Monday, May 19, 2014

Recalling the Recalled Judges | New Jersey Law Journal

New Jersey's courts face many challenges.  Too many judges is not one of them.  Over forty vacancies impact is moderated by the longstanding use of recalled retired judges, most beyond the constitutionally mandated retirement age of 70.  A dissenting judge in the Appellate Division has concluded that retired means retired, done, off the bench, for good.  At the state's storied Constitutional Convention of 1947 the drafters omitted a recall provision that had been in an earlier, rejected draft.  Judge Jonathan Harris conceded in dissent that the majority's interpretation of retired as less than absolute is appealing.  Nonetheless he concluded that the practice -enabled by legislation signed in 1974 by Gov. Brendan T. Byrne - is unconstitutional and that judgments entered by recalled judges cannot stand.

The Law Journal's Editorial Board backed the dissenter's view.  Since a dissent creates an appeal of right the Public Defender will find itself urging the Supreme Court to abandon a practice that many view as essential to keeping the wheels turning during a time when the stand-off between Gov. Chris Christie and the Democratic legislative majority shows no signs of abating.  The State Bar Assocation will doubtless be concerned about the impact that the loss of 80 recalled judges wouldl have on the system. - GWC  (disclosure: I am a member of the NJLJ Editorial Board)

Recalling the Recalled Judges | New Jersey Law Journal:

by the Editorial Board

In the areas of school funding and equal access to housing, just to name two, the New Jersey Supreme Court has not hesitated to direct the legislative and executive branches to comply with the state constitution, even at great expense and administrative burden to those branches. Now, the court must decide a case in which the judiciary itself might be significantly burdened.
In State v. Buckner, a divided Appellate Division panel affirmed the Supreme Court's ability to assign judges on recall status, notwithstanding that in virtually all cases those recalled judges have reached the mandatory retirement age of 70. The dissent in the case provides an appeal as of right to the Supreme Court.
We have long held the view, expressed repeatedly on this page, that the recalling of jurists over the age of 70 finds no basis in constitutional text. The text could not be clearer that "justices and judges shall be retired upon attaining the age of 70 years." In another section pertaining to the jurists who carried over from a prior system, the constitution directs that no justice or judge "shall hold his office" after age 70. As one legal scholar succinctly put it in a 2003 law review article, "once a judge or justice in New Jersey reaches the age of 70, he or she must cease performing judicial acts." The fact that there is a statute in place authorizing the recalling of retired judges does not diminish what we believe is a clear constitutional infirmity in that practice.
So we agree with the defendant in Buckner that the recalled judge who presided over and heard motions in respect of defendant's trial on robbery and assault charges should have been disqualified. But agreeing with the defendant does not mean that every recalled judge (there are currently over 70 such jurists in the system) must immediately exit the bench. We are acutely aware of the disruption to the judiciary that would result if the court were to eliminate the use of recall judges. But there are ways to ameliorate at least some of that disruption.

Read more:

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Friday, May 16, 2014

Mrs. Obama Cites View of Growing Segregation -

Mrs. Obama Cites View of Growing Segregation -

TOPEKA, Kan. — Sixty years after the Supreme Court outlawed “separate but equal” schools for blacks and whites, civil rights advocates say American schools are becoming increasingly segregated, while the first lady, Michelle Obama, lamented that “many young people are going to schools with kids who look just like them.”
“Today, by some measures, our schools are as segregated as they were back when Dr. King gave his final speech,” Mrs. Obama told 1,200 graduating high school seniors and their families here in the city that gave rise to the landmark Brown v. Board of Education case.

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Parents Involved and the Struggle for Historical Memory | ACS

Parents Involved and the Struggle for Historical Memory | ACS:

by Mark Tushnet, William Nelson Cromwell Professor of Law, Harvard Law School

*May 17 is the 60th Anniversary of the landmark Supreme Court opinion, Brown v. Board of Education. This post is part of an ACSblog symposium noting the landmark decision and exploring the ongoing inequalities in our society.
The issue before the Supreme Court in Parents Involved in Community Schools v. Seattle School Dist. No. 1 was whether it was constitutionally permissible for a school district to use race as a basis for assigning public school students to schools for the purposes of achieving a greater degree of racial integration than would otherwise have occurred under, for example, a program assigning children to the school nearest their homes. As Chief Justice Roberts wrote in an opinion joined by three of his colleagues, an important “debate” in the case was over “which side is more faithful to the heritage” ofBrown v. Board of Education. That debate is part of what historians have called the struggle for historical memory.
According to the Chief Justice, “the position of the plaintiffs in Brown was spelled out in their brief and could not have been clearer: ‘[T]he Fourteenth Amendment prevents states from according differential treatment to American children in the basis of their color or race.’” What, he asked, “do the racial classifications at issue here do, if not accord differential treatment on the basis of race?” And, he quoted Robert Carter, who in arguing the case for the NAACP, said, “no State has any authority … to use race as a factor in affording educational opportunities among its citizens.” Chief Justice Warren had written that a school board has to “determin[e] admission to the public schools on a nonracial basis.” What, Roberts again asked, “do the racial classifications do in these cases, if not determine admission to a public school on a racial basis?”
Justice Stephen Breyer called his dissent in PICS the opinion he has felt most deeply about. For him, “Brown held out a promise…. It was the promise of true racial equality – not as a matter of fine words on paper, but as a matter of everyday life in the Nation’s cities and schools.” Alluding to the Little Rock school crisis of 1957-58, he said, “attitudes towards race in this Nation have changed dramatically.” Parents in Seattle and Louisville “want their children to attend schools with children of different races.” They made a “modest request” that the Court “not … take from their hands the instruments they have used to rid their schools of racial segregation.” The nation had “not yet realized the promise of Brown,” and Roberts’s “position … would break that promise.” Breyer noted in his oral presentation of his dissent that the dissent was “twice as long as any I have written before,” and ended by quoting the dissent’s final line: “This is a decision that the Court and the Nation will come to regret.”

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New Oil Spill Safety Rules Make Pipeline Companies Liable For Costs / Canadian Press

New Oil Spill Safety Rules Make Pipeline Companies Liable For Costs:

The Canadian Press

"VANCOUVER - The Canadian government says pipeline companies will be liable for all costs and damages from a spill, regardless of fault or negligence under a new law.

Natural Resources Minister Greg Rickford said Wednesday pipeline operators will also have to have a minimum amount of cash available to pay cleanup costs and the National Energy board will be given the power to order reimbursement for those affected by a spill.

The law comes amid opposition in the province to two pipelines. Enbridge's Northern Gateway project would transport 525,000 barrels a day from Alberta to the B.C. coast. Kinder Morgan's Trans Mountain expansion would almost triple the current capacity of a pipeline from Alberta to Vancouver to 900,000.

Canada needs more pipeline infrastructure to export its growing oil sands production from Alberta."

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Saturday, May 10, 2014

Joe Conason: How Monica Lewinsky Deserves to Be Remembered - Truthdig

The unrecognized heroine of the Clinton impeachment scandal?  Mondica Lewinsky. - gwc

Joe Conason: How Monica Lewinsky Deserves to Be Remembered - Truthdig:

In the face of Linda Tripp’s perfidy and the bullying of Kenneth Starr’s prosecutors, who threatened her and her family with long prison sentences, Lewinsky stood fast. She asked to speak with a lawyer and with her mother. She wouldn’t wear a body wire into the Oval Office, as they demanded, to tape an incriminating conversation with the president. And she likewise refused to sign any statement that implicated Clinton in crimes of obstruction that he had not committed.

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Thursday, May 8, 2014

Bohai Bay Oil Spills: CNOOC’s Motion to Dismiss Survives Second Circuit Scrutiny 

In June 2011 there was a significant oil spill in the shallow coastal Bohai Bay near the Korean Peninsula. The platforms and drilling rigs are operated by a joint venture of the China National Offshore Oil Corp. (CNOOC) and Conoco Philips - China.(康菲中国).  Investigation of the facts was the subject of a study by China's State Oceanic Administration.  When CNOOC downplayed the spill pension fund plaintiffs brought a securities fraud action.  But they have been stymied because the Chinese agency's report was held insufficient to establish "scienter" - intent by CNOOC to mislead.  Another win for the defense based on the rigors of the so-called Private Securities Litigation Reform Act and its onersous pleading requirements.

Fishermen in China have protested the inadequacy of the settlement - and one group has filed suit in federal court in Texas - a story told HERE. - gwc

theRacetotheBottom - Home - Bohai Oil Spills: CNOOC’s Motion to Dismiss Survives Second Circuit Scrutiny : "In Sinay v. CNOOC Ltd., No. 13‒2240, 2014 WL 350055 (2d Cir. Feb. 3 2014), the Second Circuit affirmed the district court’s dismissal of a putative class action for failure to plead scienter with particularity.

A putative class alleged that CNOOC Ltd. (Defendant) made false and fraudulent statements to investors relating to: (i) the safety of an oilfield it owned and developed with another oil producer and (ii) two major oil spills off the northeastern coast of China. 

The class brought claims under Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b‒5 of the Exchange Act. Prior to the oil spills, Defendant lauded its commitment to safety in multiple press statements. After the spills, Defendant reassured investors that it and its partner had the spills under control. At the trial-court level, Defendant moved to dismiss both claims. The district court granted the motion to dismiss, finding that the class had not adequately pleaded scienter."

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Uruguay Releases Guidelines for Legal Marijuana Market - TalkLeft: The Politics Of Crime

Uruguay Releases Guidelines for Legal Marijuana Market - TalkLeft: The Politics Of Crime: "Uruguay is the first country to legalize the production, sale and consumption of marijuana. It released the new rules today. A copy in Spanish is here.

The government will control every facet -- including setting the price. Pot will initially cost around $1.00 per gram, in an effort to freeze out the black market. The government agency calling the shots is called the Institute for Regulation and Control.

Today we know that trying to eliminate marijuana has not been an effective measure and has only caused more problems. The marijuana market already exists and is controlled by drug trafficking. [More...]"

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Monday, May 5, 2014

Legal History Blog: Fishkin and Forbath on the Anti-Oligarchy Constitution

Legal History Blog: Fishkin and Forbath on the Anti-Oligarchy Constitution:

Joseph Fishkin and William E. Forbath, University of Texas at Austin School of Law, have posted The Anti-Oligarchy Constitution, which also appears in the Boston University Law Review94 (2014): 671-98 Here is the abstract:

America has awakened to the threat of oligarchy. While inequality has been growing for decades, the Great Recession has made clear its social and political consequences: a narrowing of economic opportunity, a shrinking middle class, and an increasingly entrenched wealthy elite. There remains broad agreement that it is important to avoid oligarchy and build a robust middle class. But we have lost sight of the idea that these are constitutional principles.*****
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Sixth Circuit Hears Argument On Blog Liability For Defamatory Comments Over Ex-Bengals Cheerleader | JONATHAN TURLEY

Sixth Circuit Hears Argument On Blog Liability For Defamatory Comments Over Ex-Bengals Cheerleader | JONATHAN TURLEY: "

There is an important case pending before the United States Court of Appeals for the Sixth Circuit on liability over Internet speech for blogs and websites. The court heard arguments in Jones v. Dirty World Entertainment, where gossip blog, The Dirty, is appealing the decision of U.S. District Judge William Bertelsman that the site is liable of defamatory statements by third parties and cannot claim immunity under the Communications Decency Act, 47 U.S.C. § 230. The site was sued by Sarah Jones, an ex-Bengals cheerleader and a former high school teacher in northern Kentucky, who was libeled on the site by commentators. "

***The key to the decision is the CDA. Section 230(c) of the Communications Decency Act of 1996 provides: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” The statute defines “information content provider” as “any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.” 47 U.S.C. § 230(e)(3).

Bertelsman rejected the argument that it barred recovery in the case. The district court drew a distinction between third party postings or comments that appear without solicitation or encouragement and this type of site that actively seeks such comments. The court noted a number of decisions limiting CDA immunity including a decision by Judge Easterbrook of the United States Court of Appeals for the Seventh Circuit, who wrote in Chicago Lawyers’ Comm. For Civil Rights Under Law, Inc. v. Craigslist, Inc., 519 F.3d 666, 670 (7th Cir. 2008), that the CDA does not provide “a grant of comprehensive immunity from civil liability for content provided by a third party.” Easterbrook ruled that Craigslist was entitled to protection but noted that “[n]othing in the service craigslist offers induces anyone to post any particular listing or express a preference for discrimination.” Id. at 671-72.

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