Monday, January 26, 2015

More historical perspective on the Fair Housing Act (CL&P Blog)

Levittown lease with option to buy.."The tenant will not allow the premises to be
"used by anyone other than members of the caucasian race..," except for domestic servants.
Texas Department of Housing v. Inclusive Communities Project, argued in the Supreme Court last week, presents the court with an opportunity to eliminate the disparate impact approach to dismantling de facto segregation.  The concept establishes a rebuttable presumption of discrimination where "disparate impact is shown". Many fear that as with public school integration John Roberts will limit the law's reach to remedies for intentional discrimination like that which built the iconic, archetypal suburb Levittown, New York. - gwc

More historical perspective on the Fair Housing Act (CL&P Blog):

by Scott Michelman

"As we've discussed recently, the Supreme Court is set to decide by June whether the Fair Housing Act covers policies and practices that contribute to racial segregation in housing where there has been no showing they were intended to do so. (See here and [in Elizabeth Warren's WaPo op-ed piece], for instance.)

This morning, Brian Wolfman discussed some of the historical practices that motivated the Fair Housing Act and other civil rights laws of the 1960s.

As a complement to the Garrett Epps Atlantic article Brian highlighted, check out Washington Post opinion writer Charles Lane's discussion of the role of the government in perpetuating housing discrimination during the mid-20th century, including the government's embrace of racially-restrictive covenants on who could buy homes. These contractual provisions -- designed to keep out "what the federal government called 'inharmonious racial groups'" -- were "actively encouraged" by the Federal Housing Administration from 1934 to 1948, Lane recounts.

Noting the progress made since the passage of the Fair Housing Act in 1968 but also that census data still show a lot of racial segregation in housing, Lane frames the argument about the continued vitality of disparate-impact housing discrimination claims this way: 

[T]he question is how active Big Government should still be in the fight to undo the residential segregation that Big Government did so much to create. 
 I am reminded of Justice Ginsburg's metaphor from her dissent in Shelby County v. Holder (2013), in which the Supreme Court struck down the statutory formula that undergirded the preclearance requirement, a key element of the Voting Rights Act: "Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet." 

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Sunday, January 25, 2015

The stubborn legacy of one party rule in the South | GOPLifer

Is Ladd correct?  How closely does southern politics today resemble the politics of the region in 1950?  How did electoral patterns in the south affect the Supreme Court's approach to racial segregation? in Detroit?  Kansas City? Seattle?  With the Voting Rights Act of 1965 declared outmoded by the Supreme Court what can we expect next? Does residential racial segregation mean an end to public school integration?  Can equitable funding of education litigation make racial integration unobjectionable to white voters? - gwc

The stubborn legacy of one party rule in the South | GOPLifer

by Chris Ladd // GOP Lifer

"Mississippi’s first Governor was a Democrat. Apart from the period of occupation after the Civil War, every subsequent Governor of Mississippi was a Democrat across a stretch of nearly 200 years.

With a handful of caveats and outliers, that pattern holds across every Southern state, extending up and down the government structure to every elected office. Never in our history have the Southern states tolerated a sustained, competitive multi-party system. Popular will has always been contained through single-party rule.

 Last year’s election marked the end of a four-decade period which some imagined would break that deadlock. It was not an interruption of the traditional pattern, but merely an extended flag ceremony, a passing of the baton.

With the last white Southern Democrats removed from Congress, the South has now completed a remarkable transformation, converting a one-party white racist alliance under the Democratic banner to a one-party white racist alliance under the Republicans.

This unprecedented mass movement has brought radical changes to the two parties at the national level while allowing the South to continue its political traditions almost uninterrupted. Politics in the South today more closely resembles southern politics in the mid-20th century than it has at any point since.

 There’s far more here than can fit into a single blog post. It may take a while to get through it all. As near as I can tell, here are the questions that need to be addressed in order to understand the state of politics in the South:

 – Is Southern politics really less competitive than elsewhere in the country?

– Why the “Southern Strategy” is a myth.

 – How did the flight of the Dixiecrats change the two major parties?

 – What makes Southern culture so hostile to political competition?

– How did religion become a proxy for white supremacy?

 – Why does a repressive culture love “libertarian” rhetoric?

 – How is capitalism finally sucking the South into the United States?

For a quick comparison, here are graphical representations of political party strength over time for a variety of states:



New York




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Respecting the Seventh Amendment | Joanne Doroshow

Respecting the Seventh Amendment | Joanne Doroshow

by Joanne Doroshow  //Center for Justice and Democracy at New York Law School

Center for "There are few democratic institutions in America more embattled than the civil justice system. No matter what one thinks of "tort reform," the political term often used to describe laws to weaken this system, one thing is clear: For the last 35 years, questions about the future of civil juries have been dumped on the plate of Congress and every statehouse in America. Many legislatures have been pressured to undermine the civil jury system by restricting access to the courts and limiting juries' power and authority. We are seeing more proposals to limit the right to jury trial than ever before.

If the framers of our Constitution were alive today, they would be appalled by this development. Our nations' founders considered the right to trial by jury in civil cases to be one of our most important rights.

In virtually every major document and speech delivered before the Revolution, the colonists portrayed trial by jury as, if not their greatest right, one that was indispensable. The right to civil jury trial was a key issue over which the American Revolution was fought. It was so essential to our nation's founders that they preserved it directly in the Bill or Rights as the 7th Amendment. In a 1979 case, U.S. Supreme Court Justice William Rehnquist explained:

 [T]hose who oppose the use of juries in civil trials seem to ignore [that] the founders of our Nation considered the right of trial by jury in civil cases an important bulwark against tyranny and corruption, a safeguard too precious to be left to the whim of the sovereign, or, it might be added, to that of the judiciary.
A chief function of the jury system is to provide a check on official or arbitrary power. It was the colonists' experience that the civil jury system could be vulnerable to political attacks by those in power. 
The framers could hardly have imagined that such attacks would still be a problem 223 years after the Amendment was ratified. Unfortunately, many lawmakers in recent times have allowed the civil jury system to be weakened or, in some cases, completely shattered.

Consider all the ways this has happened. Many states have enacted "caps on damages," or limits on compensation to injured victims after they have won their case. The determination of damages is one of the jury's most important functions. As the Georgia Supreme Court said in its 2010 decision striking down caps in that state, "the determination of damages rests 'peculiarly within the province of the jury.'" Caps undermine a jury's fundamental purpose. Even worse, they transfer the jury's job to cash-greased politicians, who force courts to apply "one-size-fits-all" limits irrespective of the evidence that a jury sees."

***read more**

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Thursday, January 22, 2015

Justice Scalia keeps both sides guessing in Fair Housing Act case: In Plain English : SCOTUSblog

Justice Scalia keeps both sides guessing in Fair Housing Act case: In Plain English : SCOTUSblog:

by Amy Howe

"Yesterday the Supreme Court did something that it didn’t get to do in two other recent cases involving the Fair Housing Act: it heard oral arguments. As I noted in my preview of Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, the previous two cases had settled before the oral argument. The reason? Civil rights groups were worried that the conservative Justices on the Roberts Court would rule that the Fair Housing Act does not allow lawsuits based on “disparate impact” – that is, an allegation that a law or policy has a discriminatory effect, even though the discrimination was not on purpose. 

The ability to bring such claims is important, they believe, because these days lawmakers and landlords rarely tell people that they intend to discriminate; discrimination is much more subtle, and it’s easier to prove that an action has a discriminatory effect. Many businesses, landlords, and lawmakers want the Court to rule that disparate-impact claims are not allowed under the FHA for much the same reason: why should we face lawsuits, they ask, if we have good intentions and didn’t mean to discriminate but our actions just so happen to disproportionately affect minorities?

Going into yesterday’s oral argument, we would have expected a close case. After all, the nine Justices on the Roberts Court often divide five to four in high-profile cases like these. 

What most people would not have anticipated, however, was that the case could turn out to be a real nail-biter, with Justice Antonin Scalia suggesting at times (but not at others) that he might be inclined to vote to allow disparate-impact claims. Let’s talk about the argument in Plain English.,,,

read more"

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Wednesday, January 21, 2015

How long? Not long! - ML King at Montgomery , Alabama

How long? Not long! M.L.King, Jr. at Montgomery, Alabama, March 25, 1965
The speech they were not allowed to use in the movie - because it is copyrighted and owned by the King estate.
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Tuesday, January 20, 2015

BP spill: Penalty Phase Settlement likely - Bloomberg

It's Looking More Like a BP Settlement Over Gulf Disaster - Bloomberg
By Margaret Cronin Fisk and Laurel Brubaker Calkins Jan 20, 2015 

Last week’s ruling that BP Plc (BP/)’s Macondo well dumped less oil into the Gulf of Mexico than the U.S. government claimed may trigger a settlement before a decision on the amount it must pay after a trial set to begin this week. A federal judge determined on Jan. 15 that the penalty will be based on the size of the spill being 3.19 million barrels, about 25 percent less than estimated by the government. 
That ruling, which was followed by a 5.3 percent jump in BP shares, reduced the potential maximum pollution fines for the 2010 spill to $13.7 billion from $18 billion and increased the incentives for a settlement. “There’s a very good chance -- about 75 percent -- that they’ll settle,” said David Berg, a Houston trial attorney who has been following the litigation. 
Even if the case doesn’t settle before a trial verdict, BP probably won’t face a maximum fine against BP, Berg said. The range will likely be from $8 billion to $10 billion, he said. Even a fine of that size would be the largest civil penalty under the Clean Water Act, according to the Environmental Protection Agency. The current record is the $1 billion settlement Transocean Ltd. (RIG), which owned the Deepwater Horizon drilling rig that burned and sank in the Gulf spill, reached with the U.S. in 2013."

Monday, January 19, 2015

Will the F.D.A. Kill Off E-Cigs? -

Will FDA regulation crush the "safe" e-cigarette under the wight of the regulations it is developing for ordinary tobacco products? frets the "free enterprise" oriented AEI op-ed writer. - gwc

Will the F.D.A. Kill Off E-Cigs? -

by Sally Satel // American Enterprise Institute

WASHINGTON — ELECTRONIC cigarettes, battery-powered devices that convert a solution of nicotine and other chemicals into a vapor that can be inhaled, or “vaped,” have the potential to wean a vast number of smokers off cigarettes. No burned tobacco leaves, no cancer-causing tar: a public health revolution in waiting.

The problem is, not enough smokers are switching to e-cigarettes, despite their relative safety — and understandably so. Smokers are barraged with news about inaccurate labeling, shoddy counterfeits and poorly made e-cigarettes that emit toxins and cancer-causing chemicals in vapor. And to the frustration of smokers, public health experts and, yes, manufacturers, the Food and Drug Administration, which has not yet set up sensible regulations, is making the situation worse.

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Oil Prices to Play Into BP Fine - WSJ

Oil Prices to Play Into BP Fine - WSJ:

“We look forward to presenting our case at trial,” said J. Andrew Langan, a lawyer representing BP’s subsidiary. The company “should be subject to a Clean Water Act penalty at the lower end of the statutory range.”

BP had $30.7 billion in cash by the end of September. But the company argues that it has no obligation to lend money to its subsidiary and that the court should disregard the broader BP group’s financial resources in imposing a fine.

BP also argues it should get credit for leading the “largest environmental response operation in the nation’s history,” according to court pleadings. The company has incurred $43 billion of spill-related costs, including criminal and civil settlements and $14 billion for the Gulf cleanup.

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Sunday, January 18, 2015

Will the Supreme Court Annihilate One of the Most Effective Tools for Battling Racial Segregation in Housing? | Economic Policy Institute

Will the Supreme Court Annihilate One of the Most Effective Tools for Battling Racial Segregation in Housing? | Economic Policy Institute

The segregation of low-income minority families into economic and racial ghettos is one cause of the ongoing achievement gap in American education. Students from families with less literacy come to school less prepared to take advantage of good instruction. If they live in more distressed neighborhoods with more crime and violence, they come to school under stress that interferes with learning. When such students are concentrated in classrooms, even the best of teachers must spend more time on remediation and less on grade-level instruction.
The Economic Policy Institute, together with the Haas Institute for a Fair and Inclusive Society at the University of California, have organized a large group of housing scholars—historians and other social scientists—to sign a friend-of-the-court brief urging that housing policies perpetuating segregation should be banned.
The case was filed by the Inclusive Communities Project (ICP), a Dallas civil rights group that had been promoting racial integration in the Dallas area by assisting African American families who were eligible for rent subsidies (commonly known as “Section 8” vouchers) to find affordable apartments in predominantly white neighborhoods. This was difficult to accomplish because so many of the tax-subsidized low-income family housing developments that the Texas Department of Housing approved were located in heavily minority and low-income communities.
Those who defend practices like those of the Texas Department claim that they do not intentionally promote segregation but that developers pick minority and low-income communities for subsidized housing, not to purposely reinforce segregation, but because such communities are convenient for prospective tenants who live nearby.
Convenience should be no excuse, however, for perpetuating segregation. Our brief makes the following argument: historically, the federal, state and local governments have, in concert with each other and with private interests, acted to purposely segregate metropolitan areas by race. Once these patterns of segregation were established by deliberate racial policy, placement of federally subsidized housing (to be occupied predominantly by minority tenants) in already segregated neighborhoods unlawfully reinforces this segregation, even if Jim Crow policies are no longer in effect and no purposeful intent to segregate can be proven. It should be deemed unlawful for government agencies simply to respond to developer proposals without considering their racial impact, because the Fair Housing Act requires these agencies to affirmatively pursue integrated housing. As our brief recounts, a much earlier (1972) Supreme Court decision stated that the Fair Housing Act’s main purpose is to “replace ghettos ‘by truly integrated and balanced living patterns.’” This purpose would be improperly repudiated if the Court were now to permit practices like those of the Texas Department of Housing.
It is unlikely but possible that the Texas case will be settled before the Supreme Court issues its ruling. If so, developers will almost certainly seek another case in which the court will be invited to permit practices that perpetuate segregation, even where a deliberate intent to segregate cannot be proven. Possibly, we may again file a brief, tailored to the facts of a new case. If you are an historian or social scientist who would like to join any future such brief, please let us know and

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Bad Blood - Death Case Lawyer vs. Texas Court | The Marshall Project

Bad Blood | The Marshall Project

by Maurice Chammah

"On Wednesday, the judges of Texas’ highest criminal court told a defense attorney named David Dow he would not be able to practice in front of them for the next year. The Court of Criminal Appeals decided that Dow had filed a motion to stop the execution of his client, Miguel Angel Paredes, too late, and that since he’d done the same thing in a different case in 2010, he will now be suspended.

Neither the court nor Dow, a professor at the University of Houston Law Center and one of the best known death penalty defense attorneys in the country, will comment publicly. But this move is the latest evidence of an ongoing feud in Texas between lawyers who appeal on behalf of inmates facing executions, Dow chief among them, and the judges who rule on their claims.

On the surface, the fights have been about deadlines, but, as criminal justice blogger Scott Henson described Dow’s relationship with the judges back in 2009, “Basically these folks just don't like each other on a level that transcends any given issue.”

Miguel Paredes was executed last October for a triple murder of gang rivals, committed in 2000. The summer before the execution, he wrote a letter to Dow asking for help, and Dow volunteered — without being appointed to the case — to investigate Paredes’ claims. It took a while owing to Dow’s busy schedule, but he found that Paredes’ original lawyer had called no witnesses at the trial and that Paredes was allowed to waive an early appeal while on anti-psychotic medications.

Dow filed an appeal and a call for a stay seven days before the execution. The court said he should have filed it the day before. The court has explicitly said the deadline is seven days before an execution, but in practice attorneys know that they must have it in eight days before. It wasn’t the first time Dow had clashed with the court over deadlines.*****"

read more

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