Saturday, October 31, 2015

Arbitration Everywhere, Stacking the Deck of Justice - The New York Times

As I prepare to go to teach American tort law in China I look wistfully at my explanations of the roles of judge and jury as characteristic of our system of justice.  Industry has been very successful at reducing jury trials.  Fewer civil cases than ever are tried.  But now with the help of the United States Supreme Court they have taken a giant step.  Through the thin consent of the shrink-wrap, now the quick click contract of adhesion they have removed themselves from courtroom challenges by disappointed customers and employees. - gwc

Arbitration Everywhere, Stacking the Deck of Justice - The New York Times

On Page 5 of a credit card contract used by American Express, beneath an explainer on interest rates and late fees, past the details about annual membership, is a clause that most customers probably miss. If cardholders have a problem with their account, American Express explains, the company “may elect to resolve any claim by individual arbitration.”

Those nine words are at the center of a far-reaching power play orchestrated by American corporations, an investigation by The New York Times has found.

By inserting individual arbitration clauses into a soaring number of consumer and employment contracts, companies like American Express devised a way to circumvent the courts and bar people from joining together in class-action lawsuits, realistically the only tool citizens have to fight illegal or deceitful business practices.

Wednesday, October 28, 2015

Biomarkers, Concussions, and the Duty of Care //TortsProf Blog

TortsProf Blog

Betsy Grey & Gary Marchant have posted to SSRN Biomarkers, Concussions, and the Duty of Care.  The abstract provides:
The United States is currently facing a “concussion epidemic.”  Concussions, also known as mild traumatic brain injuries, have increased in numerous settings, including transportation accidents, military combat, workplace injuries, domestic abuse, falls, and sports.    The epidemic imposes huge costs on society.   At the same time, our understanding of the injury remains limited. Currently, no proven way exists to physiologically detect concussion risk or damage.   Determining whether a concussion has occurred and been resolved remains largely a clinical diagnosis, relying mostly on self-reported symptoms.   Our knowledge of long term implications of repetitive concussions is also limited.  Science is racing to develop objective measures, or biomarkers, of concussive injury that will tell us who is more likely than not to be susceptible to harm and the extent of harm they may have already suffered. The availability of biomarkers will lead to a deeper understanding of changes to the brain that occur in a concussion and enable us to trace back earlier into what we think of as a diseased state. 

These scientific developments will have enormous implications for questions of risk and loss distribution in society.  In particular, they portend a major reexamination of fundamental tort issues of duty, breach, causation, and fault allocation.  Applying the developing research to the legal landscape will shed light on duties, as well as causal issues,  and may help substantiate latent injury claims.  This article examines those questions in the context of youth sports.  The development of biomarkers will modify responsibilities for mitigating risks, screening and monitoring players, and the ability of the player to assume risks, as well as implicate privacy interests.  In general, the development of these biomarkers will shift responsibilities in the diagnosis and management of concussions, as well as long term injuries, to those most directly involved in the player’s participation.

How 4 Federal Lawyers Paved the Way to Kill Osama bin Laden - The New York Times

How 4 Federal Lawyers Paved the Way to Kill Osama bin Laden - The New York Times

by Charlie Savage

WASHINGTON — Weeks before President Obama ordered the raid on Osama bin Laden’s compound in May 2011, four administration lawyers hammered out rationales intended to overcome any legal obstacles — and made it all but inevitable that Navy SEALs would kill the fugitive Qaeda leader, not capture him.
Stretching sparse precedents, the lawyers worked in intense secrecy. Fearing leaks, the White House would not let them consult aides or even the administration’s top lawyer, Attorney General Eric H. Holder Jr. They did their own research, wrote memos on highly secure laptops and traded drafts hand-delivered by trusted couriers.
The legal analysis offered the administration wide flexibility to send ground forces onto Pakistani soil without the country’s consent, to explicitly authorize a lethal mission, to delay telling Congress until afterward, and to bury a wartime enemy at sea. By the end, one official said, the lawyers concluded that there was “clear and ample authority for the use of lethal force under U.S. and international law.”

Jury trials for repeat DUI? NJ Supreme Court hears argument ?? NJ Law Journal

Lawyers argued before the New Jersey Supreme Court on Oct. 26 over whether a driver charged with a third or subsequent drunken driving offense is entitled to a jury trial because of the potential financial and penal consequences.
The court is considering the appeal of James Denelsbeck, who is facing a mandatory 180-day jail term after being charged with his fourth DWI violation and whose demand for a jury trial was denied by a municipal court judge, a Superior Court judge and the Appellate Division.
The Supreme Court agreed to hear the appeal in State v. Denelsbeck despite the fact that the Appellate Division ruling was unpublished and there was no dissent.
Lawyers representing Denelsbeck, the American Civil Liberties Union of New Jersey and the New Jersey State Bar Association urged the court to allow for jury trials for third-time and subsequent offenders because of the onerousness of today's jail time requirements and fines, penalties and surcharges.
A third offense calls for a 180-day jail term, although 90 days of that can be served in an in-patient rehabilitation facility. The offender loses his or her license for 10 years and must have an ignition interlock device—which requires a driver to blow into a machine that can detect alcohol—installed in any car he or she uses. Fines, costs and penalties can amount to thousands of dollars a year.
Denelsbeck was charged with his fourth offense in Ventnor on Oct. 5, 2011, according to court documents.
Denelsbeck's attorney, Point Pleasant solo John Menzel, told the justices during arguments that New Jersey has become unlike other states, which he said routinely allow for jury trials for multiple drunken driving offenses.
New Jersey, he said, has done away with allowing third-time offenders to serve anything less than a 180-day sentence, and he argued that the option of in-patient rehab should not be considered a reduction in jail time.
"It's nothing more than a venue change," he said. "It's still confinement."
Menzel said the Legislature purposefully designed the mandatory 180-day DWI sentence to butt up against the threshold for triggering a jury trial.
The U.S. Supreme Court ruled in the 1968 case Duncan v. Louisiana that the 14th Amendment presumed that defendants facing six months or more in jail would be entitled to jury trials.
"Does legislative intent matter?" Justice Lee Solomon asked.
"You always have to look at legislative intent," Menzel said, adding that the DWI statutes now require "not less than" a 180-day term of incarceration.
"You don't get that kind of sentence with a third- or fourth-degree crime," he said.
Menzel said the court also should consider the requirement for third-time offenders to spend two days at an Intoxicated Driver Resource Center. In some cases, offenders are required to spend the full 48 hours on-site.
"That's 182 days," he said. "The Legislature has pushed confinement to its limits."
Justice Barry Albin asked whether any other state has enacted such stiff DWI penalties for multiple offenders without allowing for jury trials.
"I can't think of one," Menzel said. "The Legislature has laid on penalty after penalty, consequence after consequence. In terms of penalties, we are at the top of the food chain."
Chief Justice Stuart Rabner noted that if jury trials are allowed in such cases, there will be an impact on the court system. He asked Menzel how the cases should be handled.
Those cases should not be assigned to an "already-overburdened" Superior Court, Menzel replied. Instead, he said, the jury trials should be conducted by presiding municipal court judges, who have the expertise, and the physical facilities, to handle DWI jury trials.
"They have the specialized knowledge and training," he said.
Alexander Shalom, a staff attorney for the ACLU-NJ, urged the court to allow for jury trials because of the seriousness of the penalties.
"There are real-time consequences," Shalom said. "There is the current view of mandatory minimums" and there is the real-world effect of financial penalties.
Cherry Hill solo Jeffrey Evan Gold represented the bar association.
Even defendants charged with fourth-degree crimes, which carry the presumption of non-incarceration, are allowed jury trials, he said.
The realities of DWI cases have dramatically been altered in recent years, Gold said.
"There used to be a no-jail option. Today that's not possible," he said. "And I'm not even talking about the financial side of it."
Rabner asked what Gold thought the Legislature might do if the court rules in Denelsbeck's favor.
Gold said he believed the Legislature would move to make later DWI charges indictable offenses so that jail time can be increased.
"They might ratchet up the penalties, too," Albin said.
"The Legislature should not be able to rob [DWI defendants] of the right to a jury trial," Gold said.
The court rejected the push for jury trials in DWI cases in its 1990 ruling in State v. Hamm. There, the court reasoned that the Legislature, in enacting the statutes setting forth DWI penalties, said driving while intoxicated was a motor vehicle violation and not a criminal offense, even though an offender may face time behind bars.
That ruling came a year after the U.S. Supreme Court ruled in Blanton v. Las Vegas that DWI offenders facing jail terms of six months or less are not guaranteed jury trials.
Assistant Atlantic County prosecutor Brett Yore said during oral arguments in Denelsbeck that Hamm remains good law since jail time for DWI offenses has not passed the 180-day mark.
He urged the court to reject the idea that the ignition interlock requirement be considered because of the associated costs.
"Ignition interlock is remedial, not punitive," Yore said. "The requirement has never been to punish, but to protect the public."
But Albin challenged that notion.
"Do you think the word 'remedial' takes out the sting?" he asked. "You can argue that anything is remedial."
Yore said the DWI statutes are still remedial because of a defendant's option of spending 90 days in an in-patient facility.
Not if the person can't pay for it, Albin said.
Deputy Attorney General Sarah Lichter also urged the court to avoid creating a right to jury trials for multiple offenders.
Lichter said prosecutors have strictly adhered to the 180-day sentencing limit in DWI cases.
"We've never pushed over that line," Lichter said, adding that the Legislature has never seriously considered increasing that maximum jail time.
"It's still considered a petty offense," she said. "I'm not trivializing the penalties, but the state hasn't crossed the line."
Denelsbeck demanded a jury trial on the grounds that his aggregate term could exceed 180 days, despite the assertion by the municipal prosecutor that no additional jail time would be sought.
The Appellate Division rejected Denelsbeck's appeal in an eight-paragraph ruling.
"Despite the fact that the Legislature regards DWI as a profound social problem, it has yet to impose the full force of law on that offense that would denote a social evaluation that DWI is a 'crime' or an offense that equates with the need of trial by jury," Judges Carmen Alvarez and Harry Carroll said.
The state has long opposed any efforts to move DWI cases out of municipal court, where cases are decided by a judge, to the Superior Court, in large part to avoid the expenses associated with jury trials.
The state Administrative Office of the Courts has not studied the potential impact that a ruling in Denelsbeck's favor could carry, said AOC spokeswoman Winnie Comfort.
Lichter estimated that a ruling for Denelsbeck could lead to several hundred new trials per year statewide.
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Saturday, October 24, 2015

Pope Francis addresses Synod of Bishops at conclusion Vatican Radio

Pope Francis waves as he leaves the Synod hall at the end of the XIV Ordinary General Assembly of the Synod of Bishops on the Family - AP

Every legal system struggles with a basic problem: melding law and justice; command and inspiration.  Pope Francis recognizes such issues. - gwc

Audio commentary by Fr. Russell Pollitt, S.J.

Pope Francis addresses Synod of Bishops at conclusion Vatican Radio

It was also about laying bare the closed hearts which frequently hide even behind the Church’s teachings or good intentions, in order to sit in the chair of Moses and judge, sometimes with superiority and superficiality, difficult cases and wounded families.
***The Synod experience also made us better realize that the true defenders of doctrine are not those who uphold its letter, but its spirit; not ideas but people; not formulae but the gratuitousness of God’s love and forgiveness. This is in no way to detract from the importance of formulae, laws and divine commandments, but rather to exalt the greatness of the true God, who does not treat us according to our merits or even according to our works but solely according to the boundless generosity of his Mercy (cf. Rom 3:21-30; Ps 129; Lk 11:37-54). It does have to do with overcoming the recurring temptations of the elder brother (cf. Lk 15:25-32) and the jealous labourers (cf. Mt 20:1-16). Indeed, it means upholding all the more the laws and commandments which were made for man and not vice versa (cf. Mk 2:27).

In this sense, the necessary human repentance, works and efforts take on a deeper meaning, not as the price of that salvation freely won for us by Christ on the cross, but as a response to the One who loved us first and saved us at the cost of his innocent blood, while we were still sinners (cf. Rom 5:6).

F.B.I. Chief Links Scrutiny of Police With Rise in Violent Crime - The New York Times

What caused the crime rate drop is notoriously recalcitrant to analysis.  Was it mass incarceration? or Are jails and prisons incubators of crime? Was it lead in gasoline?  Aging population?  Community policing?  Broken windows strategies? Massive stop and frisk?  And what about the resentment of the police?  Has that fueled anger that led to increased attacks?  Have attacks increased?  Are police hot-headed and thin skinned? Is there a YouTube effect?  Is driving while Black an institutionalized form of racial harassment? Much data suggests so.  But overall data is sparse and causal inferences suspect.  What seems certain is that people will hold on to their personal preferred narratives.  - gwc

F.B.I. Chief Links Scrutiny of Police With Rise in Violent Crime - The New York Times

by Michael S. Schmitt and Matt Apuzzo

CHICAGO — The F.B.I. director, James B. Comey, said on Friday that the additional scrutiny and criticism of police officers in the wake of highly publicized episodes of police brutality may have led to an increase in violent crime in some cities as officers have become less aggressive.
With his remarks, Mr. Comey lent the prestige of the F.B.I., the nation’s most prominent law enforcement agency, to a theory that is far from settled: that the increased attention on the police has made officers less aggressive and emboldened criminals. But he acknowledged that there is so far no data to back up his assertion and that it may be just one of many factors that are contributing to the rise in crime, like cheaper drugs and an increase in criminals who are being released from prison.
“I don’t know whether that explains it entirely, but I do have a strong sense that some part of the explanation is a chill wind that has blown through American law enforcement over the last year,” Mr. Comey said in a speech at the University of Chicago Law School.
Mr. Comey’s remarks caught officials by surprise at the Justice Department, where his views are not shared at the top levels. Holding the police accountable for civil rights violations has been a top priority at the department in recent years, and some senior officials do not believe that scrutiny of police officers has led to an increase in crime. While the department had no immediate comment on Friday, several officials privately fumed at Mr. Comey’s suggestion.
Among the nation’s law enforcement officials, there is sharp disagreement over whether there is any credence to the so-called Ferguson effect, which refers to the protests that erupted in the summer of 2014 in Ferguson, Mo., over a police shooting.