Tuesday, September 25, 2012

New Ruling on Katrina Favors Corps of Engineers - NYTimes.com

Bernouilli's principle -  animation
"as the velocity of a fluid increases, the pressure exerted by that fluid decreases."

New Ruling on Katrina Favors Corps of Engineers - NYTimes.com

A federal appeals court has reversed itself, ruling that the Army Corps of Engineers is not liable for devastation caused in Hurricane Katrina by a government-built navigation canal - the Mississippi River Gulf Outlet.  Dredged from 1958-1968, MRGO has now been "deauthorized" by Congress.
The Court of Appeals for the Fifth Circuit ruled that the United States of America is immune from lawsuits for decisions made by the Corps in design and maintenance of the 76-mile shipping channel carved through Louisiana wetlands  by the Corps.
“MR-GO’s size and configuration greatly aggravated the storm’s effects on the city and its environs,” wrote Judge Jerry E. Smith, writing for a three-judge panel, but the "discretionary function exception" to the federal tort claims act “completely insulates the government from liability.”
In March, the same panel had ruled that the government was liable for some of the flooding, affirming a landmark ruling by Judge Stanwood Duval Jr. of federal District Court in 2009 (647 F. Supp. 2d 644)
Treating the government's petition for en banc review by the entire circuit as a petition for panel rehearing, the three judge panel withdrew its earlier pro-plaintiff opinion  in In re Katrina Canal Breaches Litig., 673 F.3d 381 (5th Cir. March 2, 2012) and reversed itself (September 24, 2012).  The court concluded that even though the Army Corps of engineer's MRGO's design did not gain immunity under the Flood Control Act, 33 USC 702c, yet any design flaw-caused damages were entitled to immunity under the Federal Torts claims Act's discretionary function exception 28 USC 2680 (a).  That measure provides that the government's consent to suit does not include
"(a) Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused. "

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At Cravath, Swaine & Moore, Loving the Work Led to Promotions - NYTimes.com

Now get this: In 1976 Times columnist James Stewart, fresh out of Harvard Law, started at Cravath.  He made $16,500.  I was a pass-fail graduate of Rutgers - the People's Electric Law School - I started my first law job - earning $13,500 as a J.D. desirable - but not required - Business Rep at Actors Equity Association- AFL-CIO.   But today an associate at Cravath makes $160,000 to start and an associate at a small firm makes perhaps $60,000.  A year at a private law school then was $2,500.  Today it is $45,000 or more.  You do the math. - GWC
At Cravath, Swaine & Moore, Loving the Work Led to Promotions - NYTimes.com:
by James B. Stewart

When I crossed the threshold of Cravath, Swaine & Moore 36 years ago next month, fresh from the bar exam and Harvard Law School, I entered a new world and began what turned into a life-changing experience.
Cravath’s offices were at One Chase Manhattan Plaza, headquarters for the Rockefellers’ Chase Manhattan Bank and a magnet for prominent law firms. I was just a short elevator ride away from lunch with my friends at Davis Polk & Wardwell; Milbank, Tweed, Hadley & McCloy; and Willkie Farr & Gallagher. All of Cravath’s lawyers and support personnel fit into two floors — 57 and 58 — and everyone knew one another, except for a cadre dispatched to Armonk, N.Y., for an I.B.M. case and small offices in London and Paris.
As a newcomer, I shared an office with a more senior associate, who got the coveted window seat. Cravath did its best to keep the outside world at bay and minimize distractions. Among these was what other lawyers were being paid. I was told when I arrived that my salary would be $16,500 and it was Cravath policy to always pay the highest rate. While my friends at other firms were speculating avidly about whether, say, Sullivan & Cromwell would raise starting salaries and others would follow, at Cravath we knew that if they did, our firm would top them. We were all paid the same based on seniority, and bonuses were unheard-of, so there were no jealousies or resentments.

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Monday, September 24, 2012

3 wounded in Colorado mass shooting sue theater owner - Denver Post

James Holmes, the accused Aurora, Colorado, gunman may face more charges.
James Holmes - deranged shooter at the Dark Knight opening

Aurora theater shooting victims file suits against Cinemark

POSTED:   09/21/2012 02:08:07 PM MDT
UPDATED:   09/22/2012 08:31:15 AM MDT

-- Three people wounded in the July mass shooting at a Colorado multiplex are suing the theater owner, claiming that security was lax the night a gunman opened fire and killed 12 people.

Two lawsuits filed Friday against Cinemark USA Inc., owner of Century Aurora 16, allege negligence on the part of the corporation because the theater lacked adequate security or sufficient alarm systems:.
"Although the theater was showing a midnight premier of the movie and was expecting large crowds of people to attend the midnight showing, no security personnel were present for that showing," according to both lawsuits, which were filed by the same law firm."The exterior doors to the theater were lacking in any alarm system, interlocking security systems, or any other security or alarm features."
Complaint: Nowlan v. Cinemark USA 
Updated: 9/27/2012 Cinemark has moved to dismiss, arguing that the massacre was a "random act", unforeseeable as a matter of law.
Recommendation of Magistrate Judge denying motion to dismiss under FRCP 12(b)(6) - January 23, 2012

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Friday, September 21, 2012

Tort Law in President Taft's Inaugural Address

In 1909 Congress has just passed the Federal Employer's Liability Act - which dramatically reformed the tort system for one group of workers: railroad workers engaged in interstate commerce.  Next up: Theodore Roosevelt on workers compensation. - GWC
TortsProf Blog: Tort Law in William Howard Taft's Inaugural Address:
by Prof. Christopher J. Robinette
"Yesterday I asked which inaugural address contained a direct discussion of tort law.  The answer is William Howard Taft's, delivered on March 4, 1909.  Taft discussed the Federal Employers Liability Act (FELA) toward the end of his address: There is one other matter to which I shall refer. It was made the subject of great controversy during the election and calls for at least a passing reference now. My distinguished predecessor has given much attention to the cause of labor, with whose struggle for better things he has shown the sincerest sympathy. At his instance Congress has passed the bill fixing the liability of interstate carriers to their employees for injury sustained in the course of employment, abolishing the rule of fellow-servant and the common-law rule as to contributory negligence, and substituting therefor the so-called rule of "comparative negligence.""

Thursday, September 20, 2012

Colorado Prosecutors End Bid to See Holmes’s Notebook - NYTimes.com

Colorado Prosecutors End Bid to See Holmes’s Notebook - NYTimes.com:
by Jack Healy
 "CENTENNIAL, Colo. — James E. Holmes, accused of killing 12 people in a Colorado movie theater, appeared in court on Thursday, his shaggy hair now shorn and brown rather than neon orange, as prosecutors, saying they did not want to delay proceedings, abandoned their fight to see a notebook he sent to a university psychiatrist.
The contents of the notebook could provide a revealing glimpse into the mental state of Mr. Holmes in the days and weeks leading up to the shootings inside a sold-out midnight premiere of “The Dark Knight Rises” in Aurora, Colo."
Public defenders for Mr. Holmes have argued that the notebook cannot be made public or shared with prosecutors because it is privileged communication between Mr. Holmes and Dr. Lynne Fenton, a psychiatrist at the University of Colorado Denver, who saw Mr. Holmes briefly in June.

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Saturday, September 15, 2012

Pennsylvania: Gideon fail New Jersey: Gideon fulfilled | Professional Responsibility: A Contemporary Approach

Pennsylvania: Gideon fail New Jersey: Gideon fulfilled | Professional Responsibility: A Contemporary Approach:

The New Jersey Law Journal Editorial Board, commenting on the travesty that is Pennsylvania’s county-based Public Defender system, observes that the joint state government commission that studied the problem failed to point to the solution next door in New Jersey where the 550 lawyer statewide Office of the Public Defender has maintained independence and competence. That was most dramatically seen in the 25 years of capital defense from 1982 – 2007.  The capital defense unit tried over 200 cases.  Over 60 death sentences were handed down.  Yet no one had been executed when the legislature in 2007 replaced capital punishment with life without parole.- GWC
Gideon v. Wainwright and its progeny are the font of contemporary jurisprudence on the right to a fair trial. But this right too often has been honored in the breach and courts have struggled to implement the constitutional mandate. The National Right to Counsel Committee’s comprehensive 2009 report, “Justice Denied,” shows “there is uncontroverted evidence that funding still remains woefully inadequate and is deteriorating in the current economic difficulties that confront the nation. Because of insufficient funding, in much of the country, training, salaries, supervision, and staffing of public defender programs are unacceptable for a country that values the rule of law”.
Unfortunately, one of the most dramatic instances of that failure is in our neighboring state, Pennsylvania. It is the only state in the country which does not provide state funding of criminal defense for the indigent. Indigent defense is left to the counties. A thorough report by a committee of the Pennsylvania Supreme Court concluded in 2003 that “indigent criminal defendants are not assured of receiving adequate, effective representation.” Nothing changed. But the exposure of the dreadful corruption of juvenile justice by two now-jailed judges in Luzerne County prompted the Legislature to commission a new study. Its December 2011 report, “A Constitutional Default,” concluded that the “Kids for Cash scandal showed how failure to maintain professional independence of defense attorneys from political interference by the judiciary can create systemic injustice [and that] Pennsylvania’s overly localized indigent defense system can lead to inadequate supervision and training, which in turn can lead to a shocking deterioration in professional standards….
…[In New Jersey the statewide Office of the Public Defender] demonstrated the necessity of, and provided key support for, our Supreme Court’s unparalleled proportionality review of capital cases. The OPD’s participation from beginning to end in nearly every capital case made possible our Supreme Court’s commitment that, as Justice John Wallace Jr. observed, “[w]hen life hangs in the balance, error has no place.

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NSAID risk persists five years post-MI | theheart.org

NSAID risk persists five years post-MI | theheart.org:
Despite American Heart Association Guidelines recommending  against use of NSAIDS (like Celebrex) by people who have had heat attacks, 44% of patients still used the anti-inflammatory medicines
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Tuesday, September 11, 2012

Program Offering Immigrants Reprieve Is Off to Quick Start - NYTimes.com

Young illegal immigrants waiting in line to see a lawyer.
Nice work if you can get it.
Program Offering Immigrants Reprieve Is Off to Quick Start - NYTimes.com:
by Julia Preston
 "One month after the Obama administration started a program to suspend deportations of young illegal immigrants, more than 72,000 of them have applied for the temporary reprieve, senior immigration officials said on Tuesday, and this week the first approvals have been granted"

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Other Men's Flowers and the Art of Persuasion - NYTimes.com

We read Cicero in 3rd year of high school.  Everyone read Cicero because everyone studied Latin. We learned hyperbole, apostrophe, ad hominem attack, and many more modes of argument - as we dissected Cicero's First Oration against the conspiracy of Lucius Catilina in 63 B.C. It begins
WHEN, 1 O Catiline, do you mean to cease abusing our patience? How long is that madness of yours still to mock us? When is there to be an end of that unbridled audacity of yours, swaggering about as it does now? Do not the nightly guards placed on the Palatine Hill—do not the watches posted throughout the city—does not the alarm of the people, and the union of all good men—does not the precaution taken of assembling the senate in this most defensible place—do not the looks and countenances of this venerable body here present, have any effect upon you? Do you not feel that your plans are detected? Do you not see that your conspiracy is already arrested and rendered powerless by the knowledge which every one here possesses of it? What is there that you did last night, what the night before—where is it that you were—who was there that you summoned to meet you—what design was there which was adopted by you, with which you think that any one of us is unacquainted?

Other Men's Flowers and the Art of Persuasion - NYTimes.com:
by Sam Leith
 "Rhetoric, simply put, is the study of how language works to persuade. So any writer seeking to make a case, or hold a reader’s attention — which is more or less any writer not in the service of the Democratic People’s Republic of Korea — has something to learn from it.

If the classical orators have modern counterparts in the realm of the written word, pre-eminent among those counterparts are the authors of opinion pieces. Here is persuasion overt, persuasion front and center. The techniques that served Cicero will just as effectively serve modern writers of opinion."

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Friday, September 7, 2012

Inside Bill Clinton's Epic Convention Speech

Legal writing is rhetoric - persuasive writing.  Bill Clinton's speech is an excellent example. - GWC
Inside Bill Clinton's Epic Convention Speech:

The former president's speech brought down the house with a speech twice as long as planned. He made a few changes from his prepared remarks: You can see the original speech in black below, with deletions in red and additions in blue.

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Thursday, September 6, 2012

Why Bill Clinton's Speeches Succeed - James Fallows - The Atlantic

These principles certainly apply to speaking to juries! - gwc
Why Bill Clinton's Speeches Succeed - James Fallows - The Atlantic:
Because he treats listeners as if they are smart.

That is the significance of "They want us to think" and "The strongest argument is" and "The arithmetic says one of three things must happen" and even "Now listen to me here, this is important." He is showing that he understands the many layers of logic and evidence and positioning and emotion that go into political discussion -- and, more important, he takes for granted that listeners can too.

The main other place you hear discussion based on the same assumption that people of any background, education level, or funny-sounding accent can understand sophisticated back-and-forth of argument and counter-claim is sports-talk radio. ("I understand the concern about Strasburg's arm. But ... ") You hear insults and disagreements and put-downs on sports-talk discussions. You rarely hear the kind of deliberate condescension, the unconcealable effort as if talking to slow learners, of many political "authorities" addressing the unwashed.

It's the difference between clarifying, and over-simplifying. Clarification, with the confidence that people can understand the back and forth, lies behind passages like this, which characterized most of the speech. Emphasis on the parts that show his approach being applied:

We Democrats, we think the country works better with a strong middle class, with real opportunities for poor folks to work their way into it, with a relentless focus on the future, with business and government actually working together to promote growth and broadly shared prosperity. You see, we believe that "We're all in this together" is a far better philosophy than "You're on your own."

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Tuesday, September 4, 2012

Asbestos ban in Canada boosted by Parti Quebecois victory

from Jon Gelman's Workers Compensation blog

Asbestos Ban In Canada Gets Boast - Parti Quebecois Wins Election!: "...the Parti Quebecois (PQ) said this week that, if it's elected, it would cancel a $58-million loan Quebec's Liberal government approved to help reopen the Jeffrey Mine, one of Canada's last asbestos mines."

Click here to read:
Quebec separatists win election, say TV networks

Read more about the battle to Ban Asbestos in Canada
Feb 18, 2010
The Canadian Journal of Medicine had also endorsed a ban on Canadian asbestos production. "Canada's government must put an end to this death-dealing charade. Canada must immediately drop its opposition to placing ...
Aug 01, 2011
Our northern neighbor, Canada. Asbestos has not been mined in the US since 2002. The US imports 99% of the asbestos it consumed from Canada. In fact the US consumed 1,040 metric tons in 2010 which was an increased ...
Sep 05, 2011
The documentary, directed by Ontario filmmaker Kathleen Mullen, is “a personal investigation into the continued use of asbestos” and details her father's tragic death due to exposure to asbestos from Canadian mining.
Dec 11, 2011
To this day there is no asbestos ban in effect in the US. The Canadian asbestos industry still exports asbestos fiber used in the US and other parts of the world. On Thursday, The Asbestos Disease Awareness Organization ...