&J and $78 million in punitive damages against DePuy.

For the six individual plaintiffs, each of whom is from New York, the jury awarded more than $77 million in past and future medical expenses and pain and suffering, including each plaintiffs’ actual past medical expenses, the amounts of which were stipulated to by the parties. Four of the plaintiffs’ spouses were awarded loss of consortium damages totaling $1.7 million.

The verdict followed a two-month trial, the fourth bellwether in multidistrict litigation that includes more than 9,000 cases alleging design defects in DePuy’s Pinnacle Ultamet line of metal-on-metal hip implants. In 2016, Texas juries found in favor of two groups of plaintiffs from Texas and California, awarding them $502 million and more than $1 billion in damages respectively, though those verdicts were later reduced to $150 million and $543 million. In the first bellwether trial involving the Pinnacle Ultamet, a jury sided with J&J against a sole plaintiff from Montana.

The jury specifically found J&J and DePuy liable for design defect, negligent design, inadequate warning, manufacturing defect, negligent manufacture, negligent misrepresentation, intentional misrepresentation to the surgeons who performed the initial hip implant surgeries on the plaintiffs, fraudulent concealment from the plaintiffs and from the surgeons and deceptive business practices as to the plaintiffs and the surgeons. The jury also found J&J liable for negligent undertaking of a duty to provide services to DePuy and for aiding and abetting DePuy in its tortious conduct. The jury did not find J&J or DePuy liable for intentional misrepresentation to the plaintiffs.

During the trial, the six plaintiffs told jurors they’d suffered a range of injuries, including severe tissue damage that caused permanent muscle loss, intense pain, loss of hip movement and walking with a permanent limp. They say the Pinnacle product shed microscopic metal ions into their bodies, causing side effects that J&J and DePuy didn’t warn surgeons about and that could have been avoided with a safer design.

The plaintiffs alleged J&J and DePuy valued marketing above research and development and rushed the Pinnacle product into production without any testing in humans out of a desire to capture a greater market share. They claimed the companies pushed the Pinnacle product with an incorrect statistic that it was 99 percent successful and that they’d used cheaper, less safe alternatives in the manufacturing process to keep costs down, and said the alleged defects in the product turned people’s hips into “ticking time bombs.”

In his closing statement, plaintiffs' counsel Mark Lanier of The Lanier Law Firm asked the jury to punish J&J "for being indifferent to our health” through a large punitive damages award that would capture the attention of company executives who didn’t attend the trial.

J&J and DePuy made the case during the trial that metal-on-metal was a viable, reasonable option for hip implants and that its Pinnacle Ultamet product was offered to help doctors choose the device that best fit their patients. The companies said the metal-on-metal implant was developed to solve a bone degradation problem with an existing polyethylene hip implant on the market and denied putting profits above patient safety and long-term results.

In a closing statement, defense counsel Steve Quattlebaum of Quattlebaum Grooms & Tull PLLC said the plaintiffs had made an emotional appeal and told a good story but that their allegations were not backed up by evidence or science. Quattlebaum said there’s no evidence the surgeons who treated the six plaintiffs relied on or even saw the 99 percent statistic when choosing which kind of implant to use and said there’s no evidence the plaintiffs’ injuries were caused by the product specifications the plaintiffs had complained about during the trial.

The plaintiffs are represented by Mark Lanier of The Lanier Law Firm, Jayne Conroy of Simmons Hanly Conroy, Richard Arsenault ofNeblett Beard & Arsenault and Wayne Fisher of Fisher Boyd Johnson & Huguenard LLP

The defendants are represented by John H. Beisner, Stephen J. Harburg and Jessica Davidson Miller of Skadden Arps Slate Meagher & Flom LLP, Steven W. Quattlebaum of Quattlebaum Grooms & Tull PLLC and Tracie J. Renfroe of King & Spalding LLP.

The consolidated cases are Alicea et al. v. DePuy Orthopaedics Inc. et al., case number 3:15-cv-03489; Barzel v. DePuy et al., case number 3:16-cv-01245; Kirschner v. DePuy et al., case number 3:16-cv-01526; Miura v. DePuy et al., case number 3:13-cv-04119; Stevens v. DePuy et al., case number 3:14-cv-01776; and Stevens v. DePuy et al., case number 3:14-cv-02341, in the U.S. District Court for the Northern District of Texas

Wednesday, November 15, 2017

The Latest Ploy GOP Considers to Avoid a Roy Moore Senate Problem Likely Violates the 17th Amendment | Election Law Blog

The Latest Ploy GOP Considers to Avoid a Roy Moore Senate Problem Likely Violates the 17th Amendment | Election Law Blog

by Prof. Richard L. Hasen (UCLA Law School)

"I spent a good part of my Saturday afternoon tweeting and blogging in conversations with Hugh Hewitt about ways Republicans could deal with the Roy Moore mess.

At first Hewitt suggested cancelling the election altogether, and letting Strange just complete the term. I protested that cancelling an election already underway (military and other absentee  voter have already voted) is profoundly undemocratic and dangerous. It also appears to violate the 17th Amendment, which requires that an appointment of a temporary Senator be temporary, and that the state schedule a replacement vote.
Eventually Hewitt relented on this point (not because he thought it was undemocratic—indeed he seemed to believe Republicans are somehow entitled to Alabama’s two Senate seats without an election), but because he thought it would violate the 17th Amendment.
So he hit on another idea, and according to Politico it is an idea Republican leaders nationally are now weighing:  get Luther Strange, the temporary Senator appointed to replace Jeff Sessions, to resign, and then with the new vacancy, declare this election void and start over.
I’ll talk about the political implications in a bit, but first the constitutional issue.  Here’s what the 17th Amendment says, in pertinent part:
When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.
When Jeff Sessions resigned, that created a vacancy. Alabama law allowed the governor to fill that vacancy and to set the date for a special election. The governor (actually the predecessor) appointed Luther Strange and purported to set the date of the replacement election. (There’s some controversy about whether he had the authority to do this). The new governor reset (or properly set) the replacement election. We’ve had the primary, and now we are in the general election.
The governor was mandated to issue a writ of election. Because the writ of election has been already issued to fill a vacancy, the election goes forward under the language of the 17th Amendment. Temporary vacancies filled by the governor don’t change that. That’s a separate part of the 17th amendment and separate from the duty to issue the writ of election when there is the vacancy of an elected Senator."

New Jersey School Segregation Persists

'APARTHEID SCHOOLS' - "Segregation of N.J. schools 'has gone largely unchecked,' study finds," by POLITICO's Linh Tat: "Many black and Hispanic students in New Jersey continue to attend highly segregated schools - a situation that often starts in pre-K and could worsen as charter schools grow, according to a study released Wednesday. More than a quarter of the state's black students attend so-called 'apartheid schools' - where less than 1 percent of students are white - while the number of Hispanic students in such schools has doubled since 1989 and is increasing, according to the UCLA Civil Rights Project. Moreover, the vast majority of black and Latino students are enrolled in schools considered doubly segregated by race and income, the researchers said." Read the report

Sunday, October 29, 2017

James Madison’s Lessons in Racism - The New York Times

The historian Noah Feldman - author of the forthcoming Three Lives of James Madison - Genius, Partisan, President - has a very interesting take on Madison. Apt for our age he espoused freedom for slaves, but compromised due to economic pressures, including his own. - gwc
James Madison’s Lessons in Racism - The New York Times



by Noah Feldman

When we think about the framers of the Constitution and how they handled the issue of race, we conjure up the extremes: the hypocrites and the heroes. At one end is Thomas Jefferson, who wrote that “all men are created equal” but believed Africans were inferior and fathered children with an enslaved woman. At the other end is Alexander Hamilton, who, at least as depicted by admirers like the biographer Ron Chernow and the playwright Lin-Manuel Miranda, was an ardent abolitionist.
This framing, however, is simplistic and misleading. It is simplistic because it overlooks harder-to-categorize positions like that of James Madison, the lead drafter of the Constitution, who genuinely rejected the idea of racial inferiority yet still failed to put his beliefs in equality and liberty into practice. And it is misleading because it implies that as long as we avoid having racist attitudes, we can succeed in avoiding racist policies. We think that if we’re not Jefferson, we must be Hamilton. But this is not the case.
In this respect, Madison is the founding father who can teach Americans the most about our present contradictions on race. Madison insisted that enslaved Africans were entitled to a right to liberty and proposed that Congress purchase all the slaves in the United States and set them free. Yet not only did he hold slaves on his plantation in Virginia and fail to free them upon his death, but he also originated the notorious three-fifths compromise in the Constitution, which counted a slave as three-fifths of a person for purposes of legislative representation.

Friday, October 13, 2017

Roy Moore Led Charge Against Removing Segregation From Alabama Constitution – Talking Points Memo

Roy Moore Led Charge Against Removing Segregation From Alabama Constitution – Talking Points Memo

By CAMERON JOSEPH Published OCTOBER 13, 2017 6:00 AM

Alabama’s state constitution still contains the following language:
“Separate schools shall be provided for white and colored children, and no child of either race shall be permitted to attend a school of the other race.”

In 2004, a bipartisan coalition of Alabama leaders moved to eliminate sections of the state constitution mandating school segregation and poll taxes. They assumed it’d be an easy feat — until Roy Moore got involved.

Democrats and Republicans led by then-Gov. Bob Riley (R) worked together on an amendment to remove language in the state constitution mandating “separate schools for white and colored children” and allowing poll taxes, Jim Crow-era requirements that people to pay to vote that disenfranchised most black people.


The changes were purely symbolic — all of the state constitutional language had already been struck down by state and federal courts — but civil rights and business leaders saw it as a way to heal old wounds and make the state more attractive to big business.

The opposite happened instead, and Moore’s fierce opposition likely made the difference.

“He had a huge impact. It was a measure that was set to pass without much opposition and then because he got involved it changed the dynamic completely,” said Susan Kennedy of the Alabama Education Association, the state public teachers’ lobby that supported the amendment.

Sunday, September 24, 2017

The day nine young students shattered racial segregation in US schools | World news | The Guardian



Sixty years ago school started thee weeks late in Little Rock as Gov. Orville Faubus defied the United States Supreme Court's school integration order.  the image above became the an icon of white racist resistance.

But the lives of the two girls at the center of the photo - the stoic Elizabeth and the raging Hazel took an unexpected turn.  Years later  Hazel called Elizabeth.  David Margolick tells the story of their not so easy reconciliation in his book Elizabeth and Hazel.



The day nine young students shattered racial segregation in US schools | World news | The Guardian

by David Smith

It was September 1957, the Jim Crow era of racial segregation, and nine black pupils little guessed they were about to plant a milestone in the struggle for civil rights to follow those of Emmett Till, a 14-year-old lynched in Mississippi in 1955, and Rosa Parks, who refused to give up her seat to a white passenger on a bus in Alabama later the same year.

Brown v Board of Education, the landmark 1954 supreme court ruling that segregated schools were unconstitutional, should have meant she and fellow pupils could take their places at Central High. But Governor Orval Faubus of Arkansas, in the deep south, remained defiant and used the national guard to block their enrollment. The African American children were left in limbo for three weeks.

On the first day of term, the national guard were there to stop the nine entering Central High, where all 1,900 attendees were white. Three weeks later, on 25 September, the group braved a hostile white crowd, climbed the school steps and were escorted to class by US army troops. They became known and revered as the Little Rock Nine.

Eight of the nine are still living and will return to Little Rock on Monday to mark the 60th anniversary of the US’s first major battle over school segregation. A day later, several will be in Washington to speak at the Smithsonian National Museum of African American History and Culture. It will be a moment to reflect on how far the US has come in unravelling educational apartheid – and whether, in recent years, progress has stalled or even reversed.

The share of “intensely segregated” black schools has trebled over the past 25 years, according to research by the Civil Rights Project at the University of California, Los Angeles (UCLA), which warns of a “resegregation” taking hold. One of the Black students, Minnie Jean] Trickey, who turned 76 earlier this month, asks bleakly: “What kind of country doesn’t see education for all children to be the primary value? I think the US has two values: segregation, which they do so well, and violence.”

Speaking by phone from her longtime home in Canada, she can still remember vividly the combination of segregation and violence that left her “whole body shaking with fear and shock” as a teenager six decades ago.


On 23 September 1957, the group did get into the building with police protection. But an angry mob of more than a thousand white people had gathered in front of the school, chanting racist abuse such as “Go back to Africa”.

“I really think that we were afraid to look at the mob; at least I was,” says Trickey. “So we just heard it and it was like a sports event, that sound, the roar, but it was a roar of hatred, and just thinking about it makes me shake.”****

KEEP READING

Harvard Law acknowledges burden of slave labor

We are in a period of intense debate about race - because we have elected a racist President of the United States.  Is that too harsh? Not after his descent at Trump Tower,  not after his birther: calumny, and certainly not after his inability to directly address the virulent racism on display at Charlottesville, Virginia. 
There is a surface plausibilty to leaving up the monuments to heroes of the war to save slavery.  Plausible if post-civil rights movement we had erected statues, renamed bridges and roads (other than the de rigeur re-naming of the main street in Black communities).
A few months ago Georgetown acknowledged  its debt to the slaves sold by Jesuits to allow the school to remain in operation. - gwc