U.S. Regulators Declined Full Inquiry Into G.M. Ignition Flaws, Memo Shows - NYTimes.com

U.S. Regulators Declined Full Inquiry Into G.M. Ignition Flaws, Memo Shows - NYTimes.com: 

by Matthew L Wald

WASHINGTON — Federal safety regulators decided not to initiate a formal investigation of problems with the ignition switches of Chevrolet Cobalts and other cars even after an investigative group reported that it knew about 29 complaints, four fatal crashes and 14 field reports that showed the problem was preventing air bags from deploying, according to a memo released by House investigators on Sunday.

A House subcommittee will open hearings on Tuesday, looking into why government investigators never realized there was a generic problem with the ignition systems of the Cobalt and other vehicles that could switch off if the key was bumped, shutting the engine and disabling the air bags.

The findings about the complaints and crashes appeared in a PowerPoint presentation dated Nov. 17, 2007, found among the 6,000 pages of documents submitted by the National Highway Traffic Safety Administration in answer to a request by the House Energy and Commerce Committee.

But officials at the safety agency’s Office of Defects Investigation, to whom the presentation was given, told committee staff investigators that “the panel did not identify any discernible trend and decided not to pursue a more formal investigation.”

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A Lone Ranger of the 401(k)’s - NYTimes.com

Creative thinking by plaintiffs lawyers produces results. - gwc

A Lone Ranger of the 401(k)’s - NYTimes.com: 

by Gretchen Morgenson

On March 19, the Eighth Circuit Court of Appeals in St. Louis affirmed a lower-court ruling in one of the first 401(k) fee cases to go to trial. In that case, the court found that ABB Inc., a power and automation technology company, failed to monitor its plan’s internal costs and paid excessive fees by not negotiating for rebates from investment companies whose funds were offered in the plan. This, the court said, violated ABB’s fiduciary duties to the 401(k) participants.

The lower court awarded $13.4 million to the ABB plan participants in that part of the case.

The significance of this ruling extends far beyond ABB. It sends a powerful message to plan sponsors everywhere: If you think you’ve done your fiduciary duty simply by offering low-cost funds as investment options, think again.

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Dignity Is a Constitutional Principle - Bruce Ackerman - NYTimes.com

Dignity' is the demand of the subordinate and shunned everywhere.  It is the demand of striking workers, of, Black people in the civil rights movement, of women seeking equality, and of gay people.  Yet there are those in high places who disparage it.  Antonin Scalia spoke of "legal argle bargle" when gay rights were recognized in Windsor v. U.S..  His acolyte Kevin C.Walsh, now a law professor, recently disparaged Justice Kennedy's landmark opinions on gay rights "recognizable for "the glory and the annoyingness of their moral confidence and spiritual certainty".  Bruce Ackerman explains the core importance of the under-recognized dignity principle.  - gwc

Dignity Is a Constitutional Principle - NYTimes.com: 

by Prof. Bruce Ackerman



To be sure, the judges of the civil rights era also emphasized the link between institutionalized humiliation and the constitutional requirements of equal protection. Most famously, Brown v. Board of Education declared school segregation unconstitutional precisely because it stigmatized blacks, generating “a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.” Yet once we recognize that Congress and the president broadened and deepened the nation’s commitment to Brown’s anti-humiliation principle, we can gain a larger perspective on contemporary civil rights struggles.



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New York Schools: The Roar of the Charters by Diane Ravitch | NYRblog | The New York Review of Books

Charter schools are segregated schools, says Diane Ravitch, who details how Bill DeBlasio gave up the fight against the right and the billionaire backers of the phony charter schools leader Eva Moskowitz. - GWC



New York Schools: The Roar of the Charters by Diane Ravitch | NYRblog | The New York Review of Books: by Diane Ravitch

Consider the court battle initiated by Moskowitz that played out in the midst of the confrontation with the mayor: a judge in New York’s State Supreme Court ruled, as Moskowitz hoped, that the State Comptroller has no power to audit her schools, because they are “not a unit of the state.” Put another way, her schools are not public schools. And, as the public begins to understand what that means, that lesson may ultimately be the undoing of this stealth effort to transfer public funds to support a small number of privately-managed schools, amply endowed by billionaires and foundations, that refuse to pay rent and are devoted to competing with, not helping, the general school population.

What will it mean for New York City to have two school systems, both supported with public money, with one free to choose and remove its students and the other required to accept all students? A recent study found that New York State has the most segregated schools in the nation, and that the charters are even more segregated than the public schools. In 2014, the year that we remember the sixtieth anniversary of Brown v. Board of Education, it is passing strange to find that New York City—and school districts across the nation—are embarked on the re-creation of a dual school system.

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Supreme Court Oral Argument Shows How Religious Freedom Claims Have Become Ideologically Charged | Michael C. Dorf | Verdict | Legal Analysis and Commentary from Justia

Liberals and conservatives have switched sides on the religious freedom debate, Cornell law prof Michael Dorf argues.  Liberals used to argue for the primacy of conscience (think loyalty oaths), and conservatives the opposite (national security trumps all).  But now liberals are pro-equality and conservatives pro-freedom.  More evidence that experience, not logic is the life of the law? - gwc

Supreme Court Oral Argument Shows How Religious Freedom Claims Have Become Ideologically Charged | Michael C. Dorf | Verdict | Legal Analysis and Commentary from Justia:

Is it surprising that Hobby Lobby looks like it will cleave the Court along ideological lines? In a sense, no. After all, this was the third consecutive Term in which President Obama’s Solicitor General, Donald Verrilli, squared off against former President Bush’s Solicitor General, now private lawyer, Paul Clement. Two years ago they battled over the constitutionality of the ACA’s individual mandate. Last year they locked horns over the Defense of Marriage Act. And so Hobby Lobby appears to be a natural conclusion to the trilogy.
Yet the very familiarity of the ideological divide in Hobby Lobby should be perplexing, at least initially. After all, not that long ago, claims like the one made by the current plaintiffs were less ideologically charged. Indeed, to the extent that there was any discernible ideological pattern, it was the opposite.

- See more at: http://verdict.justia.com/2014/03/26/supreme-court-oral-argument-shows-religious-freedom-claims-become-ideologically-charged#sthash.ZPYzFhR6.dpuf

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Labor Board Rules Northwestern Players Can Unionize - AFL-CIO

Kain Colter, right, a former Northwestern quarterback who testified in February before the National Labor Relations Board, and Ramogi Huma, the president of the College Athletes Players Association. CreditPaul Beaty/Associated Press

The plantation that is major college football is a national disgrace.  As Dr. Andre Perry notes in the Hechinger Report "Black men among the top 25 BCS schools represent 3 percent of their student bodies but 60 percent of the football players. "  They are celebrated for their labor but slighted as students:

• Across four cohorts, 50.2% of black male student-athletes graduated within six years, compared to 66.9% of student/athletes overall, 72.8% of undergraduate students overall, and 55.5% of black undergraduate men overall.
  96.1% of these NCAA Division I colleges and universities graduated black male student-athletes at rates lower than student-athletes overall.
  97.4% of these institutions graduated black male student-athletes at rates lower than undergraduate students overall

Not only do colleges fail to educate those from whom they profit, we know now that college athletes - particularly in football - are at great risk of traumatic brain injury.  This Regional NLRB Director's ruling opens a door to protection of these athletes who serve as an uncompensated farm system for the National Football League.  Among the most important elements of recognizing them as workers is to provide workers compensation insurance and disability benefits.  The issues are discussed here: 

Board Rules Northwestern Players Can Unionize - AFL-CIO:

And reported by Ben Strauss at the Times here

CHICAGO — In a decision that has the potential to fundamentally reshape the N.C.A.A. and college athletics, the National Labor Relations Board regional director Peter Ohr sided with a group of Northwestern football players Wednesday, calling them employees who have the right to collectively bargain.

In a 24-page decision, Ohr wrote that Northwestern is an employer and all of its scholarship football players are eligible to unionize.

In January, Northwestern players filed a petition to the regional office of the N.L.R.B. seeking representation by the newly formed College Athletes Players Association. Last month, lawyers for the labor organization and Northwestern argued the question of whether the players were employee or just students in a hearing that spanned three weeks.

A Northwestern spokesman, Alan K. Cubbage, said in a statement that the university was “disappointed” in the decision and that it would appeal it to the full N.L.R.B. in Washington.

Continue reading the main story

RELATED COVERAGE

• 
  
  

  Test in Northwestern Case: Is College Football a Job?FEB. 22, 2014

• 
  
  

  As Northwestern Players Pursue Unionization, a Voice in the Wilderness Gains a ChorusFEB. 8, 2014

• 
  
  

  In a First, Northwestern Players Seek UnionizationJAN. 28, 2014

• 
  
  

  Northwestern Quarterback Makes His Case for Players’ UnionFEB. 18, 2014

“The players won on every question,” said Tim Waters, the political director for the United Steelworkers, which has worked for more than a decade on rights for college athletes. “It’s a huge victory.”

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Book Review - A Sea in Flames - By Carl Safina - NYTimes.com

Book Review - A Sea in Flames - By Carl Safina - NYTimes.com:

During the panic period, Carl Safina, a renowned marine ecologist, spent several weeks near, on and above the gulf, inspecting the harm, talking to locals and wondering about the government and corporate response. The result is “A Sea in Flames,” an impressive book that provides a vivid account of how the spill happened, coupled with a report on the anxiety experienced by those who had no way of knowing how long the spill would last or how bad it would get. The book should be read in conjunction with“Deep Water,” the recent presidential commission report on the spill — a work supervised by William Reilly, former administrator of the Environmental Protection Agency and one of the country’s most credible environmentalists. Combined, the commission report and “A Sea in Flames” offer a revealing, thoughtful history of a moment when human manipulation of nature malfunctioned spectacularly.



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Smoking Proves Hard to Shake Among the Poor - NYTimes.com

Clay County, Kentucky has a smoking rate of 36.7%

Philip Morris perfected the technique of increasing nicotine release by adding ammonia, helping to secure Marlboro's dominant market position. Do they have a special responsibility to pepe in areas like rural Kentucky, a state where the tobacco industry figures large?  From a comparative fault point of view should working class people there be judged differently from college grads? - GWC

Smoking Proves Hard to Shake Among the Poor - NYTimes.com: 

by Sabrina Tavernese and Robert Gebeloff

Cigarettes were high-society symbols of elegance and class, puffed by doctors and movie stars. By the 1960s, smoking had exploded, helped by the distribution of cigarettes to soldiers in World War II. Half of all men and a third of women smoked.

But as evidence of smoking’s deadly consequences has accumulated, the broad patterns of use by class have shifted: Smoking, the leading cause of preventable death in the country, is now increasingly a habit of the poor and the working class.

While previous data established that pattern, a new analysis of federal smoking data released on Monday shows that the disparity is increasing. The national smoking rate has declined steadily, but there is a deep geographic divide. In the affluent suburbs of Washington, only about one in 10 people smoke, according to the analysis, by the Institute for Health Metrics and Evaluation. But in impoverished places like this — Clay County, in eastern Kentucky — nearly four in 10 do.

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Selling a Poison by the Barrel: Liquid Nicotine for E-Cigarettes - NYTimes.com

Selling a Poison by the Barrel: Liquid Nicotine for E-Cigarettes - NYTimes.com: 

by Matt Richtel

A dangerous new form of a powerful stimulant is hitting markets nationwide, for sale by the vial, the gallon and even the barrel.

The drug is nicotine, in its potent, liquid form — extracted from tobacco and tinctured with a cocktail of flavorings, colorings and assorted chemicals to feed the fast-growing electronic cigarette industry.

These “e-liquids,” the key ingredients in e-cigarettes, are powerful neurotoxins. Tiny amounts, whether ingested or absorbed through the skin, can cause vomiting and seizures and even be lethal. A teaspoon of even highly diluted e-liquid can kill a small child.

But, like e-cigarettes, e-liquids are not regulated by federal authorities. They are mixed on factory floors and in the back rooms of shops, and sold legally in stores and online in small bottles that are kept casually around the house for regular refilling of e-cigarettes.

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Is Paul Ryan racist?

Paul Ryan thinks his brand of tough luck conservatism is very Christian, despite his affinity for the radical individualism of Ayn Rand.  He seeks after all to save people from the government tyranny of social welfare programs - which he asserts saps people's strength.  This is a race neutral statement on its face.  As applied.... And as explained it gets worse.  Ryan explained - as have many before him - that there is  "an inner city culture" in which men have lost their interest in work.  

Personally I find this sort of assertion to be a straight line from unreconstructed versions of blaming the effect of racism on its victims.  Ryan's now-famous statement decried “this tailspin of culture, in our inner cities in particular, of men not working and just generations of men not even thinking about working or learning the value and the culture of work.”  As Berkeley law professor Ian Lopez explained on the Bill Moyers show this is a "dog whistle" - a signal to antagonists of black people that he is with them, but can't say it out loud.  Unfortunately the racial gaps in economics and in academic performance will never be addressed by such coded criticisms.

Ryan knows that he is supposed to be a serious thinker so he justifies his position by reference to scholars.  Unfortunately for Ryan that happens to be Charles Murray - the author of The Bell Curve which asserts not only that intelligence can be measured by IQ tests, but that a genetic component has been shown. In a classic non-denial denial Murray has now announced that in his book he was very careful to explain:

If the reader is now convinced that either the genetic or environmental explanation has won out to the exclusion of the other, we have not done a sufficiently good job of presenting one side or the other. It seems highly likely to us that both genes and the environment have something to do with racial differences. What might the mix be? We are resolutely agnostic on that issue; as far as we can determine, the evidence does not justify an estimate.

So Ryan's source Murray is "agnostic" on how inferior black people are - it's a product of both the  environment  and genetics.  And there certainly seems to be no place in his explanation for racist oppression.

NJ Supreme Court Stays App. Div Housing Order

The New Jersey Supreme Court granted a reprieve to Council on Affordable Housing. It stayed an Appellate Division order that the recalcitrant agency comply with last year's Supreme Court order.   COAH is a state entity "in but not of" the executive branch charged with accomplishing the "Mt. Laurel" mandate - to allow the construction of affordable housing in every municipality.  Chris Christie first tried to destroy COAH, then adapt to his ends - to be an obstacle to the objectives contained in its name.

Bruce Greenberg observes that Justice Barry Albin's dissent is correct but it is perfectly reasonable that the court step back from practically taking command of an administrative agency. - GWC

- Appellate Law NJ Blog:

By Bruce Greenberg

Today witnessed the latest event in the ongoing saga regarding third round rules for low and moderate-income housing to be adopted by the Council on Affordable Housing (“COAH”).  As discussed here, on March 7, the Appellate Division issued an Order directing COAH to meet and adopt third round rules on an expedited basis.  The panel did so even though COAH had previously filed a motion before the Supreme Court on February 26, the then-existing deadline set by the Court for adoption of the third round rules, seeking to extend until May COAH’s time to formally propose and thereafter publish in the June 2, 2014 New Jersey Register a set of third round rules.  The panel rejected COAH’s argument that COAH’s pending motion in the Supreme Court deprived the Appellate Division of jurisdiction to enforce its own prior Order. 

When the Appellate Division would not stay its March 7 ruling, COAH moved before the Supreme Court, which granted a stay of that March 7 Appellate Division decision.  That stay Order is discussed here.  The Court did not then rule, however, on COAH’s motion to extend its time to propose third round rules.

Today, the Court entered an Order that granted COAH”s extension request, vacated the Appellate Division’s March 7 Order, and retained jurisdiction so that any future applications to enforce the judgment of the Supreme Court last year regarding the adoption of third round rules are to be filed only with that Court.

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Halliburton Co. v. Erica P. John Fund, Inc.: This isn’t Monopoly money | Alliance for Justice

Halliburton Co. v. Erica P. John Fund, Inc.: This isn’t Monopoly money | Alliance for Justice:

By Michelle D. Schwartz
AFJ Director of Justice Programs

The AFJ report discussed in this post is available here.

>>Analyisis of oral arguments using excerpts from Court audio is available here. 

Yesterday morning, I was privileged to attend Supreme Court oral arguments in Halliburton Co. v. Erica P. John Fund, Inc.

This is the case where Halliburton is asking the Supreme Court to overturn a 26-year old precedent in order to make it infinitely more difficult for shareholders to stand up for their rights  in court against corporations that have defrauded them out of their hard-earned money.  Halliburton itself is accused by plaintiffs, led by an organization supporting the charitable work of the Archdiocese of Milwaukee, of making material misrepresentations to its investors on such issues as its asbestos liability, causing losses to those investors.

As Alliance for Justice noted in our new report, “Halliburton at the Supreme Court:  What’s at Stake in Halliburton, Inc. v. Erica P. John Fund,” if the Supreme Court rules the way Halliburton is asking it to, “In many instances, it would essentially be giving businesses like Halliburton a ‘get out of jail free’ card to defraud their own shareholders without consequence.”

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No Private Business Exception for Birth Control `Mandate' //NJ Law Journal Editorial

OTHERWISE: No Private Business Exception for Birth Control `Mandate' //NJ Law Journal Editorial:

The United States Supreme Court will hear argument later this month in a challenge to the misnamed 'birth control mandate'.  Two private businesses owned by religious objectors assert an exemption from a general law: the `Obamacare' requirement of free birth control to all women under health insurance plans. - GWC
Limits of Free Exercise
by the Editorial Board, New Jersey Law Journal
(c) American Lawyer Media  March 14, 2014

The Affordable Care Act has become a symbol. Its broad reforms of our health insurance system excite loyalty and loathing. It barely survived its first constitutional challenge when, in NFIB v. Sebelius, a bare majority of the Supreme Court upheld the mandate to purchase health insurance in a federally regulated private market. The ACA's requirement that certain preventive services be included "without cost sharing" compels health plans to provide FDA-approved methods of contraception. This has incited determined opposition by some who assert religious objections to some or all artificial birth control methods. The Supreme Court has agreed to hear two such challenges—one from the 10th Circuit (in favor of the challengers) and the other from the Third Circuit (against)..........

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Fr. Jack Alexander, S.J.

Fr.. Jack Alexander, S.J. moderator of the Brooklyn Prep Alumni Association and beloved former teacher has died, 90 years of age, at Murray Weigel Hall, Fordham, Bronx, NY.  He is an exemplar of that rare breed of men who foresaking family for celibacy dedicated his life to the service of others - particularly boys like me at Jesuit high schools who will always be grateful for the respect we were shown and the example he set.- GWC

303 deaths in GM air bag cases

303 deaths!  However much tort deters, it doesn't deter enough. Another regulatory failure too.  Obviously we are crushing businesses with the burden of government regulations .  The only hero - the Center for Auto Safety which filed this report  on airbag non-deployment.  (Mostly Republican) legislators and commentators talk about getting government off our backs.  What do they have to say about this? Why do they believe what they say? Is it just ideological blinders? - GWC

303 died in airbag failures, safety group reports - NY Times
by Danielle Ivory and Hillary Stout

As lawmakers press General Motors and regulators over their decade-long failure to correct a defective ignition switch, a new review of federal crash data shows that 303 people died after the air bags failed to deploy on two of the models that were recalled last month.

The review of the air bag failures, by the Friedman Research Corporation, adds to the mounting reports of problems that went unheeded before General Motors announced last month that it was recalling more than 1.6 million cars worldwide because of the defective switch. G.M. has linked 12 deaths to the defective switch in the two models analyzed, the 2003-5 Chevrolet Cobalts and 2003-7 Saturn Ions, as well as four other models.

The analysis by Friedman Research, a company that analyzes vehicle safety data, looked at cases in which the air bags failed to deploy, but did not attempt to evaluate what caused the crashes.

Continue reading the main story

RELATED COVERAGE

• G.M. Reveals It Was Told of Ignition Defect in ’01MARCH 12, 2014

The Center for Auto Safety, a private watchdog group in Washington, commissioned the study, and, in a letter to the National Highway Traffic Safety Administration, criticized the agency for not detecting the air bag failures, as well as the defective ignition switch.

Poverty, poor health highest in states that had racial segregation

These 9 Maps Should Absolutely Outrage Southerners:



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NJ Court Directs Council on Affordable Housing to Prepare Third Round Rules by March 26, 2014 « Blog | Fair Share Housing Center

A long-standing structural injunction struggle. - gwc

NJ Court Directs Council on Affordable Housing to Prepare Third Round Rules by March 26, 2014 « Blog | Fair Share Housing Center:

In a decision issued this afternoon, the Appellate Division granted Fair Share Housing Center’s motion to enforce a court order requiring the Council on Affordable Housing (COAH) to adopt rules within five months. The court found that the state unlawfully disregarded that order. The agency failed to even meet regarding the court order because a Christie Administration cabinet member, Department of Community Affairs Commissioner and COAH Chairman Richard Constable, refused to schedule a meeting.

The court’s five-page order, which is available here, directs the agency to take multiple steps that will result in rules being proposed by the end of March 2014 and adopted in May 2014. The court notes that it “remain[s] hopeful … that reasonable minds will prevail, and that the members of the COAH Board will see that this course of intransigence serves only to needlessly undermine the public’s confidence in the effectiveness of public institutions.” It additionally notes that “If these measures prove to be ineffective, we may have no other choice but to declare that event to be COAH’s third and final strike.”

“COAH’s and the Christie Administration’s failure to obey the law is startling. The court’s decision is an appropriate response. This will help get more homes in New Jersey that working families and people with disabilities need,” said Kevin D. Walsh, the attorney with Fair Share Housing Center who argued the motion before the Appellate Division. “The governor’s bullying and ideological campaign to undo years of civil rights laws will fail because people need homes to live in and raise their families. The rule of law will prevail.”

Further information regarding the motion filed by FSHC is available here.

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Legal Ethics Forum: "First female law firm opened in Jeddah"

Bayan Al-Zahran at the inauguration of her law firm

Legal Ethics Forum: "First female law firm opened in Jeddah": "In what is being seen as a major boost for Saudi women seeking legal advice and help, Bayan Mahmoud Al-Zahran, the first Saudi woman lawyer who was issued license to practice law in the Kingdom, launched the first female law firm for the benefit of Saudi women on Wednesday.


Bayan Al-Zahran became the first Saudi woman lawyer when she appeared at the General Court in Jeddah for the first time in November last year to defend a client. She had been working for years as a legal consultant and had represented dozens of people in criminal and civil cases besides family disputes."

Story at Arab news

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Geistfeld on the Relationship between tort law and statutes

TortsProf Blog:

Mark Geistfeld (NYU) has posted to SSRN Tort Law in the Age of Statutes.  The abstract provides:

The common law of torts is widely considered to be in conflict with the modern regulatory state. Tort law interacts with regulations and their enabling statutes in different ways that are fully addressed by the doctrines of negligence per se, the regulatory compliance defense, and statutory preemption. According to a substantial body of scholarship, these three statutorily related doctrines are a muddle, lacking any coherent theory that adequately accounts for the competing institutional concerns of the federal regulatory and state tort systems. The problem resides in a mistaken focus on statutory purpose. 

Due to the supremacy of legislative law, a statutory purpose to modify tort law would seem to fully determine the relation between the common law of torts and the regulatory state. This conclusion is mistaken, however, explaining why there has been so much confusion and controversy about the matter. Systematic analysis across the doctrines of negligence per se, the regulatory compliance defense, and implied statutory preemption shows that they are instead unified by a single underlying principle: When a statute or administrative regulation is based on a policy decision that is relevant to the resolution of a tort claim, courts will defer to the non-binding legislative policy determination as a matter of common-law discretion. This immanent principle of common-law deference gives much-needed structure to the three statutorily related doctrines, filling the analytic gap created by the overly narrow inquiry into statutory purpose. The legislative intent to modify tort law certainly matters, but the principle of deference provides the primary means by which courts integrate health and safety legislation into the common law of torts, eliminating the purported conflict between tort law and the modern regulatory state.

--CJR

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New York Changing Its Contingency Fee Formula – New York Personal Injury Law Blog

OTHERWISE: New York Changing Its Contingency Fee Formula – New York Personal Injury Law Blog:





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KS Court School Funding Ruling Issued - Gavel Grab

The Kansas Supreme Court

Sixty years after the U.S. Supreme Court voided the state's segregated public school laws, the state's Supreme Court in Gannon v. Kansas has unanimously rejected the Legislature's spending education reductions, saying that it creates "wealth-based"  inequities which violate the State Constitution's promise of an "adequate" system of public education:

"As for the capital outlay funding claims, we hold the panel correctly ruled that the State created unconstitutional, wealth-based disparities by withholding all capital outlay state aid payments to which certain school districts were otherwise entitled under K.S.A. 2012 Supp. 72-8814(c). We additionally hold the panel correctly refused to order payment of capital outlay state aid to which districts were otherwise entitled for fiscal year 2010. We further hold that the panel correctly ruled that the State created unconstitutional, wealth-based disparities by prorating the supplemental general state aid payments to which certain districts were entitled under K.S.A. 2012 Supp. 72-6434 for their local option budgets." 

Although the court remanded in part - saying that adequacy is not simply a question of funding-  it explicitly adopted the a definition of adequacy borrowed from the Kentucky Supreme Court in Rose v. Council for Better Education, Inc., 790 S.W.2d 186 (Ky 1989):

"[A]n efficient system of education must have as its goal to provide each and every child with at least the seven following capacities: (i) sufficient oral and written communication skills to enable students to function in a complex and rapidly changing civilization; (ii) sufficient knowledge of economic, social, and political systems to enable the student to make informed choices; (iii) sufficient understanding of governmental processes to enable the student to understand the issues that affect his or her community, state, and nation; (iv) sufficient self-knowledge and knowledge of his or her mental and physical wellness; (v) sufficient grounding in the arts to enable each student to appreciate his or her cultural and historical heritage; (vi) sufficient training or preparation for advanced training in either academic or vocational fields so as to enable each child to choose and
pursue life work intelligently; and (vii) sufficient levels of academic or vocational skills to enable public school students to compete favorably with their Counterparts in surrounding states, in academics or in the job market." 790 S.W.2d at 212.

- GWC

Gavel Grab » Report: KS Court Ruling Issued, Constitutional Shutdown Avoided:

by Peter Hardin

In a long-awaited ruling, the Kansas Supreme Court found unconstitutional on Friday the state’s current public education funding levels. It sent the case back to a lower court for further review.

The Associated Press summed up the high court’s reasoning this way: “[T]he court said Kansas’ poor school districts were harmed when the state made the decision to cut certain payments when tax revenues declined during the Great Recession.”

In its unanimous opinion, the Supreme Court instructed the trial court to ensure that school funding was equitable in districts across the state. It asked the court to determine “promptly” an adequate level of funding, and established a deadline of July 1 for lawmakers to replenish two funds that are intended to help poorer school districts, through support for their capital improvements and general operations.

The Supreme Court did not determine whether Kansas schools were adequately funded. Instead, it ruled the lower court applied the wrong standard of review, and sent that portion of the case back down for reexamination.

- See more at: http://www.gavelgrab.org/?p=69707#sthash.TDQkw2Xr.dpuf

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Justices May Limit Securities Fraud Suits - NYTimes.com

Plaintiffs lawyer David Boies

At oral argument today in Halliburton v. Erica P. John Fund Associate Justice Antonin Scalia characteristically took the most hostile position toward plaintiffs - here investors alleging fraud.  Chief Justice Roberts - whose pro-business orientation is undoubted - nonetheless was looking for a middle way.  Of course in this environment a middle way usually means making things harder for plaintiffs.  He was clearly interested in the friend of the court brief of two law professors - Adam Pritchard and Todd Henderson.  They support " demands that a putative class show the presence of a true fraud on the market."  Of course - but when?

The two profs propose that an "event study" be presented before class certification - to show price impact.  Such a showing would then entitle plaintiffs to a presumption of reliance. Citing Georgetown law professor Donald Langevoort's work, they acknowledge that "while it may be more difficult in such instances to show price distortion as a result of a particular misstatement, this increased difficulty should not prevent the adoption of a market-impact inquiry in class actions."  Roberts liked the idea of raising the bar, and the lawyer for the United States actually suggested it would be good for plaintiffs.  David Boies - plaintiffs' lawyer - emphasized the complexity of "event studies",

I don't know how this works out but it seems to me that the "middle way" would be very expensive. I see no good reason to require such a showing before class certification - because such studies are relevant to loss, not to the appropriateness of a class-wide remedy.  Event studies - complex analyses of the market impact of a reckless misrepresentation and its disclosure - are inevitably the subject of a Daubert attack - asserting the conclusion to be methodologically deficient.  The so-called "middle way" seems to me to be another swing at the pinata and an invitation for judges to engage in the sort of evidentiary weighing that have made Daubert motions dangerous tools when the judge is ideologically unfriendly (as most Republican judges now are).  - GWC

Justices May Limit Securities Fraud Suits - NYTimes.com: 

by Adam Liptak

WASHINGTON — The Supreme Court on Wednesday seemed ready to impose new limits on securities fraud suits that would make it harder for investors to band together to pursue claims that they were misled when they bought or sold securities. But the justices did not seem inclined to issue a ruling that would put an end to most such suits.
The new limits would be in keeping with earlier decisions from the court led by Chief Justice John G. Roberts Jr., which has made it more difficult for workers and consumers to pursue class actions. The decision in the case argued Wednesday, expected by June, seems likely to do something similar in cases brought by investors.
Several justices suggested that this phenomenon could be partly addressed through a proposal in a supporting brief filed by two law professors, which argued that plaintiffs should be required to show at an early stage “whether the alleged fraud affected market price.”
Justice Anthony M. Kennedy seemed particularly taken with the brief, referring to it several times. “I call it the midway position,” he said.
Aaron M. Streett, a lawyer for the Halliburton Company who had argued for broader limits, said he welcomed that approach as a fallback position. But David Boies, a lawyer for the plaintiffs, resisted it.
“That’s very complicated,” Mr. Boies said. “It takes a lot of time. It’s very expensive. It’s a lot of expert testimony.”
The plaintiffs contend that Halliburton made false statements on three topics that were intended to inflate its stock price: its financial exposure to asbestos claims, prospective earnings from its engineering and construction business and expected benefits of a merger.
Mr. Boies said the difficulty of making the showing suggested by Justice Kennedy would vary depending on the statement, because it can be hard to untangle the impact of a misstatement from other factors that affect stock prices.
Perhaps surprisingly, a Justice Department lawyer, arguing in support of the plaintiffs, seemed open to the compromise position when Justice Kennedy asked him for his view “of the consequences if we adopt the law professors’ view?”
“If anything,” the lawyer, Malcolm L. Stewart, said, “that would be a net gain to plaintiffs, because plaintiffs already have to prove price impact at the end of the day.”
As that answer suggested, the likely outcome in the case will be to erect a new but often surmountable hurdle in securities fraud cases. Most observers said such a result would be a minor victory for corporate defendants, allowing them to defeat some securities fraud claims at the outset, but a tolerable burden for class-action plaintiffs’ lawyers.

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Argument preview: Justices to reconsider landmark securities class-action decision : SCOTUSblog

Argument preview: Justices to reconsider landmark securities class-action decision : SCOTUSblog:

Argument preview: Justices to reconsider landmark securities class-action decision

by Ronald Mann

The lone argument on Wednesday, Halliburton Co. v. Erica P. John Fund, presents the kind of question the Justices don’t often consider: “Whether the Court should overrule or substantially limit the holding of Basic Inc. v. Levinson, 485 U.S. 224 (1988).” But the Justices granted the petition to decide that question, and so the focus of argument on Wednesday will be an unusual one: not whether the Court’s existing precedent suggest a decision one way or the other, but whether the Court should jettison the existing precedent entirely.

The case involves the so-called “fraud-on-the-market” theory of liability in a class action under SEC Rule 10b-5.  Because the private right of action under Rule 10b-5 (at least traditionally) has been understood to require reliance, it is difficult to bring a class action based on public misrepresentations about a stock. Among other things, conventional methods of proof might require proof that each of the plaintiffs that purchased the stock was aware of the misrepresentation. Such a standard would make a class action particularly difficult, because the proof in such a regime would not involve common questions of fact or law, but rather would proceed individual by individual.

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BP Challenge to settlement terms rejected by Appeals Court

The U.S. Court of Appeals for the Fifth Circuit has rejected BP's challenge in In Re Deepwater Horizon/Lake Eugenie Land & Development, et al. v, BP Exploration,No. 13-30315 ,  issued March 3, 2014 - GWC

Though a petition for en banc hearing, and cert petition to the Suprme Court are doubtless in the offing this is probably the end of the line for BP's challenge to the deal they made.  
Judge Edith Brown Clement dissents - citing Garza, and concluding that "we are left with the majority’s holding that the Claims Administrator does not need to perform the “gatekeeping function” of ensuring that claims are not paid that are not plausibly traceable to the spill. Claimants 
whose losses had absolutely nothing to do with Deepwater Horizon or BP’s conduct will recover as a result of this ruling.".
I actually thought they had a good argument - embraced by Judge Garza's dissent two months ago - that evidence of causation was needed to support the judgment.  But on reflection I  have concluded that a claim with a colorable basis was sufficient to support a judgment enforcing a class action settlement.  The reason is that this is in the end a matter of contractual interpretation - the settlement contract - and the role of the FRCP 23 court is thereby limited.  Finally there is the public policy issue: thousands of payments have been held up by the court's injunction.  Now that the panel has lifted the stay of payments by administrator Patrick Juneau, the genie will not readily go back in the bottle.
 The opinion begins below.   Times commentary HERE.  - GWC


Leslie H. Southwick, Circuit Judge 

This appeal concerns issues arising under a Settlement Agreement approved by the district court in December 2012. Relevant to us today is that the settlement provided a mechanism for presenting and processing claims for business losses caused by the April 2010 Deepwater Horizon disaster in the
Gulf of Mexico. The district court made two rulings as directed by our October 2013 remand. One concerned an accounting question, which was resolved in a sufficiently satisfactory manner as not to be appealed by any party. The other ruling was that the Settlement Agreement did not require those submitting claims for certain business losses to provide evidence of causation. BP Exploration and Production, Inc. appeals that ruling and also argues that an injunction is required to stop payments on such claims. We AFFIRM. 

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