Tuesday, June 30, 2015

Michigan v. EPA - Supreme Court Strikes Power Plant Regs

Michigan v. EPA - Supreme Court Strikes Green House Gas Regs as Irrational

Judicial modesty is a virtue embraced principally in dissent, it seems.  Congress directed the EPA to study the problem of power plant emissions, a major source of pollution because coal burns inefficiently.  The EPA is an agency with substantial scientific expertise.  But, according to the Supreme Court's conservative majority the EPA irrationally failed to consider costs in its calculus.

In the minority's view Justice Scalia's opinion is a dressed up version of the usual talk show laments  - EPA out of control, etc.  The four dissenters, speaking through Justice Elena Kagan, declare:

Despite that exhaustive consideration of costs, the Court
strikes down EPA’s rule on the ground that the Agency
“unreasonably . . . deemed cost irrelevant.”  On the majority’s theory, the rule is invalid because EPA
did not explicitly analyze costs at the very first stage of
the regulatory process, when making its “appropriate and
necessary” finding. And that is so even though EPA later
took costs into account again and again and . . . so on. The
majority thinks entirely immaterial, and so entirely ignores,
all the subsequent times and ways EPA considered
costs in deciding what any regulation would look like.
That is a peculiarly blinkered way for a court to assess
the lawfulness of an agency’s rulemaking. I agree with
the majority—let there be no doubt about this—that EPA’s
power plant regulation would be unreasonable if “[t]he
Agency gave cost no thought at all.”   But that is just not what happened here.

Monday, June 29, 2015

Remembering President Wilson's Purge of Black Federal Workers

President Woodrow Wilson - Democrat, progressive - Princeton history professor, envisioned the League of Nations as a means to world peace.  That is his principal image among Americans.  But there is another side: racist.  The Virginian segregated the Army, purged African Americans from federal jobs.  Josh Marshall has the story. - gwc

Remembering President Wilson's Purge of Black Federal Workers

by Josh Marshall

The 1912 presidential election featured not only a historic fissure in the Republican party, it also featured two candidates associated with the Progressive Movement, Wilson and renegade Republican and former President Theodore Roosevelt running on the Progressive Party ticket. Wilson is known and still honored as a Progressive reformer on the domestic front and his foreign policy is still referenced as the embodiment of idealistic foreign policy engagement, putting democracy rather than realpolitik at the center of policy formulation. Yet to say that Wilson was a disappointment on civil rights is a colossal understatement.

Thursday, June 25, 2015

Disparate ImpactHousing Litigation Survives Supreme Court Challenge : SCOTUSblog

We dodged another bullet today in the Texas Fair Housing Act case.  Writing for the 5-4 majority Justice Anthony Kennedy held to his very formalistic view of racial discrimination but found his way to the plaintiffs side.  Generally only intentional race-based choices satisfy him as improper.  He allows for some flexibility but is deeply skeptical otherwise, as Lyle Denniston notes at Scotusblog.  But today the weight of precedent put in his hands the swing vote that allowed "disparate impact" cases to survive.  He frames the issue thus:

In contrast to a disparate-treatment case, where a
“plaintiff must establish that the defendant had a discriminatory
intent or motive,” a plaintiff bringing a disparate impact
claim challenges practices that have a “disproportionately
adverse effect on minorities” and are otherwise
unjustified by a legitimate rationale. Ricci v. DeStefano,
557 U. S. 557, 577 (2009) ... The question presented for the Court’s determination
is whether disparate-impact claims are cognizable
under the Fair Housing Act (or FHA) 42 U. S. C. §3601 et seq. 
Important is his recognition of the weight of history (documented by the Innovative Communities Project amicus brief) legal segregation, white flight, and the redlining of places like the one I grew up in - the archetypal suburb Levittown where unenforceable covenants to sell only to "Caucasians" were in every deed:
De jure residential segregation by race was declared
unconstitutional almost a century ago, Buchanan v. Warley,
245 U. S. 60 (1917), but its vestiges remain today,
intertwined with the country’s economic and social life.
Some segregated housing patterns can be traced to conditions
that arose in the mid-20th century. Rapid urbanization,
concomitant with the rise of suburban developments
accessible by car, led many white families to leave the
inner cities. This often left minority families concentrated
in the center of the Nation’s cities. During this time,
various practices were followed, sometimes with governmental
support, to encourage and maintain the separation  of the races. 
Valerie Schneider offers a first look at today's decision. - gwc

Symposium: The sweetness of the status quo: The Court upholds over forty years of precedent : SCOTUSblog

by Valerie Schneider (Assistant Professor, Howard University School of Law.)

Today’s opinion in Texas Department of Housing and Community Affairs v. Inclusive Communities Project left intact over forty years of fair housing jurisprudence in which eleven circuits have assumed or decided that disparate impact claims are cognizable under the Fair Housing Act. Though, as both the Court and scholars have acknowledged, disparate impact claims are hard to win, disparate impact liability remains an important tool for combating discriminatory housing decisions where race-based intent is absent.

The Inclusive Communities Project brought suit over how the Texas Department of Housing and Community Affairs distributes tax credits for low-income housing. The Department’s policy, the group claimed, causes almost all affordable units to be built in racially segregated low-income areas, providing minorities with few opportunities to move to integrated or wealthier areas. Though the creators of the tax credit policy had no racial intent, according to the Inclusive Communities Project the results of the policy confined minorities to segregated areas.

Importantly, today’s opinion, like some lower court opinions, acknowledges that decision makers may need to consider race in some circumstances in order to ensure compliance with the Fair Housing Act. Towards the end of its decision, the Court notes that remedial orders in disparate impact cases should be designed, where possible, to eliminate racial disparities through race-neutral means. That said, to eliminate the disparate impact of some housing policies, the Court acknowledges, “race may be considered in certain circumstances.” Mere awareness of race in attempting to address the ills of racial segregation does not, according to the Court “doom that endeavor at the outset.”

This acknowledgement – that some degree of racial awareness may be required to remedy policies that have a discriminatory disparate impact based on race – puts to rest concerns that the Court would declare disparate impact analysis unconstitutional under the Fourteenth Amendment. It also reflects the basic reality of our day. Without analyzing current patterns of segregation, how can municipalities implement policies that avoid disparate impacts? Without acknowledging the racial impacts of decisions, how can courts implement remedies that have a realistic chance of addressing insidious disparate impacts where they exist? The Court recognized today that in order to effectuate the broad purpose of the Fair Housing Act, we cannot simply close our eyes to the racial impacts of seemingly race-neutral decisions.

In the area of housing, more, perhaps, than in any other area, governmentally sanctioned racism drives our current reality. Through federal loan policies, local discriminatory zoning practices, court-enforced racially restrictive covenants, and other methods, the United States government created ghettos and then confined African Americans to those areas. We constructed this country on a faulty foundation of racism, and the hard-won civil rights laws of the 1960s and 1970s, including the Fair Housing Act, were aimed at repairing the structure of our society. Today’s decision acknowledges that all of tools the Fair Housing Act provides are required to repair that foundation.

The decision, of course, is not a total win for fair housing advocates. It contains a number of warnings to would-be litigants and to lower courts. Kennedy notes, for example, that the type of facts presented by this case are disfavored because, according to Kennedy, such cases put courts in the uncomfortable position of second-guessing housing authorities’ policy decisions. Under the facts of the current case, Kennedy worries that the housing authority could be subject to disparate impact liability whether it chose to place its affordable units in wealthy suburbs or in the inner city. In contrast, suits targeting “zoning laws and other housing restrictions that function unfairly to exclude minorities from certain neighborhoods without sufficient justification” Kennedy writes, reside at the “heartland” of disparate impact jurisprudence.

Plaintiffs Verdict in Gay Conversion Case - Ferguson v. Jonah

Jonah v. Ferguson was brought under the New Jersey Consumer Fraud Act for "gay conversion therapy". The Act provides for "ascertainable losses" - e.g. the money spent on the fraudulent treatment. Demonstrated losses are trebled, and counsel fees can be awarded in favor of the prevailing party. They are likely to greatly exceed the proven losses. - gwc

Verdict for Plaintiffs on almost all counts. All votes were unanimous (7-0)

The only no votes were (Referring to the July Verdict Form linked below):

Question 9 & 10 (Plaintiffs Michael Ferguson) as to defendants Arthur Goldberg and JONAH, Inc.; Yes as to Alan Downing.

Question 13 & 14 (Plaintiff Bella Levin) No as to Alan Downing; Yes as to defendants Arthur Goldberg and JONAH, Inc.


Ascertainable Losses:
Benji Unger (Question 4) $17,950
Chaim Levin (Question 8) $650
Michael Ferguson (Question 12): $1,050
Bella Levin (Question 16): $4,000
Jo Bruck (Question 20): $500

Jury Interrogatories
<p>Courtesy of <a href="http://equalitycasefiles.org/">Equality Case Files</a><p style="text-align:center !important;"><a href="http://files.eqcf.org/private-ferguson-v-jonah-trial-blank-jury-verdict-form/"><iframe src="http://files.eqcf.org/wp-content/uploads/2015/06/Ferguson-v-JONAH-Jury-Verdict-Form-final-6-24-15.pdf" border="0" width="776px" height="707px" /></a></iframe></p></p>

Jury Interrogatories
<p>Courtesy of <a href="http://equalitycasefiles.org/">Equality Case Files</a><p style="text-align:center !important;"><a href="http://files.eqcf.org/cases/ferguson-v-jonah-trial-jury-instructions/"><iframe src="http://files.eqcf.org/wp-content/uploads/2015/06/Ferguson-v-JONAH-Jury-Instructions-final.pdf" border="0" width="776px" height="707px" /></a></iframe></p></p>

Affordable Care Act Survives Supreme Court Scare - King V. Burwell

Prof. Julius Cohen taught Legislation in my first semester in law school.  Surprisingly the subject went into disfavor in later years, only to be revived recently.  We learned canons of construction.  Among the first was to construe a law not literally but so as to effectuate the legislators intent.  That rule had its origins in the seventeenth century when the Parliament raised the New Model Army and went to war against the Royalists, culminating in parliamentary supremacy with the Glorious Revolution of 1688.
Our Constitution sought to diffuse power, creating an often dysfunctional system.  In the 1930's the Supreme Court found in Congress's power to regulate commerce among the states the  power to overcome the small government view of federalism that James Madison and the much overrated Thomas Jefferson heralded.  Babbit-like resentment of the costs imposed by federal regulation have been a cornerstone of modern conservatism.  It has led them to embrace state's rights and a sharply limited view of the Supreme Court's powers.  But as conservative ideological preeminence grew in the past forty five years the denunciation of "judicial activism" became a ritual cry but not an operating principal.

When the Affordable Care Act became law conservatives saw an opportunity to undermine the commerce clause jurisprudence which is the jurisprudential foundation of the modern regulatory state.  In 2011 they came very close to a win in Sebelius v. National Federation of Independent Businesses.  Five justices, including the Chief Justice,concluded that the ACA was not authorized under the commerce clause.  "Obamacare" was saved by C.J. John Roberts opinion that the tax power authorized the insurance requirement.

When King v. Burwell was accepted by the Supreme Court the entire legislative structure was put at risk - over what appeared to be a drafting error.  But there is little more appealing to a lawyer than the words of a statute.  And here the words called for an "exchange established by the State" as the portal through which federal health insurance tax credit subsidies would be allocated.  The justices faced the question: what will prevail: the words of the provision or an expansive, saving construction of the entire Act, whose sprawling 2000 pages sent a general message that Congress's intent was to subsidize health insurance for low and moderate wage earners.   The dilemma for (it proved) Justices Roberts and Kennedy was that construction of the phrase in context meant a green light for a law the structure of which was unconstitutional, in their view.  Construing Congressional intent requires discipline of the judge because today's Congress is led by men who have voted dozens of times to repeal the entire ACA.
Such a choice is inevitably driven by the jurist's view of the desirable outcome.  But that view is a broad one.  There are competing canons of construction: the literal approach and the overall purpose approach.  A judge may consider  the impact of a decision, not just adherence to the canon of construction that one must be bound by the words of the statute.  Searching for implied intent is an invitation to abandon the words, and seek one's own preferred meaning.  In Justice Scalia's view that is what the majority has done. The ACA should be called "Scotuscare" now he cried.  Antonin Scalia certainly knows how to coin a word.  But his ability to govern is suspect.  The wisdom of the King V. Burwell majority's ruling in my view is that deference to legislation requires recognition of drafting failures, and an appreciation that a major regulatory measure like the ACA creates new classes of expectations - such as the expectation of millions that their health insurance will continue to be made affordable thanks to public largess.  - gwc

Supreme Court Allows Nationwide Health Care Subsidies - The New York Times
by Adam Liptak
The question in the case, King v. Burwell, No. 14-114, was what to make of a phrase in the law that seems to say the subsidies are available only to people buying insurance on “an exchange established by the state.”

Continue reading the main story


Supreme Court Decision on Health Care Subsidies

The Supreme Court ruled that President Obama’s health care law may provide nationwide tax subsidies to help poor and middle-class people buy health insurance.

Chief Justice Roberts wrote that the words must be understood as part of a larger statutory plan.
“In this instance,” he wrote, “the context and structure of the act compel us to depart from what would otherwise be the most natural reading of the pertinent statutory phrase.”
“Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them,” he added. “If at all possible, we must interpret the act in a way that is consistent with the former, and avoids the latter.”

Wednesday, June 24, 2015

How The South Lost The War But Won The Narrative

Statute of the treasonous General Robert E. Lee,
Monument Avenue, Richmond, VA
In For Cause and Comrade:  Why Men Fought and Died in the Civil War the great historian James M. McPherson explores letter of soldiers on both sides.  The title conveys the thesis.  It was, as Kevin Philips calls it, a cousins war.  People fought to defend what they believed in and for their comrades and tribesmen.  In that sense there was honor on both sides.  Former Sen. Jim Webb makes this point.
But the modern use of the Confederate battle flag has nothing to do with that.   It is part of the southern legend, the trail of heroes - the justification of the Jim Crow laws, of racial segregation, of white supremacy.  If any good comes from the Emanuel A.M.E. Church massacre it will be the beginning of the end of the lionization of the justly defeated cause. - gwc
How The South Lost The War But Won The Narrative
by Tony Horwitz

***With the Civil Rights struggle, scholars of the Civil War era gave new emphasis to race and slavery, and this trend has continued ever since. The evidence is overwhelming that Southern states seceded and fought to maintain slavery. Don’t believe me; believe the words of secessionists and Confederate leaders. Among the most often cited is Confederate vice-president Alexander Stephens who in 1861 declared the Founders “fundamentally wrong” in judging all humans equal. “Our new government is founded upon exactly the opposite idea; its cornerstone rests upon the great truth, that the negro is not equal to the white man; that slavery—the subordination to the superior race—is his natural and normal condition.”

The same view was expressed by the secessionist conventions in Southern states that published their reasons for leaving the Union. The authors sometimes couched their declarations in Constitutional arguments about sovereignty, but left no doubt about the state right at issue. Mississippians bluntly declared, “Our position is thoroughly identified with the institution of slavery—the greatest material interest of the world.” Texans cited a Northern “crusade” against the “beneficent and patriarchal system of African slavery,” and Texans’ conviction that bondage “should exist in all future time.”

There are countless such statements, scores of scholarly works documenting the cruelties of the slave economy and how much it was bound up with Southern life and politics. Most textbooks follow suit. Yet the prevailing popular view of the Civil War still reflects a strong Southern bias: that the Confederacy fought for vaguely defined “states’ rights,” and its battle flag isn’t intrinsically racist, it’s an anodyne emblem of Southern “heritage.”

I’m not very optimistic that the debate over South Carolina’s flag will bring a deeper reckoning. Furling the statehouse flag may bring temporary relief to South Carolinians, but what we truly need to bury is the gauzy fiction that the antebellum South was in any way benign, or that slavery and white supremacy weren’t the cornerstone of the Confederacy. Only then, perhaps, will we be able to say that the murdered in Charleston didn’t die in vain, and that the Lost Cause, at last, is well and truly lost.

11 myths about gun control

11 myths about the future of gun control, debunked after the Charleston shooting http://gu.com/p/4axgm?CMP=Share_AndroidApp_Blogger

BP Spill Costs Could Reach $68 billion


Saturday, June 20, 2015

Gun Control: The Public Health and Rational Basis Review

OTHERWISE: Gun Control: The Public Health and Rational Basis Review

The gun control battle must be fought over what constitutes proper regulation since compulsory disarmament has been taken off the menu in Heller. 

Thursday, June 18, 2015

Deepwater Horizon claimant assistance centers closing | New Orleans CityBusiness

Deepwater Horizon claimant assistance centers closing | New Orleans CityBusiness

The Deepwater Horizon claimant assistant centers, including the one on Veterans Boulevard in Metairie, will close Friday as the program moves into a different phase, administrator Patrick Juneau said today.
The centers were established to help with the intake of claims during the program’s first three years.
“Since the deadline to file claims was June 8, the program is now entering into a different phrase,” Juneau said. “We are now putting our resources into the review of claims. We knew as the program continued, we would come to the day when the claimant assistance centers are no longer needed for the intake of claims.”
Juneau said the toll-free help line is still operational. If claimants have questions about their claims, they can call toll-free, (866) 992-6174. For TTY assistance, call (888) 584-7624.
Claimants can also email their questions to questions@dhecc.com.

Read more: http://neworleanscitybusiness.com/blog/2015/06/17/deepwater-horizon-claimant-assistance-centers-closing/#ixzz3dQSr2ePd

Tuesday, June 16, 2015

Death toll from defective GM ignition switches rises to 114

Last year the Valukas report - prepared by Jenner & Block for the GM Board presented a devastating presentation of the willful blindness entrenched by GM's General Counsel.  Since the blind do not see it appears that no one knew or cared to know of the scale of the catastrophe an odd little flaw in the ignition switch mechanism had wrought.

Phrases like getting away with murder come to mind.  GM was shielded by the bankruptcy of "old GM" and the continuation of its business b "new GM".  In my view the discharge was fraudulently obtained by GM due to that willful blindness.  GM should hae been subjected to civil liability including punitive damages.

The company smartly appointed Kenneth Feinberg to clean up the mess by offering settlements to claimants - free, of course, from the threat of punitive damages.

But the Justice Department has not concluded its investigation and indictments seem likely.  - gwc

Death toll from defective GM ignition switches rises to 114

DETROIT (AP) — The death toll from faulty ignition switches in General Motors small cars has risen by three to 114.
Victims’ families are being offered compensation of at least $1 million each by attorney Kenneth Feinberg, who was hired by GM last year. In addition, Feinberg will make offers to 229 people who were injured in crashes caused by the switches in the Chevrolet Cobalt and other older cars.
GM recalled 2.6 million of the cars last year, but acknowledged it knew about the switch problems for more than a decade.
Feinberg’s compensation fund received 4,342 claims by the Jan. 31 deadline. About 3 percent remain under review. About 90 percent were deemed deficient or ineligible. So far, Feinberg has made 245 compensation offers; 179 have been accepted and six rejected, Camille Biros, deputy administrator of the compensation fund, said in an email. Sixty offers are still being considered, she said.
GM paid $200 million to settle claims filed with Feinberg as of March 31.
Through last year, GM estimated that 13 people had died because of the switches, but the company said that number would rise. Lawmakers estimated the total would be more than 100.

'via Blog this'

Pledge in Solidarity to Defend Marriage | Defend Biblical Marriage

Pledge in Solidarity to Defend Marriage | Defend Biblical Marriage

We stand together in defense of marriage and the family and society founded upon them. While we come from a variety of communities and hold differing faith perspectives, we are united in our common affirmation of marriage.
On the matter of marriage, we stand in solidarity. We affirm that marriage and family have been inscribed by the Divine Architect into the order of Creation. Marriage is ontologically between one man and one woman, ordered toward the union of the spouses, open to children and formative of family. Family is the first vital cell of society, the first government, and the first mediating institution of our social order. The future of a free and healthy society passes through marriage and the family.
Marriage as existing solely between one man and one woman precedes civil government. Though affirmed, fulfilled, and elevated by faith, the truth that marriage can exist only between one man and one woman is not based on religion or revelation alone, but on the Natural Law, written on the human heart and discernible through the exercise of reason. It is part of the natural created order. The Natural Law is what Dr. Martin Luther King, Jr., referred to as a higher law or a just law in his famous Letter from Birmingham Jail.
Marriage is the preeminent and the most fundamental of all human social institutions. Civil institutions do not create marriage nor can they manufacture a right to marry for those who are incapable of marriage. Society begins with marriage and the family.
We pledge to stand together to defend  marriage for what it is, a bond between one man and one woman, intended for life, and open to the gift of children.

Monday, June 15, 2015

Tyson Foods, Inc. v. Bouaphakeo : SCOTUSblog

Cert granted!

Tyson Foods, Inc. v. Bouaphakeo : SCOTUSblog

Issue: (1) Whether differences among individual class members may be ignored and a class action certified under Federal Rule of Civil Procedure 23(b)(3), or a collective action certified under the Fair Labor Standards Act, where liability and damages will be determined with statistical techniques that presume all class members are identical to the average observed in a sample; and (2) whether a class action may be certified or maintained under Rule 23(b)(3), or a collective action certified or maintained under the Fair Labor Standards Act, when the class contains hundreds of members who were not injured and have no legal right to any damages.

Committee Set To Reauthorize Critical September 11th Health Legislation | Energy & Commerce Committee

Committee Set To Reauthorize Critical September 11th Health Legislation | Energy & Commerce Committee

 June 1, 2015

“We will never forget the events of 9/11, the lives taken much too soon, as well as the remarkable bravery of all of those men and women who raced to ground zero and worked days on end in the relief efforts. Although we rebuilt and the Freedom Tower now stands tall as a beacon to our strength and resilience, many, many folks continue to suffer to this day,” said full committee Chairman Fred Upton (R-MI). “I am proud to work with my colleague, Frank Pallone, whose constituents are among those most in need of these critical programs, as we move this important bipartisan bill through the Energy and Commerce Committee and ultimately into law.

“We will never forget the horror of 9/11, but we also cannot forget about the thousands who risked their lives to save others on that morning,” said Ranking Member Frank Pallone, Jr. (D-NJ). “We now have a responsibility to come to those who continue to suffer from adverse health effects. The Zadroga Act ensures that these brave men and women receive the care that they need and deserve, and I am pleased that we are moving forward to reauthorize this critical legislation.”

This bipartisan legislation would provide important resources and certainty to programs that support those affected by the September 11th attacks and their families. It would extend the World Trade Center (WTC) Health Program indefinitely, remove the cap on payments under the September 11 Victim Compensation Fund (VCF), continue that fund until 2041, extend support for the WTC Health Registry, and exempt the VCF and WTC Health Program Fund from budget sequestration.

James Zadroga was a NYPD officer who responded for the rescue and recovery efforts at ground zero. Zadroga passed away in 2006 at age 34 because of health complications related to the 9/11 recovery efforts.

The Majority Memorandum, a witness list, and witness testimony will be available here as they are posted.
- See more at: http://energycommerce.house.gov/press-release/committee-set-reauthorize-critical-september-11th-health-legislation#sthash.AKrPG3To.FuUL6uVv.dpuf

Torts as Wrongs by John C. P. Goldberg, Benjamin C. Zipursky :: SSRN

 I have certain differences with Ben Zipursky and John Goldberg - mainly for overemphasizing the private law aspect of tort, over its public, judgmental aspect. But those deviations are small compared to our shared critique of the soulless utilitarianism of the "loss based" accounts exemplified by Richard Posner's law & economics, Guido Calabresi's Costs of Accidents, and Steven Shavell's welfare economics. - gwc

Torts as Wrongs by John C. P. Goldberg, Benjamin C. Zipursky :: SSRN


Torts scholars hold different views on why tort law shifts costs from plaintiffs to defendants. Some invoke notions of justice, some efficiency, and some compensation. Nearly all seem to agree, however, that tort law is about the allocation of losses. This Article challenges the widespread embrace of loss-based accounts as fundamentally misguided. It is wrongs not losses that lie at the foundation of tort law. Tort suits are about affording plaintiffs an avenue of civil recourse against those who have wronged them.

Although torts were once routinely understood as wrongs, since Holmes’s time, tort scholars have tended to suppose that the concept of a wrong is either too moralistic to explain the terms on which liability is imposed or so capacious as to be vacuous. We demonstrate that torts can be understood as a special kind of wrong without draining the content from the concept of a wrong. Specifically, every tort is a legal, relational, civil, and injury-inclusive wrong. In turn, tort law provides victims of such wrongs with a power to obtain recourse against those who have wronged them.

A view of torts as wrongs is not only conceptually available but interpretively superior to loss-based views. Indeed, the latter prove to be incapable of accounting for basic features of tort law, including: claims that are viable without proof of loss; claims that are not viable even though an actor has foreseeably caused a victim to suffer a loss; suits giving rise to remedies that do not involve the shifting of a loss; suits in which recovery turns on whether a certain kind of loss is parasitic on a predicate injury; and suits in which recovery is denied, or defenses rendered inapplicable, because there is a heightened or attenuated connection between the agency of the defendant and the plaintiff’s injury. In contrast to loss-based theories, a wrongs-based theory can easily account for all of these aspects of basic tort doctrine.

Perhaps the greatest challenge to wrongs-based theories lies in explaining what value there is, apart from loss-shifting, in having tort law. Our answer is that tort law is law for the recourse of wrongs. Hand-in-hand with their articulation of legal wrongs, courts provide victims of such wrongs with an avenue of civil recourse against their wrongdoers. This is what tort law does. It makes real the principle that for every right there is a remedy.

Ex-A.I.G. Chief Wins Bailout Suit, but Gets No Damages - The New York Times

Ex-A.I.G. Chief Wins Bailout Suit, but Gets No Damages - The New York Times

In Starr v. United States a United States Court of Federal Claims judge has ruled that the Federal Reserve was without power to do what it did to American International Group in the 2008 financial crisis: take ownership of the company in exchange for a loan of the money that the company needed to avoid liquidation as insolvent,

In a classic statement of the "but for" principle of causation Judge Thomas C. Wheeler held that former AIG CEO Maurice R. Greenberg suffered no loss: without the Federal Bailout the company would have gone into bankruptcy and common stock shareholder equity wiped out. - gwc

'via Blog this'

Sunday, June 14, 2015

The Role of Three-Judge Courts in Conservative Attacks on Campaign Finance Reform and Voting Rights//David Gans//Balkinization

In my 2L summer I assisted Con Law Clinic teacher William Bender on a constitutional challenge to the Capitol Grounds statute 40 USC 193g which barred demonstrations,  A three judge district court struck the law on First Amendment grounds. Jeannette Rankin Brigade v. Chief of Capitol
Police, 342 F. Supp. 575, 580 (D.D.C. 1972)  Conservatives attacked the three judge courts which eased access to the liberal Supreme Court.  But the three judge courts - from which appeal is to the high court - survived in campaign finance and voting rights cases.

Now the shoe is on the other foot as conservative litigators - with a conservative majority on the court - have wiped out most campaign finance limits, and deeply undermined the Voting Rights Act.  David Gans discusses the latest. - gwc

Balkinization: The Role of Three-Judge Courts in Conservative Attacks on Campaign Finance Reform and Voting Rights

by David Gans

Election law cases have come to the Supreme Court in droves in recent years, as conservative activists have taken advantage of federal laws that provide for a direct appeal to the Supreme Court in certain campaign finance and voting rights cases heard by three-judge district courts. What is similar about Citizens United v. FEC, McCutcheon v. FEC, NAMUDNO v. Holder, and Evenwel v. Abbott? In each one of these cases, the Justices agreed to hear a direct appeal from a three-judge district court. Three-judge districts courts (composed of two district court judges and one court of appeals judge) are a rarity in federal law, but play a very significant role in campaign finance and voting rights law. Congress has provided for three-judge courts in constitutional challenges to Bipartisan Campaign Reform Act, certain suits brought under the Voting Right Act, and in constitutional challenges to state redistricting. 
 A litigant does not have an automatic right to a three-judge court, and various considerations go into the decision to convene a three-judge court, but once convened, a case gets special treatment. Most important, appeals from three-judge courts go straight to the Supreme Court. In the hands of conservative activists, immediate appeal to the Supreme Court has been a potent weapon for deregulating campaign finance law and gutting the Voting Rights Act. Since John Roberts became Chief Justice nearly ten years ago, almost every Term has featured a major election law case coming by direct appeal. And more are on their way.
That’s why it is significant that the Supreme Court this week agreed to hearShapiro v. Mack, a case concerning the circumstances in which a single federal district court judge may refuse to convene a three-judge court. In Shapiro, a constitutional challenge to congressional districting by the State of Maryland, the plaintiffs argued that the state’s congressional districts were so badly gerrymandered that they violated the Constitution. The district court disagreed, finding that the case did not warrant a three-judge court. Next Term, the Justices will decide whether the case should have been heard by three judges instead of one. While Shapiro raises only a narrow question of procedure under the Three-Judge Court Act, the consequences are significant.

Cop Turned Law Prof on what went wrong in McKinney

Former policeman now University of South Carolina law professor Seth Stoughton paints two vision of the policeman: the Guardian and the Warrior.
- gwc

A Former Cop On What Went Wrong In McKinney

by Seth Stoughton

He thanks the videographer for returning the flashlight, then listens for a few seconds as the kids around him try to explain who was and was not involved in a prior incident. “Okay, guys, I appreciate that,” the as-yet-unidentified officer says. He responds to their concerns—that the police had detained the wrong people—by saying, “Okay, that’s what I’m saying. They’re free to go.” While not casual, the officer is composed. His tone is friendly and professional as he engages with the kids.

Seconds later, another officer, Corporal Eric Casebolt, is shown interacting with some of the same kids. His angry tone and aggressive attitude stand in marked contrast to the first officer in the video. “Get on the ground,” he commands sharply while pulling on a young man’s wrist in a way that looks like he’s trying to force the man to the ground with a painful joint manipulation (technically a supinating wrist lock or, for martial arts enthusiasts, kote gaeshi).

When that proves ineffective, he grabs the back of the young man’s head and shoves him down. “I told you to stay,” he yells, pointing a large metal flashlight at someone off camera. “Get your asses down on the ground.” Like the first officer, he lectures some of the kids about running from the police, but he takes a very different approach. “Don’t make me fucking run around here with thirty pounds of god-damned gear on in the sun because you want to screw around out here.” He is anything but composed, calm or professional

Thursday, June 11, 2015

Post-9/11 Torture at CIA “Black Sites” — Physicians and Lawyers Working Together — NEJM

Rather than reporting to their parole officers the two legal architects of the rationalization of torture by the U.S. post 9/11 report to their jobs at the United States Court of Appeals for the Ninth Circuit, and the University of California School of Law in Berkeley.  Where does principal culpability lie for waterboarding and "rectal feeding" immunized by a President's reliance on the advice of Jay Bybee and John Yoo?  Protected by doctrines of legal immunity and the deference showed to high officials, neither has been disciplined or held liable for torture.  Were they incompetent? Malicious? So caught up in the post 9/11 fear that their powers of ratiocination eroded?  Sincere patriots convinced that "tough measures" were needed to protect the nation? - gwc

Post-9/11 Torture at CIA “Black Sites” — Physicians and Lawyers Working Together — NEJM

by G.J. Annas and Sondra S. Crosby

Department of Health Law, Bioethics, and Human Rights, Boston University School of Public Health (G.J.A., S.S.C.), and the Department of Medicine, Boston University School of Medicine (S.S.C.)

Medical professionals, primarily private contractors, filled four basic roles at the [CIA] black sites: clearing terrorist suspects as “medically fit” for torture; monitoring torture to prevent death and treat injuries; developing novel torture methods; and actually torturing prisoners. All these actions were taken only after CIA and U.S. Department of Justice attorneys assured the medical professionals that they had immunity from prosecution and would not be held legally responsible for violating U.S. and international law against torture as long as they used the techniques approved in legal memos (since withdrawn) written to justify their actions.1 Lawyers agreed to provide immunity assurances that specific torture techniques were legal “enhanced interrogation” methods only if the physicians assured them that they would be present to prevent permanent harm to prisoners. The CIA opened more than a dozen black sites around the world after 9/11, in which at least 117 prisoners were held; 39 of these prisoners were subjected to one or more torture techniques.1

Wednesday, June 10, 2015

The Civil Rights Act of 1964 and 'Legislating Morality': On Conscience, Prejudice, and Whether 'Stateways' Can Change 'Folkways' by Linda C. McClain :: SSRN

The Civil Rights Act of 1964 and 'Legislating Morality': On Conscience, Prejudice, and Whether 'Stateways' Can Change 'Folkways' by Linda C. McClain :: SSRN

by Linda McClain (Boston University Law School)


Influential studies, from the 1940s and 1950s, of the problem of prejudice and how to remedy it challenged the famous assertion of nineteenth-century sociologist William Graham Sumner that “stateways don’t change folkways,” and its modern counterparts, “you cannot legislate against prejudice” or “you cannot legislate morality.” Social scientists countered that, although people might initially protest, they would welcome a federal antidiscrimination law that aligned with conscience and closed the gap between American ideals and prejudice, creating new “folkways.” Using examples from the contexts of public accommodations, education, and employment, this Article examines similar arguments made about conscience and “legislating morality” in debates about the Civil Rights Act of 1964 (the “CRA”). Proponents argued that the national conscience demanded such a law because discrimination posed a moral crisis. Proponents and opponents of the CRA differed sharply on the role of federal law in addressing prejudice and discrimination. While proponents recognized the limits of what law could achieve, they argued that the CRA would remove artificial barriers created by segregation that constrained normal or natural human interaction. 

Opponents defended segregation as natural, Biblical, and part of the created order and warned that the CRA would usher in a dangerous and forced racial intermingling and line-crossing, particularly in marriage. Similar to the social scientists of the late 1940s and 1950s, supporters or the CRA appealed to experience with local and state antidiscrimination law and the World War II-era Fair Employment Practice Committee. The Article concludes with reflections on the present-day implications of this earlier “legislating morality” debate for controversies over LGBT rights and the evident clash between conscience, or religious liberty, on the one hand, and antidiscrimination law and marriage equality, on the other. This Article is part of a symposium, “The Civil Rights Act of 1964 at 50: Past, Present, and Future.

The Rule of Law Ascends ... in China? | Fast Forward | OZY

The Rule of Law Ascends ... in China? | Fast Forward | OZY

by Steven Butler

Now here’s a first-class oxymoron: the rule of law — under the leadership of China’s Communist Party. Are the laws, duly passed and enacted, running the show? Or is the country’s government sticking its nose into everything and guiding the outcome?

No matter how you parse the question, one thing’s for sure in China: Courts of law are increasingly stepping out of the shadows to play a more prominent role regulating Chinese society by settling disputes, with landmark cases aimed at enforcing environmental law, checking the abuse of government power and just figuring out how to split up property in messy divorce cases. And more of what they do is on public record, making big areas of law more transparent. Instead of lodging a petition with the government, says Beijing lawyer Wei Shilin, the Chinese are increasingly taking their complaints to a judge, and the courts are often asked to weigh in on the complicated issues thrown up by the rapid changes in this society.
Read more: The Rule of Law Ascends ... in China? | Fast Forward | OZY 

Tuesday, June 9, 2015

Housing Apartheid, American Style - NYTimes.com

Housing Apartheid, American Style - NYTimes.com

Editorial, May 16, 2015

The riots that erupted in Baltimore last month were reminiscent of those that consumed cities all over the country during the 1960s. This rage and unrest was thoroughly explained five decades ago by President Lyndon Johnson’s National Advisory Commission on Civil Disorders, also known as the Kerner Commission. The commission’s report was released in 1968 — the year that the assassination of the Rev. Dr. Martin Luther King Jr. touched off riots in 125 cities — and contains the most candid indictment of racism and segregation seen in such a document, before or since.
The commission told white Americans what black citizens already knew: that the country was “moving toward two societies, one black, one white — separate and unequal.” It linked the devastating riots that consumed Detroit and Newark in 1967 to residential segregation that had been sustained and made worse by federal policies that concentrated poor black citizens in ghettos. It also said that discrimination and segregation had become a threat to “the future of every American.”
Read more

Friday, June 5, 2015

NJ Summer Hiring Plateaus Again, Despite Some Signs of Life | New Jersey Law Journal

Summer Hiring Plateaus Again, Despite Some Signs of Life | New Jersey Law Journal

by David Gialanella

Summer associate hiring in New Jersey, which already plateaued once post-recession at levels far below that of the boom years, has flatlined again at an even lower level.
The 69 summer associates hired to 17 bellwether firms and branches was essentially flat, though with three more hires than last year's 66 total, the number does represent a 4.5 percent increase.
With that increase came an uptick in the average hires per firm, to 4.06 from 3.88. The average number of hires was 5.19 in 2013 and 6.53 in 2012.
The number of firms with three or more hires, however, shrank to 65 percent—and has receded each year for at least the past four, from 71 percent in 2014, 81 percent in 2013 and 93 percent in 2012.
"I think there are less summer associate positions, and I think everyone knows that," said James Leipold, executive director of the National Association for Law Placement (NALP). "Certainly there are fewer of these than there were five years ago."
The trend in New Jersey has been mostly a downward one. A decade ago, the 20 most active firms and branches in the state made a total of 148 summer hires, and eclipsed the 140-associate mark every year for the next five years. Average hires per firm met or eclipsed seven each year.
After 2010, firms began scaling back or jettisoning their programs.
The same 17 firms included in this year's survey made a total of 91 total hires in 2011, 98 in 2012, 83 in 2013 and 66 last year.

Wednesday, June 3, 2015

Employer-Sponsored Insurance Remains Stable While Uninsurance Drops Under The ACA


Moderate conservatives   like Senators Susan Collins (R-Maine) and Joe Manchin (D-WVA)  assert  that the Affordable Care Act's definition of full time employment as 25 hours/week would drive large employers to cut workers hours rather than insure them.  Introducing her "Forty hours is full-time" bill Collins called on the Bangor Public library leader to claim they would have to cut hours or lay people off.  But it is the big picture not the press conference and photo-op that tells the story.  The Kaiser Family Foundation has the details - and the news is good.  Employer-sponsored health insurance is up, not down.  Of particular importance is the drop in the uninsured rate among low wage employees of small companies - which are not required to offer employer-sponsored insurance.  - gwc

Employer-Sponsored Insurance Remains Stable While Uninsurance Drops Under The ACA

by Adele Schartzer, et al.

Despite concerns that the changes introduced under the Affordable Care Act (ACA) would lead to a decline in employer-sponsored insurance (ESI) coverage, theavailable evidence continues to show no changes in ESI offer rates, take-up rates, or overall ESI coverage for workers under the ACA.

In earlier work, we reported that ESI offer rates, take-up rates, and ESI coverage held steady across income levels and firm sizes between June 2013 and September 2014, a period spanning the implementation of the ACA’s health insurance Marketplaces and Medicaid expansions that followed a long trend of declining ESI rates. An updated analysis shows those trends held through early 2015, after a full year of experience for employers and workers (Figure 1). Coverage, offer, and take-up rates were stable between June 2013 and March 2015 for workers in both small and large firms as well as for workers with higher and lower incomes. Employer-sponsored insurance coverage also remained unchanged among all nonelderly adults from June 2013 through March 2015.
Even as ESI rates have held steady for workers, the rate of uninsurance among nonelderly workers declined 5.9 percentage points between June 2013 and March 2015 (Figure 2) as new coverage options through the Marketplaces and Medicaid expansions became available under the ACA, dropping from 13.8 to 7.8 percent (data not shown). These parallel findings of steady ESI rates with decreasing uninsurance among workers suggest that the ACA coverage provisions are not displacing ESI but instead providing new coverage to previously uninsured workers.
As an example, the declines were particularly pronounced among lower-income workers at small firms, where there was a 15.6 percentage-point decline in uninsurance, dropping from 40.0 percent to 24.4 percent (data not shown). Before the ACA, small firms with predominately low-wage employees were much less likely to offer coverage than larger, higher-wage firms. Lower-income workers at large firms also experienced a significant decline in uninsurance (9.1 percentage points), though with 12.0 percent uninsurance in March 2015 these workers remain significantly more likely to have insurance coverage than lower-income workers at small firms (data not shown).

Monday, June 1, 2015

The fall and rise of lawyers - CNN.com

When I started out as a self-employed lawyer I pretty quickly developed a practice that enabled me to support myself, and, soon, a family.  The bread and butter was auto accidents and workers compensation.  Cars had no seat belts, manual brakes, and were heavy with steel.  Many factories were dangerous - there was smoke in the air and you couldn't make yourself understood without yelling in someone's ear.  Today the factories are gone or employ few. - gwc

The fall and rise of lawyers - CNN.com

by Benjamin Barton

(CNN)The American legal profession has faced a tsunami of bad news since 2008. White-shoe, corporate law firms have facedwaves of layoffs or even shuttered their doors. While the very top firms are rolling again, the 50 years of explosive growth that started in the 1960s are now a memory.
But at least corporate lawyers have had recent glory days. Solo practitioners, the largest single group of American lawyers and the heart and soul of the profession, have struggled for a quarter of a century.
Since the 1960s the IRS has collected and published income levels for all American lawyers filing as solo practitioners. In 1988, solo practitioners earned an inflation-adjusted $70,747. By 2012, earnings had fallen to $49,130, a 30% decrease in real income. And note, $49,130 is not the starting salary for these lawyers. It is the average earnings of all 354,000 lawyers who filed as solo practitioners that year.