Tuesday, January 27, 2015

The Supreme Court Meets the Real World - Room for Debate - NYTimes.com

OTHERWISE: The Supreme Court Meets the Real World - Room for Debate - NYTimes.com:

Akhil Reed Amar (Yale), Melissa Murray (UCBerkeley, and Ilya Shapiro (CatoInstitute) debate the issues.

The Supreme Court Meets the Real World - Room for Debate - NYTimes.com

The justices will know that ruling against the Affordable Care Act would negate heath insurance for millions of people, and even if they reject constitutional protection for same-sex marriage thousands of such marriages have already occurred.
Should real-world effects influence the thinking of Supreme Court justices in reaching decisions?

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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

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? - NYTimes.com

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? - NYTimes.com

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 atrrothstein@epi.org and steve.menendian@gmail.com.

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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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William Howard Taft on Voting Rights - Concurring Opinions

William Howard Taft was the 27th President and 10th Chief Justice of the United States.  This excerpt from his 1909 inaugural address conveys the patronizing racial attitudes of the conservative Ohio Republican - whose party's views were generally better than those of Democrats.  The "progressive" Democrat who succeeded Taft - Woodrow Wilson - segregated the United States armed forces.  - gwc

William Howard Taft on Voting Rights - Concurring Opinions

BY GERARD MAGLIOCCA · January 10, 2015

Periodically I like to do basic research in the hope that this generate new ideas and that I’ll learn something. In addition to reading all of the party platforms (still working on that), I decided to read all of the presidential inaugural addresses. One of the most interesting passages I’ve come across so far was in President Taft’s 1909 Inaugural. This gives a clear (though unsettling) account of how people viewed race relations and suffrage at the time.

The consideration of this question can not, however, be complete and full without reference to the negro race, its progress and its present condition. The thirteenth amendment secured them freedom; the fourteenth amendment due process of law, protection of property, and the pursuit of happiness; and the fifteenth amendment attempted to secure the negro against any deprivation of the privilege to vote because he was a negro. The thirteenth and fourteenth amendments have been generally enforced and have secured the objects for which they are intended. While the fifteenth amendment has not been generally observed in the past, it ought to be observed, and the tendency of Southern legislation today is toward the enactment of electoral qualifications which shall square with that amendment. Of course, the mere adoption of a constitutional law is only one step in the right direction. It must be fairly and justly enforced as well. In time both will come. Hence it is clear to all that the domination of an ignorant, irresponsible element can be prevented by constitutional laws which shall exclude from voting both negroes and whites not having education or other qualifications thought to be necessary for a proper electorate. The danger of the control of an ignorant electorate has therefore passed. With this change, the interest which many of the Southern white citizens take in the welfare of the negroes has increased. The colored men must base their hope on the results of their own industry, self-restraint, thrift, and business success, as well as upon the aid and comfort and sympathy which they may receive from their white neighbors of the South.

There was a time when Northerners who sympathized with the negro in his necessary struggle for better conditions sought to give him the suffrage as a protection to enforce its exercise against the prevailing sentiment of the South. The movement proved to be a failure. What remains is the fifteenth amendment to the Constitution and the right to have statutes of States specifying qualifications for electors subjected to the test of compliance with that amendment. This is a great protection to the negro. It never will be repealed, and it never ought to be repealed. If it had not passed, it might be difficult now to adopt it; but with it in our fundamental law, the policy of Southern legislation must and will tend to obey it, and so long as the statutes of the States meet the test of this amendment and are not otherwise in conflict with the Constitution and laws of the United States, it is not the disposition or within the province of the Federal Government to interfere with the regulation by Southern States of their domestic affairs. There is in the South a stronger feeling than ever among the intelligent well-to-do, and influential element in favor of the industrial education of the negro and the encouragement of the race to make themselves useful members of the community. The progress which the negro has made in the last fifty years, from slavery, when its statistics are reviewed, is marvelous, and it furnishes every reason to hope that in the next twenty-five years a still greater improvement in his condition as a productive member of society, on the farm, and in the shop, and in other occupations may come.

The negroes are now Americans. Their ancestors came here years ago against their will, and this is their only country and their only flag. They have shown themselves anxious to live for it and to die for it. Encountering the race feeling against them, subjected at times to cruel injustice growing out of it, they may well have our profound sympathy and aid in the struggle they are making. We are charged with the sacred duty of making their path as smooth and easy as we can. Any recognition of their distinguished men, any appointment to office from among their number, is properly taken as an encouragement and an appreciation of their progress, and this just policy should be pursued when suitable occasion offers.

But it may well admit of doubt whether, in the case of any race, an appointment of one of their number to a local office in a community in which the race feeling is so widespread and acute as to interfere with the ease and facility with which the local government business can be done by the appointee is of sufficient benefit by way of encouragement to the race to outweigh the recurrence and increase of race feeling which such an appointment is likely to engender. Therefore the Executive, in recognizing the negro race by appointments, must exercise a careful discretion not thereby to do it more harm than good. On the other hand, we must be careful not to encourage the mere pretense of race feeling manufactured in the interest of individual political ambition.

Personally, I have not the slightest race prejudice or feeling, and recognition of its existence only awakens in my heart a deeper sympathy for those who have to bear it or suffer from it, and I question the wisdom of a policy which is likely to increase it. Meantime, if nothing is done to prevent it, a better feeling between the negroes and the whites in the South will continue to grow, and more and more of the white people will come to realize that the future of the South is to be much benefited by the industrial and intellectual progress of the negro. The exercise of political franchises by those of this race who are intelligent and well to do will be acquiesced in, and the right to vote will be withheld only from the ignorant and irresponsible of both races.

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Saturday, January 17, 2015

Alabama State Constitution of 1901/Initial Constitution - Wikisource, the free online library

OTHERWISE: Alabama State Constitution of 1901/Initial Constitution - Wikisource, the free online library: "Watching Selma the thought occurred to me - where did the County Clerk get the authority to deny the vote?  The Alabama Constitution of 1901 limited the franchise to men, required the poll tax to be paid, and made it a criminal offense (bribery) to pay or advance to another the money to pay the poll tax.  But there was more - much more. -gwc"

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Could BP, Feds settle in massive 2010 oil spill civil case? Experts weigh in | NOLA.com

BP Oil Spill: a Look Back

Federal Judge Carl Barbier has capped at $13.7 billion the maximum fine BP could face in the upcoming penalty phase trial for the 2010 Gulf oil spill.  The court's findings of fact conclude

PARAGRAPH 277. The Court finds that 4.0 million barrels of oil released from the reservoir. After deducting the Collected Oil from this amount per the parties’ stipulation, the Court finds for purposes of calculating the maximum possible civil penalty under the CWA that 3.19 million barrels of oil discharged into the Gulf of Mexico.

Settlement?  I doubt it.  BP has fought very hard.  They have substantial grounds for appeal on Barbier's finding of gross negligence - since it was operators negligence, not policy planners who were found culpable.  And the very definition of "gross negligence or willful misconduct" in the Oil Pollution Act Section 1321 is undefined. - gwc

Could BP, Feds settle in massive 2010 oil spill civil case? Experts weigh in | NOLA.com

***Could the latest ruling push both sides into settlement talks?

"Lawyers are intrinsically conservative," said David Logan, a law professor at Roger Williams University in Rhode Island who has been following the trial. "A settlement gives finality in return for perhaps unrealistic hopes that everything in a complex case will break your way."

Logan said the prospect of a settlement is always a reality in complex litigation. A major ruling like the one on Thursday gives each party a chance to pick up the phone without giving the appearance they lack confidence in their case, he said.

"From this second until this goes to the highest court possible, there is always the possibility of a settlement," Logan said. "That said, there are a lot of angles here that we may not be aware of."

BP reached a $4.5 billion criminal settlement with the Justice Department over the spill in late 2012. That included $525 million paid to the Securities and Exchange Commission for charges the company lied to investors during the spill.
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Tuesday, January 13, 2015

Insider Trading - UNITED STATES v. NEWMAN

The 2d Circuit - in a criminal prosecution for insider trading tips - has held that the Government failed to present sufficient evidence that either corporate tipper received a "personal benefit" to trigger a breach of a fiduciary duty. The Court explained that the Government must prove a "meaningfully close personal relationship that generates an exchange that is objective, consequential, and represents at least a potential gain of a pecuniary or similarly valuable nature." - gwc


"We agree that the jury instruction was erroneous because we conclude that, in order to sustain a conviction for insider trading, the Government must prove beyond a reasonable doubt that the tippee knew that an insider disclosed confidential information and that he did so in exchange for a personal benefit. Moreover, we hold that the evidence was insufficient to sustain a guilty verdict against Newman and Chiasson for two reasons.

 First, the Government's evidence of any personal benefit received by the alleged insiders was insufficient to establish the tipper liability from which defendants' purported tippee liability would derive. Second, even assuming that the scant evidence offered on the issue of personal benefit was sufficient, which we conclude it was not, the Government presented no evidence that Newman and Chiasson knew that they were trading on information obtained from insiders in violation of those insiders' fiduciary duties.

 Accordingly, we reverse the convictions of Newman and Chiasson on all counts and remand with instructions to dismiss the indictment as it pertains to them with prejudice."

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New Jersey Supreme Court Denies Cert in Transactional Malpractice Case | New Jersey Law Journal

OTHERWISE: New Jersey Supreme Court Denies Cert in Transactional Malpractice Case | New Jersey Law Journal

One of the most irritating defenses in legal malpractice case is the "scrivener" argument.  The usual form is that a "sophisticated businessman" dictated the terms and "I just wrote it up". But we owe a duty  of competence and diligence to make an independent assessment regarding the legal consequences of contract language, including the duty to make sure that the client understands the agreement and how it matches up with his objectives. In Cottone v, Fox Rothschild the Appellate Division of the Superior Court of New Jersey confronted the question and reversed a grant of summary judgment to defendant law firm Fox Rothschild.

Read More

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Monday, January 12, 2015

‘All Eyes Are Upon Us,’ by Jason Sokol - NYTimes.com

‘All Eyes Are Upon Us,’ by Jason Sokol - NYTimes.com


Race and Politics From Boston to Brooklyn
By Jason Sokol
Illustrated. 385 pp. Basic Books. $32.
reviewed by David Levering Lewis

If, as many believe, America’s experiment in postracialism is over, then “All Eyes Are Upon Us” is a prescient book that offers a great deal to explain a national self-deception of stunning brevity. According to Jason Sokol, whose anecdotally rich first book, “There Goes My Everything,” tracked white Southerners variously coping in the civil rights era, historians have paid insufficient attention to the Janus-faced ­responses of white Northerners to the struggles of black Americans. To be sure, monographs by James Goodman and Thomas Sugrue have explored the dark side of Northern race relations. They found that although the dominant racial philosophies of whites in the North and South were antithetical, opportunity for a majority of black men and women in the North was not very different from what it was in the South.
Sokol agrees: “Rampant segregation in cities across the country rendered racial inequality a national trait more than a Southern aberration.” He argues for a somewhat novel understanding of the North’s “conflicted soul,” which combined two parallel narratives — knee-jerk opposition to change and tokenistic inclusiveness. On the one hand, the region’s violent opposition and calculated amnesia in relation to the civil rights of ­African-Americans; on the other, its high-minded conceit as custodian of the nation’s conscience and embodiment of John Winthrop’s words: “We shall be as a city upon a hill, the eyes of all people are upon us.” read more
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Sunday, January 11, 2015

NYPD Work Slowdown Is Being Celebrated by New Yorkers of Color | The New Republic

NYPD Work Slowdown Is Being Celebrated by New Yorkers of Color | The New Republic: "By Aurin Squire

 For the second consecutive week, New York City police have virtually ceased writing tickets and arresting people for many nonviolent crimes, on the order of a 90 percent drop from a year earlier. After perceived slights by Mayor Bill de Blasio, civil protests against police brutality, and the murder of two officers by a deranged gunman, the New York Police Department is fighting back by not doing its job. Or rather, police appear to be using their resentment as an organizing incentive to skip certain non-essential cop duties.

The police seem to be trying to teach a lesson to a city they feel doesn't adequately appreciate them.

For New Yorkers who value fair policing, though, the slowdown is an occasion to celebrate." red more

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Balkinization: Obfuscating what judges do

At least four Justices of the Supreme Court voted (despite the absence of a Circuit split) to hear a challenge to the Affordable Care Act.  A provision- read in isolation- provides health insurance subsidies to those who become insured through state exchanges.  Since most GOP-led states refused to establish a health insurance exchange those who bought on the federal exchange Healthcare.gov would lose their premium subsidies if the plaintiffs prevail.

Levinson's main point is that a recent Washington post editorialist Stephen Stromberg column "illustrates how hard it is to escape the view/hope that suggests that justices live in an apolitical realm where consequences don't matter and the language of complex documents "compels" them to do what they think is really bad for the society." - gwcBalkinization: Obfuscating what judges do

by Sandy Levinson   // UT Austin Law School

 There is an illuminating piece by Stephen Stromberg in today's Washington Post [What would happen if the Court dismembers Obamacare]on the utter disaster that will ensue if those supporting the challenge in King v.Burwell  prevail before the Supreme Court re the "state" as distinguished from "federal" exhanges. He notes not only that literally millions of people would lose their coverage in Republican states, but also that premiums would likely skyrocket and set up the "death spiral" of health insurance.  The Republicans would get what they've been wishing for (and haven't achieved), which is a true trainwreck (for which they have no plausible solution whatsoever). 

But my purpose is not to rant about evil Republicans and their unceasing attempts to torpedo Obamacare (which I'd gladly see replaced by a Canadian single-payer system if that were politically feasible). Rather, I'm interested in the language that Stromberg, a member of the Post's editorial board, uses to describe the stance of the Supreme Court:

The court can’t base its ruling merely on the possible effects.

The Urban Institute analysis gives a sense of the stakes [8.2 million more uninsured and 35% higher premiums].  It’s astonishing that the coalition challenging the government would welcome such an outcome, creating a policy fiasco where they only imagined one to be before....

Though they have plenty of legal reasons to avoid it, a majority of justices might still rule that lawmakers’ language compels a negative result, detonating the bomb instead of defusing it."

read more

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Saturday, January 10, 2015

5th Circuit denies en banc review - BP Penalties Trial Will Proceed

Saw stuck in riser pipe in BP attempt to stem spill
The Oil Pollution Act of 1990 provides for civil penalties under 33 U.S.C. § 1321(b)(7)(A).  Amending the Clean Water Act, it imposes mandatory penalties on owners of facilities "from which oil or a hazardous substance is discharged." Discharge is defined as “spilling, leaking,pumping, pouring, emitting, emptying or dumping.” 33 U.S.C. § 1321(a)(2).
District Judge Carl Barbier who manages both the private class action litigation and governmental enforcement actions held that discharge is the point where "uncontrolled movement" begins. In re Oil Spill by the Oil Rig "Deepwater Horizon" in the Gulf of Mexico, on April 20, 2010, 844 F.Supp.2d 746, 758 (E.D.La. 2012). Applying this standard, the court concluded that oil flowing from the well through the Deepwater Horizon's riser pipe was a discharge from the well. The court then entered summary judgment on the issue of BP's and Anadarko's liability as co-owners of the well and BP appealed.

In a panel decision In re Deepwater Horizon, 753 F.3d 570 (June 4, 2014) Barbier was affirmed.  BP Exploration and co-owner Anadarko sought en banc review and asked the panel reconsider.  The well had never been successfully sealed. Since there was no "controlled confinement" there was no "discharge" within the statute's meaning and Clean Water Act penalties were not warranted.  On November 4 the panel denied the motion.

The 5th Circuit yesterday denied the motion for en banc review.  Divided 7-6, the dissenters argue that the “controlled confinement” test does not follow from
the text of the CWA".  The dissent by Judge Edith Clement denounces as "metaphysical" the panel's November 4  re-definition of loss of "controlled confinement" as the "absence of control".  That is incompatible with the CWA she says - and in a penalty statute ambiguities should be construed in favor of the defendant.

My estimate is that the BP/Anadarko argument is too clever by half. The OPA of was prompted by the Exxon Valdez spill and so discharge from a vessel or failure of a pump (e.g. a pipeline) is evoked by the statutory language.  But the OPA declares it to be national policy that there shall be no oil spills.  Any ambiguity therefore should be construed so as to effect that statute's deterrent purpose.  Yet the fact that six judges voted to reconsider will doubtless yield another petition for certification to the Supreme Court - and preserves a sharply stated issue for appeal of the ultimate penalty which will be imposed by Judge Barbier who has already found that BP engaged in "reckless or willful misconduct". - gwc

Racial Isolation in New York State Public Schools- NY Times

Buffalo was once a model of integrated schools but court supervision ended, fiscal problems arose, industry left the area and now things are bad
Racial Isolation in Public Schools - NYTimes.com
by The Editorial Board
"New York’s schools are the most segregated in the nation, and the state needs remedies right away. That was the message delivered to the governor and the Legislature last week by the chancellor of the State Board of Regents. Minority children are disproportionately trapped in schools that lack the teaching talent, course offerings and resources needed to prepare them for college and success in the new economy.
This is not an easy problem to solve. But the state cannot just throw up its hands. It has a moral obligation to ensure that as many children as possible escape failing schools for ones that give them a fighting chance. And history has shown that districts can dramatically improve educational opportunities for minority children — and reduce racial isolation — with voluntary transfer plans and especially with high-quality magnet schools that attract middle-class families.
This problem is especially urgent in New York’s second-largest city, Buffalo, where federal civil rights officials are enforcing an agreement intended to expand minority access to the better schools in a dysfunctional system, which has suffered from years of abysmal leadership and middle-class flight.
Today nearly half the city’s public schools either have low graduation rates or rank in the bottom 5 percent of state schools in math and English. The United States Department of Education’s Office for Civil Rights began its investigation of charges that the district was discriminating against nonwhite students in admissions to the better schools — those that choose students based on test scores and other screening.**** keep reading"

Thursday, January 8, 2015

Deepwater Horizon audit finds one in five business, seafood claims lack proper documentation | Louisiana Record

Deepwater Horizon audit finds one in five business, seafood claims lack proper documentation | Louisiana Record December 2, 2014


NEW ORLEANS – An audit of the Deepwater Horizon settlement facility shows that nearly one in five claims in certain fraud-prone categories were paid without proper documentation.

The $14 million independent audit, paid for by oil giant BP PLC, shows that 20.6 percent of business loss claims attributed to the 2010 oil spill lacked documentary proof. Similarly, fishermen claims for losses lacked proper documentation 18.4 percent of the time. These two loss categories have been cited by BP and federal investigators as magnets for fraud and both programs have been a focus in recent months for scores of clawback requests and criminal indictments. 

 The audit, released last week by Virginia-based accounting firm McGladrey LLP, found that some $538 million of nearly $4 billion in randomly selected claims paid by Claims Administrator Patrick Juneau lacked proper documentation. Although the audit stopped short of stating that all of the $538 million Juneau paid out in improperly documented claims was fraudulent, it noted that in many cases auditors working under Juneau may not have exercised “appropriate professional skepticism’’ when sending out checks. 

The audit also faulted Juneau’s office for exercising careless internal controls across a variety of operations. For example, it said its attempt to reconcile claims payments accounts uncovered an “unexplained” discrepancy of $5.4 million. In other cases, the audit cited a general lack of internal monitoring, an incomplete history of claims, no systems in place to document manual overrides of the claims processing system and other program deficiencies."

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BP appeals McGladrey audit findings, says auditor should release interim reports on Deepwater Horizon payment investigation | Louisiana Record

BP appeals McGladrey audit findings, says auditor should release interim reports on Deepwater Horizon payment investigation | Louisiana Record

NEW ORLEANS – BP PLC is demanding to see the work product of an independent audit of the Deepwater Horizon claims operation, saying the $14 million investigation overlooked serious flaws in the court appointed claims administrator’s operation.

The appeal to the U.S. Fifth Circuit Court of Appeals seeks more information and earlier drafts of the audit performed by McGladrey LLP, which was initially budgeted at about $1.4 million but ballooned in cost to 10 times that.

Though BP paid for the audit, U.S. District Judge Carl Barbier rejected the oil giant’s request to make information underpinning the investigation part of the court record, maintaining it would serve no public purpose. BP has long claimed the Deepwater Horizon settlement fund is administered poorly and is open to fictitious and fraudulent claims. The company says that Claims Administrator Patrick Juneau is unfit to administer the settlement and should be removed."

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Sunday, January 4, 2015

Mae Keane, The Last 'Radium Girl,' Dies At 107 : NPR

Employees of the U.S. Radium Corp. paint numbers on the faces of wristwatches using dangerous radioactive paint. Dozens of women, known as "radium girls," later died of radium poisoning. The last radium girl died this year at 107.

Mae Keane, The Last 'Radium Girl,' Dies At 107 : NPR


"In the early 1920s, the hot new gadget was a wristwatch with a glow-in-the-dark dial.

"Made possible by the magic of radium!" bragged one advertisement.

And it did seem magical. Radium was the latest miracle substance — an element that glowed and fizzed, which salesmen promised could extend people's lives, pump up their sex drive and make women more beautiful. Doctors used it to treat everything from colds to cancer.

 In the 1920s, a young working-class woman could land a job working with the miracle substance. Radium wristwatches were manufactured right here in America, and the U.S. Radium Corp. was hiring dial people to paint the tiny numbers onto watch faces for about 5 cents a watch.

EPA Expected to Issue Million-Year-Long Regulation
They became known as the radium girls.

 In order to get the numbers small enough, new hires were taught to do something called "lip pointing." After painting each number, they were to put the tip of the paintbrush between their lips to sharpen it.

Twelve numbers per watch, upwards of 200 watches per day — and with every digit, the girls swallowed a little bit of radium.

"Of course, no one thought it was dangerous in these first couple of years," explains Deborah Blum, author of The Poisoner's Handbook."

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