Torts Today

Diving into the wreck: BP & Kenneth Feinberg's Gulf Coast Gambit

2012-02-25T12:55:00.002-05:00

Kenneth Feinberg

The imminent start of the first phase of the liability trial regarding the BP Gulf of Mexico oil spill is an appropriate occasion to post this abstract and a link to the text of my new article. - GWC

Diving into the wreck: BP and Kenneth Feinberg’s Gulf Coast Gambit
17 Roger Williams University Law Review 137 (2012)

by George W. Conk
Abstract
The 1990 Oil Pollution Act mandate - that a party “responsible” for an oil spill establish a “procedure” to pay interim damages - has largely removed the courts from the process of determining scope of liability and turned it over to the private ordering of the claims bureau established by the responsible parties designated by the President under the OPA.

BP put its “procedure” in the hands of a lawyer of solomonic reputation - Kenneth Feinberg. His broad settlement authority was designed to produce both prompt compensation for current losses (without prejudice to future claims) and early settlements of claims for any future losses. Through its Gulf Coast Claims Facility BP - making interim payments - has had a nearly free hand in determining the extent of its liability under the OPA. Though plaintiffs lawyers have moved to “supervise” the process through the MDL, neither a negotiated grid nor any court ruling has defined the scope of liability.

BP’s private claims resolution process is almost entirely unregulated. Only after months of jaw-boning by Gulf Coast Attorneys General and the U.S. Attorney General did BP agree to be audited. No regulations govern responsible parties who establish a “procedure”. The GCCF’s allocations are often impenetrable. BP’s GCCF can be described as the pseudo-fund model for mass tort claims resolution. Though its name suggests an independent fund, the GCCF is in fact merely BP’s statutorily compelled mechanism for satisfying economic loss and clean-up claims. In the absence of either regulatory guidance or court rulings on scope of liability the settlement parameters are indistinct to claimants. Even BP is uneasy because Feinberg’s settlement offers under the OPA go well beyond the narrow parameters of maritime courts which in spill claims have historically denied compensation to all in the supply chain except fishermen and those who suffered property damage.

The executive branch should examine the OPA’s regulatory gap. No regulations govern the manner in which a solvent polluter meets its statutory clean-up and compensation responsibilities. There is no liability guidance, no audit, no reporting, no monitoring of the company’s ability to meet its obligations, no review of its success in meeting its obligations. If the executive branch does not take this up, Congress in its oversight capacity should do so.
***
Postscript: my article does not discuss the August 26 ruling by Judge Barbier that touched on the scope of liability issue. He ruled that liability under maritime law is limited to fishermen and those who suffered property damage or personal injury. However, he suggests that the scope of liability will be broader under the Oil Pollution Act.

The block quote below gives some of the flavor. - GWC

[The Court notes that OPA does not expressly require “proximate cause,” but rather only that the loss is “due to” or “resulting from” the oil spill. While the Court need not define the precise contours of OPA causation at this time, it is worth noting that during oral argument both counsel for BP and the P(laintiffs) S(teering) (Committee) conceded that OPA causation may lie somewhere between traditional “proximate cause” and simple “but for” causation. ]
(citing CSX v. McBride, U.S. 2011)]

Black at Stuyvesant High — One Girl’s Experience - NYTimes.com

2012-02-25T11:22:00.000-05:00

I wonder if the test for admission to the Mandarinate was the first standardized test in the world? - GWC
Black at Stuyvesant High — One Girl’s Experience - NYTimes.com: by Fernanda Santos
"Rudi-Ann Miller, a 17-year-old senior who came to New York from Jamaica and likes to style her hair in a bun, slick and straight, like the ballerina she once dreamed of becoming.

“The Asian kids, they’re just everywhere,” she said.

When the bell rings and the school’s 3,295 students spill out of classrooms into the maze of hallways, escalators and stairs like ants in a farm, blacks stand out because they are so rare. Rudi was one of 64 black students four years ago when she entered Stuyvesant, long considered New York City’s flagship public school. She is now one of 40.

Asians, on the other hand, make up 72.5 percent of Stuyvesant’s student body (they are 13.7 percent of the city’s overall public school population), a staggering increase from 1970, when they were 6 percent of Stuyvesant students, according to state enrollment statistics. Back then, white students made up 79 percent of Stuyvesant’s enrollment; this year, they are 24 percent, and 14.9 percent systemwide."

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‘Neither Admit Nor Deny’ Settlements Draw Judges’ Scrutiny - NYTimes.com

2012-02-25T11:09:00.000-05:00

‘Neither Admit Nor Deny’ Settlements Draw Judges’ Scrutiny - NYTimes.com:

by Edward Wyatt

"An S.E.C. commissioner, Luis A. Aguilar, told a group of securities lawyers that a recent attempt to tighten the agency’s policy of allowing a company to settle a fraud case while neither admitting nor denying any wrongdoing “applies in so few situations, it needs to be revised to be more useful and effective.”"

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Opinion analysis: Court gives police officers qualified immunity : SCOTUSblog

2012-02-24T16:37:00.000-05:00

Opinion analysis: Court gives police officers qualified immunity : SCOTUSblog: "A Los Angeles sheriff’s detective and his supervisor may have erred in executing a search warrant that lacked probable cause, but they were not “plainly incompetent” so as to be denied qualified immunity. That was the Court’s holding yesterday in Messerschmidt v. Millender. The Court’s divided ruling declined to make any obvious sweeping revisions to its nearly thirty-year-old jurisprudence regarding immunity for officers who execute warrants lacking probable cause, although Orin Kerr here suggests at least one aspect in which the opinion could prove significant."

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CPRBlog: Can Corporations Violate Human Rights? In Kiobel v. Royal Dutch Petroleum, the Supreme Court May Say Yes ... or No

2012-02-23T19:50:00.000-05:00

On February 28 the Supreme Court will hear argument in Kobel. The 2d Circuit Court of Appeals held that a corporation cannot be a human rights violator because the Alien Tort statute permits only the sort of claims recognized under customary international law. For full coverage see Scotus Blog. - GWC

CPRBlog: Can Corporations Violate Human Rights? In <i>Kiobel v. Royal Dutch Petroleum</i>, the Supreme Court May Say Yes ... or No: "For over fifty years, Shell has extracted oil from Nigeria, causing great harm to the environment and people of the Niger delta. The Ogoni people living in the delta protested Shell’s operations, and in response the Nigerian government harshly oppressed them. Most infamously, in 1995 it executed the author Ken Saro-Wiwa, together with eight other leaders of the protests.

Esther Kiobel, the widow of one of the executed men, as well as other affected Ogoni, sued Shell in U.S. federal court, claiming that it aided and abetted the Nigerian government in its violations of human rights law. The plaintiffs relied on the Alien Tort Statute (ATS), a law enacted by the First Congress, in 1789, which gives federal courts jurisdiction over claims by aliens arising from torts committed in violation of international law."

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CPRBlog: Mardi Gras, Check. BP "Trial of the Century" Here We Come.

2012-02-22T11:44:00.005-05:00

Robert Verchick, Center for Progressive Reform blogger, has some FAQ on the upcoming BP trial. - GWC

CPRBlog: Mardi Gras, Check. BP "Trial of the Century" Here We Come.: by Robert Verchick

"Next week, squadrons of lawyers, journalists, petroleum engineers, and fisher folk are scheduled to descend on New Orleans, squeeze into a federal courtroom, and begin on Monday what the media have modestly called, “The Trial of the Century,” otherwise known as the BP Oil Spill litigation.

Whatever the rest of the century holds, it seems fair to say that this legal dispute, if it does not settle, will be the most complicated environmental trial anyone has ever seen. With a thousand plaintiffs, a galaxy of witnesses, and 20,000 exhibits, this spectacular has more moving parts than a Madonna half-time show. As the trial unfolds, I’ll provide you with some occasional shrimp-boots-on-the-ground legal blogging."

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Deepwater Horizon trial may hold many twists for BP - FT.com

2012-02-22T11:19:00.000-05:00

Deepwater Horizon trial may hold many twists for BP - FT.com: by Ed Crooks & Sylvia Pfeiffer (free registration required)

"At 8am on Monday February 27, the trial is due to start in the civil case over the 2010 Deepwater Horizon disaster in the Gulf of Mexico in which 11 men died.
Before then, however, there could still be several dramatic turns left in the largest and most complex litigation the US has seen for more than a decade, which will rule on who was to blame for the largest oil spill in US waters.
Talks are continuing between the parties – including BP, other companies involved in the disaster, the US government, and lawyers for roughly 120,000 civil plaintiffs – over possible pre-trial settlements."

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Legal claims can be served via Facebook, High Court judge rules - Telegraph

2012-02-21T21:37:00.000-05:00

Legal claims can now be served via Facebook in Britain, after a landmark ruling in the English High Court in AKO Capital, LLP v. TFS Derivatives Limited.

Legal claims can be served via Facebook, High Court judge rules - Telegraph:

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Justices to Hear Case on Affirmative Action in Higher Education - NYTimes.com

2012-02-21T11:53:00.001-05:00

Racial integration has been a government policy goal since Brown v. Board of Education. This case - Fisher v. Texas -could say Goodbye to all that. - GWC

Justices to Hear Case on Affirmative Action in Higher Education - NYTimes.com:

by Adam Liptak

" Students in the top 10 percent of Texas high schools are automatically admitted to the public university system. Ms. Fisher just missed that cutoff at her high school in Sugar Land, Tex. She sued in 2008, challenging the way the state allocated the remaining spots using a complicated system in which race plays an unquantified but significant role.

“There thus seem five votes — Roberts, Scalia, Kennedy, Thomas and Alito — to overrule Grutter and hold that affirmative action programs are unconstitutional,” Erwin Chemerinsky, dean of the law school at the University of California, Irvine, wrote in a recent book, “The Conservative Assault on the Constitution.”

Chief Justice John G. Roberts Jr. has been particularly skeptical of government programs that take account of race. “Racial balancing is not transformed from ‘patently unconstitutional’ to a compelling state interest simply by relabeling it ‘racial diversity,’ ” he wrote, for instance, in a 2007 decision limiting the use of race to achieve integration in public schools."

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Billions Of Dollars At Stake In BP Oil Spill Trial : NPR

2012-02-21T11:46:00.002-05:00

Billions Of Dollars At Stake In BP Oil Spill Trial : NPR: Trial on limitation and apportionment issues is set to begin next Monday - February 27, 2012. Like the first shell that comes your way the approach of trial concentrates the mind. Lawyer - focused on risk - talk settlement. - GWC

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Settlement Talks Pick Up Ahead of BP Oil Spill Trial - NYTimes.com

2012-02-20T22:21:00.000-05:00

Judge Carl J. Barbier

Settlement Talks Pick Up Ahead of BP Oil Spill Trial - NYTimes.com:
by John Schwartz

With the start of the high-profile trial set for next Monday, and the specter of potential liability that some experts have estimated at $40 billion, BP and other defendants are stepping up negotiations to end the litigation before Judge Carl J. Barbier of Federal District Court picks up his gavel.

“We are ready to settle, if we can do so on fair and reasonable terms,” Robert Dudley, BP’s chief executive, said this month during a conference call about the company’s earnings. “But we are preparing vigorously for trial.”

Charges from hundreds of civil cases from plaintiffs that include the United States government, state and local governments, and individuals and businesses have been consolidated in a federal courtroom here. Along with BP, defendants include Transocean, the owner of the Deepwater Horizon rig; Halliburton, the company that poured the concrete that lined the well; and Cameron International, which made the industry fail-safe device known as a blowout preventer.

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Jefferson County, Ala., Falls Off the Bankruptcy Cliff - NYTimes.com

2012-02-19T14:39:00.000-05:00

Is this divine punishment for Alabama's sins of slavery and segregation? If so the divine visited her wrath on victims, perpetrators, and bystanders alike. - GWC

Jefferson County, Ala., Falls Off the Bankruptcy Cliff - NYTimes.com: "ONE county jail here is so crowded that some inmates sleep on the floor, while the other county jail, a few miles down the road, sits empty.
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The Vulcan statue in Birmingham is patterned after the Roman god of the forge, reflecting the city's history as an iron and steel town.
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There is no money for the second one anymore.

The county roads here need paving, and the tax collector needs help.

There is no money for them, either.

There i"

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14th Amendment and Civil Rights Act 1866 DEBATES

2012-02-19T14:08:00.000-05:00

Civil Rights Act of 1866 DEBATE Senate-Congressional Globe, 39th Congress 474-481, January 29, 1866
"Civil Rights Act 1866 DEBATE, Senate, Cong Globe 39th Cong 569-578 (1 Feb 1866)"

14th Amendment Senate Debate
http://www.scribd.com/doc/82068260/14th-Amendment-Senate-DEBATE-Cong-Globe-39th-Cong-2890-2902-30-May-1866

http://www.scribd.com/doc/82068260/14th-Amendment-Senate-DEBATE-Cong-Globe-39th-Cong-2890-2902-30-May-1866

14th Amendment - House Debate
http://www.scribd.com/doc/82068253/14th-Amendment-House-DEBATE-Cong-Globe-39th-Cong-1151-1161-2-Mar-1866

http://www.scribd.com/doc/82068253/14th-Amendment-House-DEBATE-Cong-Globe-39th-Cong-1151-1161-2-Mar-1866
http://www.scribd.com/doc/82068251/14th-Amendment-House-DEBATE-Cong-Globe-39th-Cong-1115-1125-1-Mar-1866

http://www.scribd.com/doc/82068251/14th-Amendment-House-DEBATE-Cong-Globe-39th-Cong-1115-1125-1-Mar-1866
14th Amendment Congressional Debates

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NJ Supreme Court Limits Accountants' Liability

2012-02-17T08:08:00.001-05:00

Erasing a $38 million dollar judgment against KPMG, the state Supreme Court held Thursday that an accountant can't be held liable to third parties without specific knowledge — at the time the client relationship begins — that third parties will rely on its reports.

"An auditor is entitled to know at the outset the scope of the work it is being requested to perform and the concomitant risk it is being asked to assume," the Court said in a ruling that provides a welcome limitation of liability for the accounting industry in the state.

The justices, in Cast Art Industries v. KPMG, A-51/52-10, overturned the Appellate Division's holding that, under the Accountant Liability Act, accountants' knowledge of third-party reliance any time during their "engagement" with their client exposes them to liability.

Most BP plaintiffs may be ineligible for compensation | NOLA.com

2012-02-16T09:33:00.002-05:00

Malpractice? Sections 2713 and 2714 of the Oil Pollution Act of 1990 provides that claims shall "first be presented to the responsible party" - here BP Exploration's agent Gulf Coast Claims Facility - led by Kenneth Feinberg. Judge Barbier - who is managing the multi district litigation - will have to decide whether that provision is jurisdictional - a condition precedent to suit, or a procedural requirement that can be remedied or avoided.
In the B1 master complaint Order of August 26, 2011 the court held that presentment to the responsible party (BP, et al.) is a mandatory condition precedent to suit. While he ruled on the states' claims Judge Barbier deferred dealing with the defense motions to dismiss the claims of the massive number of plaintiffs who did not first apply to the GCCF. - GWC
Most BP plaintiffs may be ineligible for compensation | NOLA.com: "More than half of the 110,299 private claimants suing BP in the huge trial set to begin in federal court Feb. 27 have never filed with claims czar Kenneth Feinberg, calling into question whether they are eligible for compensation. That's according to numbers released by Feinberg to U.S. District Judge Carl Barbier on Wednesday. "

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BP Deepwater Horizon Securities Suit, Though Narrowed, Survives Dismissal Motion : The D & O Diary

2012-02-16T00:11:00.000-05:00

BP Deepwater Horizon Securities Suit, Though Narrowed, Survives Dismissal Motion : The D & O Diary:

by Kevin LaCroix

"In the wake of the disastrous April 2010 Deepwater Horizon oil spill, BP was hit with a wave of litigation from plaintiffs asserting claims of personal injury, wrongful death and property damage. The claimants also included BP shareholders raising allegations that they had been misled regarding BP safety efforts and processes. In a 129-page February 13, 2012 opinion (here), Southern District of Texas Judge Keith Ellison, while granting the defendants’ motion to dismiss certain of plaintiffs’ allegations, denied defendants’ motion to dismiss many of the allegations of BP investors who had purchased BP American Depositary Shares (ADS) on the New York Stock Exchange."

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Voyages>`·.¸¸.·´¯`·...¸><((((º>: Cod: grim assessment from NOAA

2012-02-14T01:03:00.000-05:00

Voyages>`·.¸¸.·´¯`·...¸><((((º>: Cod: grim assessment from NOAA:

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SawStop on Colbert Report!

2012-02-14T00:18:00.000-05:00

Steve Gass and SawStop were featured on last night's Colbert Report (2/13/12)!! He's ruining America, says Colbert's character by depriving us of our right to sacrifice our own fingers from those who would baby us by requiring SawStop technology.

It won't embed properly for me so HERE is the link and other good stuff from FineWoodworking

There is a ton of material - including links to the first plaintiff's verdict - upheld by the 1st Circuit, CPSC materials, and the famous hot dog video HERE
Steve Gass: "Steve Gass has a Ph.D. in physics and a dangerous hobby. An amateur woodworker, Gass cuts wood with table saws that spin almost 70 times a second. The saws' sharp, quickly spinning blades can chop off a finger; in fact, over 3,000 people a year lose fingers to table saws. One day in his workshop, Gass looked at his saw and wondered how quickly he could stop the blade in the event of accidental contact."

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BP Reports Stronger Q4 Earnings in 2011 - NYTimes.com

2012-02-08T09:31:00.000-05:00

BP crews looking for tarballs in the sand - 2010

It's morning in America on the Gulf Coast says British Petroleum. - GWC
BP Reports Stronger Q4 Earnings in 2011 - NYTimes.com: "HOUSTON — Less than two years ago, the British oil company BP was worried about its very survival as a seemingly unstoppable oil spill in the Gulf of Mexico threatened to destroy its finances and reputation."
"But on Tuesday, BP expressed renewed confidence in its future, reporting strong quarterly profits and raising its dividend to shareholders. The company also said it was eager to resolve billions of dollars in remaining private and government claims from the accident, whether through a settlement or in a trial scheduled to begin Feb. 27 in New Orleans. "
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Marriage Ban Violates Constitution, Court Rules - NYTimes.com

2012-02-07T14:06:00.000-05:00

The 9th Circuit Court of Appeals has voided as violative of Equal Protection Proposition 8 - the popular referendum which barred gay marriage in California. The Federal court struck the measure, which amended the state constitution, overturning a California Supreme Court decision affirming the right to marry on state constitutional grounds. California Governor Jerry Brown refused to defend the referendum first as Attorney General, and now as Governor.
The ruling is a narrow one. It centers on the fact that Prop. 8 took away a status which some California same-sex couples had already gained while same-sex marriage was recognized in California. Prop. 8 arbitrarily denied "equal dignity" to same sex married couples, the court concluded. - GWC

Marriage Ban Violates Constitution, Court Rules - NYTimes.com: "“Although the Constitution permits communities to enact most laws they believe to be desirable, it requires that there be at least a legitimate reason for the passage of a law that treats different people differently,” Judge Stephen Reinhardt wrote in the decision. “There was no such reason that Proposition 8 could have been enacted.”

“All that Proposition 8 accomplished was to take away from same sex-couples the right to be granted marriage licenses and thus legally to use the designation ‘marriage,” the judge wrote, adding: “Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gay men and lesbians in California.""

Lead counsel for plaintiffs are the odd couple: David Boies and Theodore Olson (as in Gore v. Harris)
Opinion in Perry v. Brown (in his official capacity)
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After a Delay, MF Global's Missing Money Is Traced - NYTimes.com

2012-02-06T18:28:00.000-05:00

After a Delay, MF Global's Missing Money Is Traced - NYTimes.com: "Investigators have determined what happened to nearly all of the customer money that disappeared from MF Global around the time of its bankruptcy last Oct. 31, but have not publicly disclosed their progress, fearing that doing so might cripple efforts to recover the cash and pursue potential wrongdoing, people briefed on the investigation said.

While authorities have traced hundreds of millions of dollars to banks, MF Global’s trading partners and even the firm’s securities customers, investigators remain uncertain about whether they can retrieve the money.

Some recipients were entitled to payouts from MF Global, which could make clawing back the money difficult. For instance, securities customers withdrawing their money as MF Global began to collapse were paid from accounts that belonged to futures clients, according to other people briefed on the matter."

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OTHERWISE: How Quinn Emmanuel Does it: Sugar-coated bills |

2012-02-06T00:45:00.000-05:00

Alternative billing by "America's largest business litigation firm". - GWC

OTHERWISE: How Quinn Emmanuel Does it: Sugar-coated bills |:

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In 2003 businessman identified foreclosure abuses

2012-02-05T13:19:00.002-05:00

Nye Lavalle

Unlike the many whistle blowers who are ignored - especially those whose rhetoric seems overheated to those used to the way business is done - Nye Lavalle hit the nail on the head and got a response. His charges of mortgage foreclosure fraud prompted Fannie Mae to undertake a rebuttal. The FNMA commissioned an analysis and report by the D.C. law firm Baker & Hostetler, LLP. The lawyers confirmed many of Lavalle's allegations, but Fannie Mae ignored their warnings, according to an account in today's Times by Gretchen Morgensen. In 2006 Baker & Hostetler concluded:

“It is axiomatic that the practice of submitting false pleadings and affidavits is unlawful...With his complaint, Mr. Lavalle has identified an issue that Fannie Mae needs to address promptly.”

But FNMA did not promptly address the issue. Of the seven deadly sins sloth and greed are most obviously implicated.

North River Piers

2012-02-04T16:43:00.003-05:00

Piers once lined the shores of Manhattan. Remember in U.S. v. Carroll Towing the court says that a barge had to be "drilled out" and the bargehand should have been there to help out? It probably was a barge tied to a pier like this. You can find these pictures - and many more of the North River piers in Manhattan - HERE.

the bulk cargo barge in Carroll was probably this size,
not a huge RR barge

stanchion on pier

Feds turn down request for new cod assessment | The Portland Press Herald / Maine Sunday Telegram

2012-02-04T16:34:00.000-05:00

Feds turn down request for new cod assessment | The Portland Press Herald / Maine Sunday Telegram: "BOSTON — The nation's oceans chief has turned down a request made first by Massachusetts Sen. John Kerry for a new assessment of the health of Gulf of Maine cod.

New data indicates cod is badly overfished, and fishermen now face ruinous cuts in their catch. The data have drawn skepticism from fishermen because they show a reversal of a recent, optimistic study.

In December, Kerry asked for a new cod assessment that fishermen can trust.

National Oceanic and Atmospheric Administration head Jane Lubchenco said this month that a new assessment can't be done in time for managers to make decisions for the May start of the fishing year.

She also said the agency doesn't yet have new data needed to move ahead. She assured Kerry she is committed to helping fishermen."

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CL&P Storm Credit to Total $140 - Ellington-Somers, CT Patch

2012-02-04T11:16:00.000-05:00

Kenneth Feinberg is reported to be an adviser to Connecticut Power and Light and to the state's Governor on administration of a refund due to customers of $140 each.

CL&P Storm Credit to Total $140 - Ellington-Somers, CT Patch:

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BP cannot hand share of clean-up costs to Halliburton, rules judge | Business | guardian.co.uk

2012-01-31T19:56:00.000-05:00

BP cannot hand share of clean-up costs to Halliburton, rules judge | Business | guardian.co.uk: "BP will not be able to hand off a share of the $40bn (£25.3bn) in clean-up costs and economic losses from the Gulf of Mexico oil disaster to Halliburton, a judge in New Orleans has ruled.

The decision, from US district judge Carl Barbier who will hear the main case for damages against BP next month, quashes the oil company's hopes of collecting a share of the clean-up costs from Halliburton.

A White House investigation found Halliburton had used flawed cement in constructing the BP well, leading to the April 2010 blow-out which killed 11 men on the Deepwater Horizon oil rig and spewed 4.9m barrels of crude into the Gulf.

However, Barbier wrote in his decision that BP must indemnify Halliburton from damage claims under the terms of its drilling contract. Halliburton is still on the hook for fines, however.

"BP is required to indemnify Halliburton for third-party compensatory claims that arise from pollution or contamination that did not originate from the property or equipment of Halliburton located above the surface of the land or water, even if Halliburton's gross negligence caused the pollution," Barbier wrote"

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Gulf shrimp harvest numbers are eagerly awaited | NOLA.com

2012-01-29T10:04:00.000-05:00

jumbo shrimp

It is hard to know how many fish there are in the sea. That and the need to achieve early settlement have driven BP's claims man Kenneth Feinberg to double his offer to shrimpers: BP will pay four times the 2010 loss - not twice - as initially offered. These preliminary numbers will have policy makers at BP's Gulf Coast Claims Facility scratching their heads - and fishermen and their their lawyers too. Settle or litigate? This piece from the Times Picayune shows how tricky it is to get reliable estimates of the once and future catch. - GWC
Gulf shrimp harvest numbers are eagerly awaited | NOLA.com:

"Rarely has quantifying Louisiana's annual shrimp harvest generated as much interest as it has this year, as scientists, shrimpers and even the general public nervously await news of how many shrimp were pulled from coastal waters battered in recent years by drought, and themassive BP oil spill.
The reality of the 2011 Gulf of Mexico shrimp season likely won't be known for several more months, but preliminary numbers compiled by the state for The Times-Picayune this month show the Louisiana brown shrimp season garnered about 35 percent more pounds of headless shrimp than any season since 2007.
Definitive numbers for the white shrimp harvest aren't yet available, but it appears that catch dropped."

Annotated State of the Union Speech - James Fallows - Politics - The Atlantic

2012-01-27T16:21:00.001-05:00

Obama's hand - editing a draft.
Don't they know how to find the double-space key at the White House?

James Fallows is an excellent experienced analyst of Presidential rhetoric. He was a speech-writer for Jimmy Carter, a much less satisfying job than writing for Barack Obama who actually closely edits his own speeches even when he doesn't write the draft himself. DON'T read the excerpt below. Click on the link. You will find that when you put the cursor over an underlined phrase Fallows' comments pop up. - GWC

Annotated State of the Union Speech - James Fallows - Politics - The Atlantic:

Remarks of President Barack Obama—As Prepared for Delivery

State of the Union Address

"An America Built to Last"

Tuesday, January 24th, 2012

Washington, DC

As Prepared for Delivery -

Mr. Speaker, Mr. Vice President, members of Congress, distinguished guests, and fellow Americans:

Last month, I went to Andrews Air Force Base and welcomed home some of our last troops to serve in Iraq. Together, we offered a final, proud salute ^[1]to the colors under which more than a million of our fellow citizens fought—and several thousand gave their lives.

We gather tonight knowing that this generation of heroes ^[2]has made the United States safer and more respected around the world^[3]. For the first time in nine years, there are no Americans fighting in Iraq. For the first time in two decades, Osama bin Laden^[4] is not a threat to this country^[5]. Most of al Qaeda's top lieutenants have been defeated. The Taliban's momentum has been broken, and some troops in Afghanistan have begun to come home.

These achievements are a testament to the courage, selflessness, and teamwork of America's Armed Forces.^[6] At a time when too many of our institutions have let us down, they exceed all expectations. They're not consumed with personal ambition^[7]. They don't obsess over their differences.^[8] They focus on the mission at hand. They work together^[9].

Imagine what we could accomplish if we followed their example^[10]. Think about the America within our reach: A country that leads the world in educating its people. An America that attracts a new generation of high-tech manufacturing and high-paying jobs. A future where we're in control of our own energy, and our security and prosperity aren't so tied to unstable parts of the world. An economy built to last,^[11]where hard work pays off, and responsibility is rewarded.

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Legal aid units face more drastic cuts: WSJ Law Blog

2012-01-26T16:41:00.000-05:00

There is not much left of the War on Poverty, is there? The Legal Services Corporation is a surviving outgrowth of the Office of Economic Opportunity. OEO was the executive branch arm of Pres. Johnson's War on Poverty, which was first led by the late Sargent Shriver. Even more devastating than budget cuts is the fact that interest on lawyers trust accounts plummeted with the federal funds rate and the decline in housing sales. That device provided a great deal of the funding for legal aid and defender services nationwide. - GWC

Legal Aid Groups Planning Major Layoffs in 2012 - Law Blog - WSJ

NJ Supreme Court Upholds Enhanced Fees in Rights Cases - Again Rejecting U.S. High Court Rule

2012-01-26T08:41:00.004-05:00

Justice Helen Hoens

The New Jersey Supreme Court unanimously affirmed that courts may award enhanced fees for lawyers who on contingent fee contracts prevail in consumer protection and civil rights cases.

Justice Helen Hoens said the justices saw no reason to abandon the fee-shifting principles it established in Rendine v. Pantzer, 141 N.J. 292 (1995). The Court there rejected the U.S. Supreme Court's declaration in City of Burlington v. Dague, 505 U.S. 557 (1992) that in federal civil rights cases courts may not increase fees to reflect the risk of non-payment assumed by prevailing plaintiffs' lawyers. - GWC

Court Upholds Rendine Fee Shifting, Declining To Follow U.S. High Court:

by Michael Booth - NJ Law Journal

"The state Supreme Court on Wednesday reaffirmed its nearly two-decade-old commitment to a doctrine that permits trial judges to enhance counsel fees in cases that might never be filed if not for the ability to shift fees.

In a consolidated ruling in two cases, the unanimous Court overturned two appellate rulings that followed the U.S. Supreme Court's holding, in Perdue v. Kenny A ., 130 S.Ct. 1662 (2010), that trial judges may award fees only in rare and extraordinary circumstances.

Justice Helen Hoens said the justices saw no reason to abandon the fee-shifting principles it established in Rendine v. Pantzer, 141 N.J. 292 (1995).

In one of the cases, Walker v. Guiffre, A-72-10, the Court reinstates a $99,000 legal fee on the plaintiff's $650 recovery in a suit accusing Route 22 Nissan Inc. and other car dealerships of fraudulently inflating fees in sales contracts."

In Humphries v. Powder Mill Shopping Plaza, A-100-10, a wheelchair-bound woman alleged disability discrimination at the Powder Mill Shopping Plaza in Morris Plains. Bobbie Humphries alleged the parking lot did not have enough handicap parking spaces, with some located on a lower level accessible only by stairs or a ramp with a dangerously steep incline. A settlement was reached which improved the access ramps and paid nominal compensation to the plaintiff. Attorneys fees of $97,000 were awarded by the trial court, a sum set aside by the Appellate Division. Edward Kopelson, the plaintiff's lawyer, should now get those fees and an award for his successful efforts on appeal.

The opinion is posted HERE.
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Judge Jed Rakoff on free love, the death penalty, defending crooks and Wall Street justice - The Washington Post

2012-01-22T17:32:00.000-05:00

Judge Jed Rakoff on free love, the death penalty, defending crooks and Wall Street justice - The Washington Post: "By David S. Hilzenrath, Published: January 20

From a courtroom in Manhattan, not far from the epicenter of the nation’s financial crisis, a longtime federal judge is becoming a hero to many and a nightmare to some for demanding greater accountability in cases of alleged Wall Street fraud.

Jed S. Rakoff is driving regulators nuts by refusing to rubber-stamp the kind of deals that have long defined Securities and Exchange Commission justice — boilerplate settlements in which companies use shareholders’ money to pay fines while they neither admit nor deny doing anything wrong. The latest example called for Citigroup to pay $285 million for alleged misconduct during the mortgage meltdown."

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Attorney General reverses course, supports holding back percentage of BP settlements | NOLA.com

2012-01-18T14:40:00.001-05:00

Louisiana A.G. Buddy Caldwell

Attorney General reverses course, supports holding back percentage of BP settlements | NOLA.com: "Reversing his position without explanation, Louisiana Attorney General Buddy Caldwell said Tuesday he would support holding back 4 percent of state financial recoveries from the Gulf of Mexico oil disaster to fund the work of the committee of plaintiff attorneys at the helm of the litigation.
File photoAttorney General Buddy CaldwellCaldwell will also assume a new higher-profile role in the consolidated litigation over the oil spill, and will join Alabama Attorney General Luther Strange as co-coordinating counsel for state interests.The news came in a court filing Tuesday afternoon that also withdraws an earlier objection Caldwell had filed with the U.S. Fifth Circuit Court of Appeals over the 4 percent withholding issue."

Meanwhile the Southeast Texas Record reports that Alabama A.G. Luther Strange who supported the hold back has shifted his position in light of the objection filed by the United States Department of Justice. Strange reportedly now calls for Judge Barbier to reconsider.

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Concurring Opinions » Walker v. City of Birmingham

2012-01-17T19:42:00.000-05:00

Concurring Opinions » Walker v. City of Birmingham:

by Prof.Dave Hoffman/Temple

"On tap today in civil procedure: the dispiriting Walker case, in which Justice Stewart holds that the collateral bar rule trumps the First Amendment. It’s a terrific case to teach early in the semester, and scheduling it immediately after MLK Monday can be especially gripping. In Duncan Kennedy’s framing (from The Reproduction of Hierarchy), Walker is a hot, hot case, which makes students quite angry, but leaves them ultimately unsure on how to channel that anger in a legally appropriate manner. Shouldn’t MLK and the ministers have petitioned the court even though it was futile? Isn’t Justice Stewart sort of right that such general rules can’t abide small exceptions, lest we fail to “pay for the civilizing hand of law”? Surely there’s an argument that courts, who lack armies, require special solicitude which the executive and legislative branches don’t."

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ImmigrationProf Blog: Catholic Bishops Urge Activism on Immigration at State and Federal Levels

2012-01-17T15:35:00.000-05:00

ImmigrationProf Blog: Catholic Bishops Urge Activism on Immigration at State and Federal Levels: "Catholics should be politically active at both the local and national level to promote a humane reform of immigration law is the message coming out of a conference in Salt Lake City sponsored by the U.S. Conference of Catholic Bishops and the Catholic Legal Immigration Network.
"The USCCB doesn't support any state immigration accord, though the dioceses and the state Catholic bishops conferences have done so," Kevin Appleby, director of migration policy and public affairs for the USCCB, told Efe from the Utah capital.
"At the same time, we believe that those accords are useful tools to defend immigrants' rights and to change the characteristics of the immigration debate," he said.
The 300 or so Catholic prelates and activists meeting this week in Salt Lake City are analyzing harsh anti-immigration measures enacted by states such as Arizona and Alabama.
Also on the agenda is a review of the impact on immigrant communities of programs such as Secure Communities, under which state and local law enforcement agencies are required to cooperate with federal immigration authorities."

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ImmigrationProf Blog: South Carolina Lawsuit on Hold, Awaits Outcome in Arizona v. United States

2012-01-17T09:01:00.000-05:00

ImmigrationProf Blog: South Carolina Lawsuit on Hold, Awaits Outcome in Arizona v. United States: "A federal district court has stayed the proceedings in the U.S. government's challenge to the South Carolina immigration enforcement law. In December, the court enjoined several key provisions of the law. The case will await the Supreme Court's decision in Arizona v. United States. The court of appeals has denied efforts to delay the resolution of the appeals in the cases challenging the Georgia and Alabama immigration enforcement laws."

'via Blog this'

Letter From Birmingham City Jail (Excerpts) by Martin Luther King, Jr.

2012-01-16T11:39:00.000-05:00

In April 1963, jailed for marching without a permit in Birmingham, Alabama, Martin Luther King penned this open letter to clergymen of Birmingham who had urged him to go slow. The conviction was upheld by the Supreme Court (the law must be obeyed) but the letter was a turning point in the civil rights movement. Four months later the famous I Have a Dream speech was delivered.

The open letter begins:

My Dear Fellow Clergymen,
While confined here in the Birmingham City Jail, I came across your recent statement calling our present activities "unwise and untimely." Seldom, if ever, do I pause to answer criticism of my work and ideas … But since I feel that you are men of genuine good will and your criticisms are sincerely set forth, I would like to answer your statement in what I hope will be patient and reasonable terms.
I think I should give the reason for my being in Birmingham, since you have been influenced by the argument of "outsiders coming in." I have the honor of serving as president of the Southern Christian Leadership Conference, an organization operating in every Southern state with headquarters in Atlanta, Georgia. We have some 85 affiliate organizations all across the South … Several months ago our local affiliate here in Birmingham invited us to be on call to engage in a nonviolent direct action program if such were deemed necessary. We readily consented.
In any nonviolent campaign there are four basic steps: 1) collection of the facts to determine whether injustices are alive; 2) negotiation; 3) self-purification; and 4) direct action. We have gone through all of these steps in Birmingham … Birmingham is probably the most thoroughly segregated city in the United States. Its ugly record of police brutality is known in every section of the country. Its unjust treatment of Negroes in the courts is a notorious reality. There have been more unsolved bombings of Negro homes and churches in Birmingham than in any city in this nation. These are the hard, brutal, and unbelievable facts. On the basis of these conditions Negro leaders sought to negotiate with the city fathers. But the political leaders consistently refused to engage in good faith negotiation.

Letter From Birmingham City Jail (Excerpts) by Martin Luther King, Jr.:

While everyone now nods reverentially, Rick Perlstein reminds us that it was not always so. Barry Goldwater sparked the new conservative movement when he voted against the civil rights act of 1964 (something Ron and Rand Paul defend still); William Buckley, Ronald Reagan and others denounced King for lawlessness.
In fact, though he is saint now - white people didn't like him much back in the day, as John Sides points out at The Monkey Cage.

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Holdback order in BP oil spill case challenged

2012-01-14T09:48:00.000-05:00

Holdback order in BP oil spill case challenged: "NEW YORK, Jan 13 (Reuters) - In a flurry of court filings this week, lawyers for claimants before the $20 billion BP oil spill fund asked a federal judge to reconsider his December order requiring that six percent of future settlements be placed in a reserve account.

U.S. District Court judge Carl Barbier in New Orleans established the account on Dec. 28 to potentially reward lawyers leading the BP multi-district litigation spawned by the Deepwater Horizon rig explosion in 2010. Barbier said he had not decided to award the fees, but he wanted to have the option if he decided they were deserved. On Jan. 4, Barbier amended his order to clarify the order would only affect claimants who hadn't received a determination letter from the BP fund as of Dec. 31."

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New Jersey Trade Secrets Act Becomes Law : IP Law Alert

2012-01-12T09:18:00.001-05:00

NJ Statehouse

New Jersey Trade Secrets Act Becomes Law : IP Law Alert:

by Gibbons, PC

"Yesterday, [January 9, 2012] Governor Chris Christie signed into law the New Jersey Trade Secrets Act, A-921/S-2456 providing state law protection against trade secret misappropriation. Prior to enactment, New Jersey was one of only four states (including New York, Massachusetts and Texas) that had not adopted some form of the Uniform Trade Secrets Act.

This important New Jersey law development takes immediate effect. In sum, trade secrets can be used to protect a company’s know-how and other proprietary information."

'via Blog this'

Hammontree v. Jenner: The Rest of the Story

2012-01-11T15:51:00.000-05:00

Concurring Opinions » Hammontree v. Jenner: The Rest of the Story:

'via Blog this'

Nice guy: BP Makes Amends - NYTimes.com

2012-01-09T22:44:00.000-05:00

BP - nice guys, says Joe Nocera.

Plaintiffs' lawyers - greedy says Nocera, who objects to their getting paid.

BP Makes Amends - NYTimes.com:
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Aliens denied equal access to health benefits: Mass. Supreme Court

2012-01-07T17:15:00.002-05:00

In Finch v. Commonwealth Health Insurance the Massachusetts Supreme Judicial Court voided a statute denying access to `Romneycare' by legal aliens in the U.S. less than five years. The Court found that the equal protection clause of the 14th Amendment barred the cost-saving limitation. Perhaps 30,000 people were deprived of health care access by the measure.
Northeastern Law School Prof. Wendy Parmet represented the plaintiffs. Northeastern is today's People's Electric Law School, as we used to call Rugers-Newark. Kevin Johnson at Immigration Prof Blog has the story.

OTHERWISE: Postpone mandate test, Court urged : SCOTUSblog

2012-01-07T14:25:00.000-05:00

The Affordable Care Act challenges should be dismissed. That is the view of the court-appointed attorney asked to address the standing issue in the 26 state effort to enjoin the individual mandate provision of the affordable care at. The Anti-Injunction act bars the claims as premature. The Act takes effect in 2014. Until one has paid the tax the claims are said to be premature, the court-appointed amicus argues in his brief.
Postpone mandate test, Court urged : SCOTUSblog:

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S.E.C. to Change Policy on Companies’ Admission of Guilt - NYTimes.com

2012-01-06T14:24:00.000-05:00

This does not affect the stance the SEC takes in the Citigroup settlement that Judge Jed Rakoff rejected. But it seems fair to say that his pressure - in Citigroup and other cases - played a part in stiffening the SEC's stance on admissions of wrongdoing. - GWC

S.E.C. to Change Policy on Companies’ Admission of Guilt - NYTimes.com: "The Securities and Exchange Commission is making a major change in how it settles some securities fraud cases, telling companies that they will no longer be allowed to say they neither admit nor deny the commission’s civil charges when, at the same time, they admit to or have been convicted of criminal violations."

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Pfizer Must Pay $45 Million in Prempro Cases, Court Rules - Businessweek

2012-01-06T00:10:00.000-05:00

Pfizer Must Pay $45 Million in Prempro Cases, Court Rules - Businessweek: "“There was sufficient evidence of gross negligence and willful and wanton misconduct to support imposition of punitive damages,” the panel said in its 46-page ruling in Barton’s case.

‘Extraordinary Victory’

The court noted that while Kendall’s punitive award was large, it “correlated with the enormity of the defendants’ wrongs, their clear liability and the devastating impact on the plaintiff,” according to the 53-page decision.

“This is an extraordinary victory for Mrs. Kendall,” Tobi Millrood, one of her lawyers, said in an e-mailed statement. “The appellate court didn’t mince words: Wyeth and Upjohn engaged in a pattern of misconduct that was not the result of mere accident or happenstance.”

The cases are Connie J. Barton v. Wyeth Pharmaceuticals Inc., 694 EDA 2010, Superior Court of Pennsylvania; Donna Kendall v. Wyeth Inc., 936 EDA 2010, Superior Court of Pennsylvania."

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Kenneth Feinberg freezes payments from BP oil spill fund | NOLA.com

2012-01-05T10:06:00.000-05:00

Fallout continues from MDL Judge Carl Barbier's order to deduct 6% of all settlements between BP and claimants in the Gulf oil spill of 2010. BP challenges the judge's jurisdiction to order a hold-back of funds paid to people who have not filed suit and have not benefited from the plaintiffs Steering Committee's work and investments in the cases. As I discuss in a forthcoming piece in the Roger Williams Law Review there is a regulatory vacuum regarding administration of BP's mandatory compensation scheme under the Oil Pollution Act of 1990. Judge Barbier citing the existence of a "putative class" of claimants has stepped boldly into that gap. - GWC
Kenneth Feinberg freezes payments from BP oil spill fund | NOLA.com:

"The Gulf Coast Claims Facility has halted all payments for oil spill damage in the wake of a ruling by U.S. District Judge Carl Barbier last week that 6 percent of all settlements reached after Nov. 7 be set aside to finance the work of plaintiff attorneys in the oil spill litigation in New Orleans. The move means that thousands of people and businesses waiting to be compensated outside of court for harm they endured when the Deepwater Horizon oil rig exploded and sank in April 2010 will have to wait longer for their money.

Payments to about 9,000 people and businesses who have received final determination letters from the Gulf Coast Claims Facility, but have yet to sign the award, are now in play. Another 40,000 people and businesses have claims under review at the GCCF and could also be affected.
"While we seek clarification from the court, we will freeze all GCCF payments going forward," claims facility administrator Kenneth Feinberg said Tuesday. "Hopefully, this freeze will be of a very short duration.""

Goodwin Procter, attorneys for Feinberg and the GCCF have asked for clarification of how to comply with the ruling which is effective November 7. At least some of those funds are no longer within the GCCF or BP's control.

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Robert L. Carter, Judge and Desegregation Strategist, Dies at 94 - NYTimes.com

2012-01-04T23:36:00.000-05:00

NAACP lawyers: Louis L. Redding, Robert L. Carter, Oliver W. Hill,
Thurgood Marshall and Spottswood W. Robinson II

Robert L. Carter, Judge and Desegregation Strategist, Dies at 94 - NYTimes.com: "Robert L. Carter, a former federal judge in New York who, as a lawyer, was a leading strategist and a persuasive voice in the legal assault on racial segregation in 20th-century America, died on Tuesday morning in Manhattan. He was 94.
The cause was complications of a stroke, said his son John W. Carter, a justice of the New York Supreme Court in the Bronx."

'via Blog this'

China Amends Law to Boost Occupational Illness Prevention, Control

2012-01-01T00:15:00.000-05:00

China Amends Law to Boost Occupational Illness Prevention, Control:

CRIEnglish.com

"Upon the conclusion of a six-day bimonthly session on Saturday, China's top legislature adopted an amendment to the Law on Occupational Illness Prevention and Control in a bid to better protect worker's legal rights.

The amendment was added after the Standing Committee of the National People's Congress (NPC), the legislature, conducted a third reading of the draft, which had previously been read in June and October.

President Hu Jintao has issued an order to publicize the amendment, which will take effect from the day of its publication.

Occupational illness refers to those illnesses caused by contact with dust, radioactive materials or other poisonous, harmful elements during a worker's occupational activities with enterprises, public institutions and individual business units, according to the amended law.

The amended law highlights China's enhanced moves to simplify procedures to help those suffering from occupational illnesses and to protect worker's legal rights, as treatment for such illnesses has become a growing public concern."

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OTHERWISE: Candor to the tribunal: SEC, Citigroup and Judge Rakoff

2011-12-31T11:10:00.000-05:00

OTHERWISE: Candor to the tribunal: SEC, Citigroup and Judge Rakoff:

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Fund will be created to reimburse plaintiff attorneys working on BP litigation | NOLA.com

2011-12-30T09:35:00.000-05:00

Fund will be created to reimburse plaintiff attorneys working on BP litigation | NOLA.com:

U.S. District Judge Carl Barbier has granted a hotly contested motion to create a fund that could eventually reimburse plaintiff attorneys for their work in the Gulf of Mexico oil spill litigation over the objections of several parties to the case.

Barbier's order does not actually award "common benefit fees," or the amount of money that the committee of plaintiff attorneys pressing the case for the benefit of all claimants would get to compensate them for their time and expenses.
Rather, it sets up a fund that would ultimately pay such fees, should they be awarded, and requires defendants and states in the case to begin holding back a percentage of any settlements as contributions to the fund.

A percentage of settlements reached through the Gulf Coast Claims Facility, the $20 billion fund administered by Washington mediator Kenneth Feinberg, will also be required to be contributed to the fund.

The order is HERE
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Feinberg Adjusts Payment Methodology to Fishermen Due to Uncertainty : Louisiana Seafood News

2011-12-29T16:02:00.000-05:00

BP's claim administrator Kenneth Feinberg has doubled the offer of permanent damages offered in the Gulf Oil spill cases: from 2 times the 2010 loss to four times the 2010 season loss. Louisiana Seafood News - GWC

Feinberg Adjusts Payment Methodology to Fishermen Due to Uncertainty : Louisiana Seafood News:

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Doing the Math on Louisiana’s 2011 Shrimp Season : Louisiana Seafood News

2011-12-29T15:55:00.000-05:00

Doing the Math on Louisiana’s 2011 Shrimp Season : Louisiana Seafood News:

A look at the numbers from a shrimp boat captain's perspective. - GWC

'via Blog this'

Bullet train crash: 54 punished - china Daily

2011-12-28T23:55:00.000-05:00

Wenzhou train crash 'due to designfailures'|Society|chinadaily.com.cn:

"BEIJING - Design flaws, sloppy management and the mishandling of a lightning strike that crippled equipment were behind a bullet train crash in July that killed 40 people, an investigation has found.

A total of 54 people, held accountable for the fatal crash, will face punishment, an executive meeting of the State Council said on Wednesday.

On July 23 a bullet train rammed into another stranded on the track after being hit by lightning near the coastal city of Wenzhou in East China's Zhejiang province.

There were "serious design flaws" in the control equipment used at Wenzhou South Railway Station, the report released on Wednesday said.

The equipment was designed by the Beijing National Railway Research and Design Institute of Signals and Communication, a subsidiary of the China Railway Signal and Communication Corp.

Investigators believe that the design defects occurred because of the institute's sloppy management and the corporation's failure to fulfill its duty."

'via Blog this'

Record $285 ml fee award is Strine's message to plaintiffs' bar

2011-12-27T23:27:00.000-05:00

From the Chancery Court in Delaware the message is: bring hard cases, do well, get paid well. - GWC

Record $285 ml fee award is Strine's message to plaintiffs' bar:

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As Second Circuit Holds Citi Case, Rakoff Slams the SEC - Law Blog - WSJ

2011-12-27T23:18:00.000-05:00

The SEC has asked the 2d Circuit Court of Appeals for a stay pending appeal from the rejection of its settlement agreement with Citigroup Global Securities, and apparently has gotten it - at least until January 17. District Judge Jed Rakoff - who rejected the proposed settlement - ordered SEC to proceed to a June trial, consolidating the action with an SEC negligence claim against individual - based on the same occurrences.

Rakoff denied the stay and explained that the SEC cannot show irreparable harm from being forced to proceed to trial in a case it had agreed to settle. Joe Palazzolo explains and provides links to key documents. - GWC

As Second Circuit Holds Citi Case, Rakoff Slams the SEC - Law Blog - WSJ:

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Judges Cancel Case Assignment Experiment - Law Blog - WSJ

2011-12-24T00:55:00.001-05:00

Is this the `Rakoff Rule'?

OTHERWISE: Judges Cancel Case Assignment Experiment - Law Blog - WSJ:

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Judges Cancel Case Assignment Experiment - Law Blog - WSJ

2011-12-24T00:55:00.000-05:00

Is this the `Rakoff Rule'?

OTHERWISE: Judges Cancel Case Assignment Experiment - Law Blog - WSJ:

'via Blog this'

Federal judge blocks portions of South Carolina immigration law - Jurist

2011-12-22T18:11:00.000-05:00

Confederate flag over So.Carolina capitol

[JURIST] A judge for the US District Court for the District of South Carolina [official website] on Thursday blocked [order, PDF] portions of South Carolina's controversialimmigration law [SB 20]. The legislation requires police officers to check a suspect's immigration status during a lawful stop, seizure, detention or arrest if they believe the person may be in the country illegally and requires businesses to participate in the E-Verify [official website] system.

It was challenged by a coalition of civil rights groupsand the US Department of Justice (DOJ) [JURIST reports], which both argued that it is unconstitutional, invites racial profiling and interferes with federal law. Judge Richard Gergel blocked the provision that requires police to check immigration status, finding, "[t]his state-mandated scrutiny is without consideration of federal enforcement priorities and unquestionably vastly expands the persons targeted for immigration enforcement action. He also blocked the provision that outlaws harboring or transporting an illegal immigrant, finding a likelihood of irreparable harm. The law was set to take effect January 1.JURIST - Paper Chase: Federal judge blocks portions of South Carolina immigration law:

The New York Times report is HERE
'via Blog this'

Firm hired to evaluate Ken Feinberg's oil spill claims process | NOLA.com

2011-12-22T11:03:00.000-05:00

Despite the campaign rhetoric that the Obama administration is committed to excessive regulation, it finds itself without an established mechanism to govern or assess the response by BP to its statutory obligation to pay compensation for both interim and permanent losses to those who suffered losses due to the Gulf oil spill which damaged natural resources and led to widespread economic dislocations. The Times-Picayune reports: - GWC

The U.S. Department of Justice on Wednesday selected a New York consulting and investigations firm to evaluate Kenneth Feinberg's oil spill claims process. Assistant U.S. Attorney General Thomas Perrelli sent a letter Wednesday to BDO Consulting's offices in New York and Houston urging the firm to immediately begin its review and report its findings by March.

Houma Courier archive, via APKenneth Feinberg at a meeting in Lafourche Parish in March.

"Where it has performed well, the people of the Gulf deserve to know that they have been fairly served," Perrelli wrote, referring to the Feinberg-run Gulf Coast Claims Facility. "Where it has fallen short, we must take appropriate steps to ensure that victims of the oil spill are fairly treated and properly compensated."

Feinberg has welcomed the independent evaluation and already agreed to pay for it. That caused Perrelli to warn BDO that it must stay "fully independent" from the GCCF. "While Mr. Feinberg has agreed that the GCCF will pay the costs associated with the review, your work will be overseen and directed by the Department of Justice," the letter said.

Firm hired to evaluate Ken Feinberg's oil spill claims process | NOLA.com:

'via Blog this'

PrawfsBlawg: Cavazos v Smith I

2011-12-21T11:29:00.000-05:00

PrawfsBlawg: Cavazos v Smith I:

'via Blog this'

Law Blog Expert Panel: Ex-Federal Judges on Rakoff's Rejection of Citi Pact - Law Blog - WSJ

2011-12-19T12:20:00.000-05:00

Three judges weigh in on Judge Rakoff's rejection of the settlement between SEC and Citigroup. Following the WSJ's idea of balance they are: 1) Wrong. 2) Understandable but problematic (better left to legislative processes). 3) Within the judge's discretion under the Federal Rules of Civil Procedure, R. 23.
Law Blog Expert Panel: Ex-Federal Judges on Rakoff's Rejection of Citi Pact - Law Blog - WSJ:
A fourth approach is the laudatory one taken by the New Jersey Law Journal Editorial Board:

The Securities and Exchange Commission is tasked with the responsibility to investigate unlawful conduct of corporate America. If it is determined that regulated businesses have engaged in unlawful activity that has caused or contributed to the current depressed national economy, then they have a job to do.On Oct. 19, the SEC filed two lawsuits in the Southern District of New York: one accusing Citigroup Global Markets Inc. of a substantial securities fraud and the other accusing an identified employee of involvement in that fraud. Based on four years of accumulated information, the SEC asserted that in early 2007, when the market for mortgage-backed securities was beginning to weaken, Citigroup created a billion-dollar fund that allowed it to dump questionable assets on misinformed investors by representing that the fund's assets were attractive investments. Citigroup included within the portfolio a substantial percentage of negatively projected assets and had taken a short position in the very assets that it helped select, the SEC contended.

While the suit against Citigroup alleged negligence, the suit against the individual employee set forth that Citigroup actually knew that placing the liabilities of the fund would be difficult if it disclosed to potential investors its intention to use the fund to short a hand-picked set of poorly rated assets.Contemporaneously with the filing of those complaints, the SEC presented to District Judge Jed Rakoff a proposed consent judgment, represented to be the settlement between the SEC and Citigroup, not the individual employee.

The economic terms of the settlement were that Citigroup was to disgorge $160 million in net profits realized from the transaction, plus $30 million in interest, and to pay a civil penalty of $95 million, for a total of $285 million. When put into perspective, this sum of money is very small. Citigroup made a $3.8 billion profit in the third quarter of 2011 alone. The investors, meanwhile, lost more than $700 million.

The settlement provided that Citigroup would neither admit nor deny any of the allegations of the complaint and was enjoined from violating the securities law in the future.Private parties have the right to enter into settlement agreements, whether or not they are fair and reasonable. But Rakoff refused to approve this settlement between a governmental agency and a regulated corporation without being provided any proven or admitted facts upon which he could exercise some independent judgment.***

It appears to have been the government's and Citigroup's intention to walk into court and have their agreement rubber-stamped. Rakoff recognized that substantial deference was due the SEC but correctly observed that he had to exercise independent judgment to determine the settlement to be fair, reasonable, adequate and in the public interest. The government took the extraordinary position that the SEC is the sole determiner of what is in the public interest regarding consent judgments in its cases. But as Rakoff pointed out, that is not the law.

Rakoff needed some knowledge of the underlying facts to avoid being a "mere handmaiden to a settlement privately negotiated on the basis of unknown facts, while the public is deprived of ever knowing the truth in a matter of obvious public importance." He was critical of a consent agreement wherein there was no admission of the underlying allegations. Not only did the settlement bring no benefit to the defrauded investors; the consent judgment would have absolutely no evidentiary value in any claim or suit an investor might thereafter lodge.

Many judges would have acquiesced and approved the settlement. The SEC claims it is devoted to the protection of the investors as well as to assisting them in the recovery of their losses. That appeared a fiction to Rakoff, who stated that "in any case like this that touches on the transparency of financial markets whose gyrations have so depressed our economy and debilitated our lives, there is an overriding public interest in knowing the truth." Instead of approving the consent judgment, he consolidated both cases for trial next July.Rakoff's decision underscores the need for an independent judiciary. Our compliments to the court.

'via Blog this'

2011-12-19T01:00:00.001-05:00

The National Academy of Sciences has issued its Report on the Deepwater Horizon BP Oil Spill: Macondo Well-Deepwater Horizon Blowout:Lessons for Offshore Drilling Safety
Authored by the Committee for Analysis of Causes of the Deepwater Horizon Explosion, Fire, and Oil Spill to Identify Measures to Prevent Similar Accidents to the Future - National Academy of Engineering and National Research Council, it concludes that their were failures across the board. The press release accompanying issuance declares:

Despite challenging geological conditions, alternative techniques and processes were available that could have been used to prepare the exploratory Macondo well safely for "temporary abandonment" -- sealing it until the necessary infrastructure could be installed to support hydrocarbon production, the report says. In addition, several signs of an impending blowout were missed by management and crew, resulting in a failure to take action in a timely manner. And despite numerous past warnings of potential failures of blowout preventer (BOP) systems, both industry and regulators had a "misplaced trust" in the ability of these systems to act as fail-safe mechanisms in the event of a well blowout.

BOP systems commonly in use -- including the system used by the Deepwater Horizon -- are neither designed nor tested to operate in the dynamic conditions that occurred during the accident. BOP systems should be redesigned, rigorously tested, and maintained to operate reliably, the report says. Proper training in the use of these systems in the event of an emergency is also essential. And while BOP systems are being improved, industry should ensure timely access to demonstrated capping and containment systems that can be rapidly deployed during a future blowout.

BP did not assert the $75 million cap on damages in the Oil Pollution Act - because it elected not to contest the issue of whether it had been reckless. This report suggests that decision was wise.

S 1400 the Gulf Coast Restore Act

2011-12-18T11:40:00.000-05:00

from a fact sheet supporting S.1400. Introduced by Sen. Mary Landrieu (D-LA), in July 2011 the Resources and Ecosystems Sustainability, Tourist Opportunities, and Revived Economies of the Gulf Coast States Act of 2011 (RESTORE Act) is described below:

CRS Summary
Senate Report

What the RESTORE Act Does

Under current law, BP and others responsible
for last year’s oil spill will pay a Clean Water
Act (CWA) penalty for each barrel of oil spilled
into the Gulf.
Without action from Congress, those penalties
will go to unrelated federal spending, instead
of repairing the area damaged by the spill.
BP’s fines belong in the Gulf, where the
damage was done.
Two official reports on the spill – one
conducted by Navy Secretary and former
Mississippi Governor Ray Mabus, the other
from the bipartisan National Commission on
the Deepwater Horizon Oil Spill and Offshore
Drilling – recommended that CWA penalties
be dedicated to Gulf Coast restoration.

The RESTORE Act creates an essential
framework to manage and finance the
Gulf Coast recovery. Using 80% of the CWA
penalties from the Gulf oil disaster, the
RESTORE Act establishes a trust account to
restore both the economic and environmental
health of the Gulf Coast.

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S.E.C. Sues 6 Former Top Fannie and Freddie Executives - NYTimes.com

2011-12-16T14:46:00.000-05:00

S.E.C. Sues 6 Former Top Fannie and Freddie Executives - NYTimes.com: "The Securities and Exchange Commission has brought civil actions against six former top executives at the mortgage giants Fannie Mae and Freddie Mac, saying that the executives did not adequately disclose their firms’ exposure to risky mortgages in the run-up to the financial crisis."
The complaints SEC v. Mudd, Dellavecchia and Lund

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BP to Get $250 Million in Gulf of Mexico Oil Spill Settlement - NYTimes.com

2011-12-16T12:26:00.000-05:00

$250 million settlement in design defect claim by BP against the designer of the blowout preventer. - GWC
BP to Get $250 Million in Gulf of Mexico Oil Spill Settlement - NYTimes.com: "LONDON — The British oil company BP said Friday that Cameron International, one of its contractors in the oil well that burst last year in the Gulf of Mexico, had agreed to pay $250 million to settle claims related to the ensuing spill.
Cameron, based in Houston, designed and manufactured the so-called blowout preventer on the drilling rig, which failed to stop the oil from spilling. The settlement, which is BP’s fourth so far with companies that worked on some parts of the well, was not an admission of liability by either party, BP said."
BP and others in the industry pressed to cut safety testing. Design defect issues are discussed in this article from the Christian Science Monitor.

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Deserted - death on the border

2011-12-15T20:05:00.002-05:00

SEC files Notice of Appeal from Rakoff Rejection of Settlement

2011-12-15T19:47:00.002-05:00

Robert Khuzami, Director of Enforcement at the SEC issued today a statement and notice of appeal from the decision of Judge Jed Rakoff rejecting the SEC's proposed settlement with Citigroup. The SEC Director said, in part:

The court’s new standard is at odds with decades of court decisions that have upheld similar settlements by federal and state agencies across the country. In fact, courts have routinely approved settlements in which a defendant does not admit or even expressly denies liability, exactly because of the benefits that settlements provide.

Arizona Sheriff’s Office Unfairly Targeted Latinos, Justice Department Says - NYTimes.com

2011-12-15T13:25:00.000-05:00

Sheriff Joe Arpaio

Arizona Sheriff’s Office Unfairly Targeted Latinos, Justice Department Says - NYTimes.com:
by Marc Lacey
We have peeled the onion to its core,” said Thomas E. Perez, the assistant attorney general for civil rights...
"After an investigation that lasted more than two years, the civil rights division of the Justice Department said the sheriff’s office has “a pervasive culture of discriminatory bias against Latinos” that “reaches the highest levels of the agency.” The department interfered with the inquiry, the government said, prompting a lawsuit that eventually led Mr. Arpaio and his deputies to cooperate."

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Human Rights Watch accuses Alabama of violating constitution | Law | guardian.co.uk

2011-12-14T00:53:00.000-05:00

Human Rights Watch accuses Alabama of violating constitution | Law | guardian.co.uk:

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Arizona v. United States : SCOTUSblog

2011-12-13T13:12:00.000-05:00

The Supreme Court yesterday granted Arizona's petition for certification of the Ninth Circuit ruling sharply limiting enforcement of the state's controversial law addressed to undocumented aliens.

Arizona v. United States : SCOTUSblog

The four provisions at issue are:

** A requirement that police in making any stop or arrest to try to determine the individual’s legal right to be in the U.S., if the officer has a “reasonable suspicion” of illegality. If arrested, the individual cannot be released until his legal status is verified by the federal government. That is the law’s Section 2(B).

** A provision making it a crime under state law for an individual to intentionally fail to obtain and carry legal immigrant papers with him while in Arizona (Section 3).

** A provision making it a misdemeanor for an undocumented immigrant to apply for a job, publicly solicit a job, or actually work in Arizona (Section 5[C]).

** And, a provision that allows police to arrest without a warrant any person for whom the officer has “probable cause to believe” that the individual has committed any crime, anywhere, that would make that individual subject to being deported (Section 6).

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OTHERWISE: Newt Gingrich - overturning Marbury v. Madison and judicial review

2011-12-11T11:33:00.000-05:00

OTHERWISE: Newt Gingrich - overturning Marbury v. Madison and judicial review:

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Health care schedule set : SCOTUSblog

2011-12-08T19:41:00.002-05:00

Health care schedule set : SCOTUSblog:

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Derek Boogaard - A Boy Learns to Brawl - NYTimes.com

2011-12-08T15:58:00.000-05:00

To what level of violence do hockey players consent? in high school? college? the NHL? international play? Should it matter? The compelling story of Dereke Boogard - an "enforcer" on NHL teams, who died of a drug overdose with evidence of brain damage due to head trauma. - GWC

Derek Boogaard - A Boy Learns to Brawl - NYTimes.com:

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The Toxic Legacy of Raybestos-Manhattan Continues

2011-12-01T14:40:00.000-05:00

Workers' Compensation: The Toxic Legacy of Raybestos-Manhattan Continues: "The epic toxic legacy of asbestos brake manufacturer, Raybestos-Manhattan Inc., a/k/a Manhattan Rubber and Raymark, continues as waste from its former plants plagues present communities. Raybestos had several production plants in the US including Connecticut, South Carolina and Passaic, New Jersey.

Asbestos, labeled the "miracle mineral," was a known carcinogen and linked to: asbestosis, lung cancer and mesothelioma, a rare and fatal cancer. The company with knowledge of that information, as revealed in the famous "Sumner Simpson papers," ignored the available science and continued to manufacturer asbestos products including: bowling balls, radiator hoses and brake linings, as well as other products.

While the Raybestos is no longer producing asbestos products, the plants sites continue to be a problem to the communities as a toxic legacy continues."

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BP Oil Spill - Vanderbilt Law Review

2011-11-30T16:19:00.000-05:00

Rigs, Risk & Responsibility

Concurring Opinions » Vanderbilt Law Review, Volume 64, Number 6 (November 2011):

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Judge Rakoff rejects SEC - Citigroup Settlement

2011-11-28T22:09:00.001-05:00

The rejection of the proposed SEC v. Citgroup consent judgment has, of course, been covered profusely. So I'll just provide some useful links HERE , a link to Michael Rothfeld's profile of Judge Jed Rakoff, who is on his way to becoming the first judicial folk hero of the Great Recession, and an excerpt from the opinion:

"Finally, in any case like this that touches on the transparency of our financial markets whose gyrations have so depressed our economy and debilitated our lives, there is an overriding public interst in knowing the truth. In much of the world, propaganda reigns and truth is confined to secretive, fearful whispers. Even in our nation, apologists for suppressing or obscuring the truth may always be found. But the SEC, of all agencies, has a duty, inherent in its statutory mission, to see that truth emerges; and if it fails to do so, this Court must not, in the name of deference or convenience, grant judicial enforcement to the agency's contrivances."

California Punitive Damages: Missouri Supreme Court considering caps on punitive damages

2011-11-26T14:18:00.000-05:00

California Punitive Damages: Missouri Supreme Court considering caps on punitive damages:

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NY Top Court Reshapes Auto Accident Law - NY Personal Injury Blog

2011-11-25T21:01:00.001-05:00

Eric Turkewitz reports on Perl v. Meher. Go to his full post for background and significance. The Court of Appeals opinion is HERE. - GWC

NY Top Court Reshapes Auto Accident Law (Revamps The Way Courts Determine “Serious Injury”) – New York Personal Injury Law Blog:

"Last month I wrote about three cases being argued in New York’s Court of Appeals that had the potential to reshape the entire face of auto accident litigation and the definition of “serious injury.” That decision has now come down, and it reverses growing trends in the lower appellate courts that had thrown out cases as a matter of law if they didn’t have a doctor to show a “contemporaneous” loss of motion, to come within the “serious injury” threshold for the No-Fault law. The courts were refusing to allow juries to act as fact finders.Unless you are intimately familiar with the subject — and why this is one of the biggest decisions in auto litigation in years — you should read this post first and then return: Court of Appeals Hears Argument On “Serious Injury” in NY Auto Cases (What Should They Do?). In fact, I didn’t just write about this last month, but 13 months ago when I speculated in Perl v. Maher that this issue would come to a head. And two years ago I drew quite similar conclusions to today’s decision.So yes, I’ve been watching this awhile, as has the entire personal injury bar. Because this is very, very big."

A Review of Snigda Prakash’s All the Justice Money Can Buy, a Book on the Vioxx Tort Litigation | Rodger Citron | Verdict | Legal Analysis and Commentary from Justia

2011-11-24T23:25:00.000-05:00

Former NPR reporter Snigdha Prakash, former NPR reporter, was embedded with the plaintiff's lawyer Mark Lanier for one of the Vioxx trials. I worked for Lanier on the appeal of another Vioxx case McDarby v. Merck, 949 A. 2d 223 (NJ App. Div. 2008). I read the complete trial record of that case - the McDarby and Cona trials which were before the same judge. I find her account rings quite true. And Citron's review presents it fairly. - GWC

A Review of Snigda Prakash’s All the Justice Money Can Buy, a Book on the Vioxx Tort Litigation | Rodger Citron | Verdict | Legal Analysis and Commentary from Justia:

by Prof. Rodger Citron

Snigda Prakash, All the Justice Money Can Buy (Kaplan Publishing 2011)

Snigda Prakash, a former National Public Radio reporter, has written an interesting book about the litigation against Merck & Co., the manufacturer of Vioxx, a prescription drug used to relieve pain and inflammation. Merck withdrew its heavily-promoted drug from the market in 2004 due to concerns that consumers of Vioxx faced an increased risk of heart attacks and strokes; a deluge of tort lawsuits followed.

In All the Justice Money Can Buy, Prakash traces the history of the litigation, beginning with efforts by plaintiffs’ lawyers to sue the company even before Vioxx had been withdrawn from the market and concluding with the nearly $5 billion settlement agreement announced in late 2007 that covered the claims of most of the plaintiffs.

Much of Prakash’s book provides a detailed account of a trial in New Jersey in early 2007. One of the plaintiff’s lawyers, Mark Lanier, allowed Prakash to go behind the scenes to see how he prepared and presented his case. Wisely, Prakash accepted the opportunity to observe Lanier, a superb trial attorney from Texas, at work.

As discussed below, Prakash took full advantage of the access provided by Lanier and has provided a vivid and thorough reconstruction of a lengthy civil trial involving complicated issues. All the Justice Money Can Buy will be especially interesting to civil litigators who actually try cases instead of resolving them through settlement or pretrial motions.

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Financial Finger-Pointing Turns to Regulators - NYTimes.com

2011-11-23T18:16:00.000-05:00

99%'ers line up outside failed
IndyMac bank whose failure
cost taxpayers billions

The defense claim is made in response to an SEC inquiry that the bank holding company filing statements the SEC alleges to be fraudulent were in fact approved by accountants Ernst & Young, and by the federal Office of Thrift Supervision. Therefore they could not be fraudulent, according to Section IV A of defendant IndyMac Bancorp CEO Michael W. Perry's defense memorandum, which cites the Supreme Court's requirement [in Merck v. Reynolds (2010)] of an act with "intent to deceive".

Financial Finger-Pointing Turns to Regulators - NYTimes.com:

by Louise Story and Gretchen Morgenson

"In the whodunit of the financial crisis, Wall Street executives have pointed the blame at all kinds of parties — consumers who lied on their mortgage applications, investors who demanded access to risky mortgage bonds, and policy makers who kept interest rates low and failed to predict a housing market collapse.

But a new defense has been mounted by a bank executive: my regulator told me to do it."

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Department of Justice Challenges Utah’s Immigration Law

2011-11-23T11:37:00.000-05:00

Welcome to the United States Department of Justice:
"Department of Justice Challenges Utah’s Immigration Law
Several Provisions Interfere with Enforcement of Federal Immigration Law
WASHINGTON – The Department of Justice today challenged Utah’s immigration law, which comes after recent lawsuits in Arizona, Alabama and South Carolina. "
In a complaint, filed in the District of Utah, the department states that several provisions of Utah’s H.B. 497 are preempted by federal law. The provisions were enacted on March, 15, 2011.

The department’s lawsuit comes after several months of constructive discussions with Utah state officials. Notwithstanding today’s lawsuit, department officials expect this important dialogue to continue.

The department’s complaint states that H.B. 497 clearly violates the Constitution because it attempts to establish state-specific immigration policy. The law creates and mandates immigration enforcement measures that interfere with the immigration priorities and practices of the federal government in a way which is not cooperative with the primary federal role in this area. The law’s mandates on law enforcement could lead to harassment and detention of foreign visitors and legal immigrants who are in the process of having their immigration status reviewed in federal proceedings and whom the federal government has permitted to stay in this country while such proceedings are pending.

The federal government has the ultimate authority to enforce federal immigration laws and the Constitution does not permit a patchwork of local immigration policies. A state setting its own immigration policy interferes with the federal government’s enforcement efforts.

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Merck Agrees to Pay $950 Million in Vioxx Case - NYTimes.com

2011-11-22T16:05:00.000-05:00

Merck Agrees to Pay $950 Million in Vioxx Case - NYTimes.com: "The Department of Justice said on Tuesday that Merck will plead guilty and pay $950 million to resolve investigations into its marketing of the painkiller Vioxx.

The agency said Merck will pay $321.6 million in criminal fines and $628.4 million as a civil settlement agreement. It will plead guilty to a misdemeanor charge that it marketed Vioxx as a treatment for rheumatoid arthritis before getting Food and Drug Administration approval.

Among other things the Department of Justice charged that false claims about the safety and effectiveness of Vioxx caused Medicare and Medicaid to pay for drugs that they would not have bought but for the misrepresentation.

Merck stopped selling Vioxx in 2004 after evidence showed the drug doubled the risk of heart attack and stroke. In 2007, the company paid $4.85 billion to settle around 50,000 Vioxx-related lawsuits."

Merck's misconduct also led to a 2008 $650 million settlement of charges that Merck failed to pay rebates owed to Medicare and Medicaid, and made illegal payments to providers to induce them to prescribe Zocor Vioxx. Those were qui tam actions brought by whistleblowers.

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Lincoln, Slavery and the Kansas-Nebraska Act

2011-11-22T14:28:00.001-05:00

I mentioned in class today that the common law tradition radically unites property and personal liberty (and has a weak conception of the common good). To illustrate the power of the liberty point; and that American slavery exposed American claims of liberty as hypocritical here are two passages from Abraham Lincoln in the book I am reading at the moment: The Fiery Trial - Abraham Lincoln and American Slavery by Eric Foner.

Both come from a long speech in 1854 - denouncing Stephen Douglas and the Kansas Nebraska Act - which permitted settlers to decide whether slavery should be allowed in the Territory. - GWC

“This declared indifference, but as I must think, covert zeal for the spread of slavery I cannot but hate. I hate it because of the monstrous injustice of slavery itself. I hate it because it deprives our republican example of its just influence in the world - enables the enemies of free institutions, with plausibility, to taunt us as hypocrites - causes the real friends of freedom to doubt our sincerity, and especially because it forces so many really good men amongst ourselves into an open war with the very fundamental principles of civil liberty - criticising the Declaration of Independence, and insisting that there is no right principle of action but self-interest.”
“The dotrine of self government is right - absolutely and eternally right - but it has no just application...Or perhaps I should rather say that whether it has such just application depends upon whether a negro is not or is a man...If the negro is a man, is it not to that extent, a total destruction of self-government to say that he too shall not govern himself? When the white man governs himself that is self-government; but when he governs himself, and also governs another man...that is despotism. If the negro is a man, why then my ancient faith teaches me that `all men are created equal’; and that there can be no moral right in one man’s making a slave of another.”

Elizabeth Warren '76 remembers Rutgers Law years

2011-11-22T12:23:00.001-05:00

Elizabeth Warren was two years behind me at Rutgers Law School - which we called People's Electric Law School. She is interviewed here by Prof. Paul Tractenberg about her years in Newark. She remembers with particular fondness her contracts teacher and mine - Alan Axelrod. Married at 19 and a mother of an infant while she was a student, nine months pregnant again at graduation she says Rutgers "taught me pull up your socks and try".
HERE is the video.

High Court Drafts Lawyers to Rescue Orphaned Arguments - Law Blog - WSJ

2011-11-20T21:31:00.000-05:00

SCOTUS names lawyers to brief arguments embraced by courts but spurned by litigants in the Affordable Care Act cases. The plot thickens. - GWC

High Court Drafts Lawyers to Rescue Orphaned Arguments - Law Blog - WSJ:

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OTHERWISE: After Law School, Associates Learn to Be Lawyers - NYTimes.com

2011-11-20T09:52:00.000-05:00

OTHERWISE: After Law School, Associates Learn to Be Lawyers - NYTimes.com:

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Pepper spraying sit-down protesters

2011-11-19T21:35:00.002-05:00

There would be plenty of outrage if the police seen here were in China. There would be high level statements from the Department of State and lamentations by Presidential candidates. If it happened in Birmingham Alabama in 1963 there would have been national outrage. But this happened at the University of California - Davis and the reaction so far is minimal. James Fallows has much more at The Atlantic.
42 USC 1983 was passed by the post-civil war Republican Congress to deal with conduct like this. Fortunately it is still on the books. - GWC
Video is HERE

Asbestos collusion 'killed thousands' / Britain / Home - Morning Star

2011-11-19T18:30:00.000-05:00

Asbestos collusion 'killed thousands' / Britain / Home - Morning Star:

by John Millington

Leading asbestos campaigner John Flanagan launched a stinging attack on ex-ministers, businesses and insurance firms which he accused of playing a part in the deaths of thousands of workers.

He said that big business had lobbied government to block new health and safety rules after World War II.

The insurance industry then covered up the dangers posed by the substance to workers to avoid having to pay out compensation.

Mr Flanagan of Merseyside Asbestos Victim Support Group told the Hazards conference at the Abbey Centre, London: "Big business sent private correspondence to government saying they don't think it would be a good idea to have face masks for ship workers.

"It took until 1963 before they were brought in, but as late as the 1970s, employers were still saying it was safe."

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F.D.A. Revokes Approval of Avastin for Use as Breast Cancer Drug - NYTimes.com

2011-11-18T23:33:00.003-05:00

F.D.A. Revokes Approval of Avastin for Use as Breast Cancer Drug - NYTimes.com:
Dr. Hamburg’s decision, outlined in a 69-page memorandum, agrees with the unanimous recommendation made by an F.D.A. advisory committee in June, at the end of a two-day hearing at which some women taking the drug pleaded for its continued approval.
"An initial clinical trial that was the basis for the provisional approval showed that Avastin, combined with the drug paclitaxel, which is also known by the brand name Taxol, delayed the progression of disease by about five and a half months, compared to use of paclitaxel alone.

But in subsequent studies, in which Avastin was combined with different chemotherapy drugs, tumor growth was delayed by one to three months. Avastin did not prolong lives at all, nor did it improve quality of life.

Many breast cancer specialists say that Avastin does appear to work very well for some patients, and some advocates have said the drug should be left on the market for the sake of those patients. But Dr. Hamburg said there was no way to determine in advance who those patients were, so many women would use the drug. “The evidence does not justify broad exposure to the risks of this drug,” she wrote."

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Alabama Legislators Weighing Changes To State's Draconian Immigration Law | ThinkProgress

2011-11-17T18:10:00.001-05:00

Alabama Legislators Weighing Changes To State's Draconian Immigration Law | ThinkProgress:

by Amanda Peterson Beadle

"The realities of how drastically HB 56, Alabama’s extremely harmful immigration law, harms the state economy and daily lives of state residents has become abundantly clear, with farmers watching crops rot because they do not have enough workers, children being bullied in school, and proof of citizenship being required for everything down to getting a library card."

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Big boost for health care : SCOTUSblog

2011-11-16T23:31:00.000-05:00

Big boost for health care : SCOTUSblog:

by Lyle Denniston

"For the second time, a federal judge with undoubted credentials as a conservative jurist has concluded that Congress had ample authority to enact the new federal health care law, giving the Obama Administration a new and significant victory just as the Supreme Court is about to take up the constitutional controversy. Senior U.S. Circuit Judge Laurence H. Silberman of the D.C. Circuit Court, who is among the most conservative of all federal judges, expressed some misgivings on Tuesday about the breadth of the key part of the new law, but nevertheless took only 13 pages of brisk argument to declare that provision to be constitutional."

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F.D.A. Is Urged to Issue More Alerts About Drug Risks - NYTimes.com

2011-11-16T10:57:00.000-05:00

by Bruce Japsen
"The process of posting potential safety signals began in the first quarter of 2008 as a result of legislation signed into law the previous year by President George W. Bush. The law, known as the Food and Drug Administration Amendments Act, directed the agency to conduct regular screenings of its adverse event reporting database and post quarterly reports online. The legislation was passed in the wake of several high-profile drug scandals, including the increased risks of heart attacks among those taking Vioxx, the painkiller that ultimately was withdrawn from the market.
Dr. Sidney Wolfe. director of health research at the Washington nonprofit group Public Citizen who also sits on a drug safety advisory committee to the F.D.A., said: “For most, if not all, of these drugs, alternative (usually older) drugs with comparable efficacy and more established safety records can be found.”

F.D.A. Is Urged to Issue More Alerts About Drug Risks - NYTimes.com:

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Court sets 5 1/2-hour hearing on health care (FINAL) : SCOTUSblog

2011-11-14T23:53:00.000-05:00

Lyle Denniston of Scotus Blog summarizes the Supreme Court's grant of certiorari in the challenges to the Affordable Care Act.

Court sets 5 1/2-hour hearing on health care (FINAL) : SCOTUSblog:

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More Accusations Surface Involving Penn State Coach - NYTimes.com

2011-11-14T23:09:00.000-05:00

More Accusations Surface Involving Penn State Coach - NYTimes.com: "In a phone interview with Bob Costas that was broadcast Monday night on the NBC news program “Rock Center,” Sandusky said he was innocent of the charges against him and declared that he was not a pedophile. He did acknowledge, “I shouldn’t have showered with those kids.”

“I could say that I have done some of those things,” he said of the accusations against him. “I have horsed around with kids. I have showered after workouts. I have hugged them and I have touched their legs without intent of sexual contact.”"

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Paralyzed Fordham Student Sues School After Drunken Fall: Gothamist

2011-11-14T23:01:00.001-05:00

Paralyzed Fordham Student Sues School After Drunken Fall: Gothamist:

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Christie slams N.J. Supreme Court for fast-tracking challenge to judges' health-benefits law | NJ.com

2011-11-14T16:57:00.000-05:00

The New Jersey Supreme Court agreed to hear directly (without waiting for the Appellate Division to rule) the State's appeal from the order of Superior Court Judge Linda Feinberg. She held that the state's constitution bars recent legislation which increases Judges' contributions to pension and health & welfare funds.

Christie slams N.J. Supreme Court for fast-tracking challenge to judges' health-benefits law | NJ.com:

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Jack Raykovitz, Chief of Second Mile, Resigns Amid Penn State Scandal - NYTimes.com

2011-11-14T14:07:00.000-05:00

Jack Raykovitz, Chief of Second Mile, Resigns Amid Penn State Scandal - NYTimes.com: "STATE COLLEGE, Pa. — Jack Raykovitz, the chief executive of the Second Mile foundation for 28 years, has resigned amid a sexual abuse scandal involving the charity’s founder, the former Penn State assistant football coach Jerry Sandusky."

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Is Penn State Liable for the Harm Done to Child Sex Abuse Victims?

2011-11-13T11:42:00.088-05:00

Penn State - Nittany Lion shrine

Penn State's acting President Rodney Erickson has declared his regret to the eight or more victims of the alleged child sex abuse and the leadership's determination to restore the University's honor in the wake of the unfolding sex abuse scandal at its legendary football program. But it will be a long time before 108,000 fans at the stadium can again repeat with full-throated confidence the trademark call and response - WE ARE...PENN STATE".

The tragedy at Penn State has garnered great attention - particularly the university's apparent failure to act effectively to protect young children from Jerry Sandusky - a retired coach alleged to have sexually abused eight boys, some of which acts occurred at the University's football training facility. As I commented the day the Grand Jury's presentment was released it moved me personally because Joe Paterno has been an icon for me and other graduates of my (late, great) Jesuit high school Brooklyn Prep of whose alumni Paterno was among the most illustrious.

Maxwell Kennerly of the Beasley law firm has prepared a good preliminary discussion of the tort liability issues: Can Sandusky's Childhood Sexual Abuse Victims Sue Penn State? Molestation Lawsuit Information

NPR has prepared a Guide to principals and timeline

Those whose acts are most likely to give rise to liability are McQueary and others on the coaching staff, the Athletic Department Director, and the university Vice President for Business. The latter two have been indicted for failure to report the alleged sexual assault to the campus or the state police and for perjury before the grand jury.

Among the issues are those of the credibility of an accuser - Michael McQueary (did he detail to university officials - including Paterno and V.P. Schultz that he actually saw the rape of a 10 year old boy by Sandusky or was his report ambiguous? Did McQueary meet his legal obligation but not his moral obligation, as Gov. Tom Corbett asserted on Meet the press today? That question is equally apt for head coach Joe Paterno.

A major obstacle to university liability may be sovereign immunity. Is the Pennsylvania State University a state agency? The Commonwealth Court has held in Doughty v. City of Philadelphia and Temple University that Temple - a Commonwealth University - is not a state agency. Penn State - a land-grant university - may have the benefit of sovereign immunity as do the colleges in the Pennsylvania State System of Higher Education. In McNichols v. Dept. of Transportation (2002) the immunity doctrine was affirmed by the Commonwealth Court.
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Fuel Fix » Lawmaker calls on BP to pay oilfield supply workers hurt by drilling ban

2011-11-12T20:09:00.000-05:00

Fuel Fix » Lawmaker calls on BP to pay oilfield supply workers hurt by drilling ban: "BP should compensate thousands of oilfield service companies and workers who lost business and wages after last year’s oil spill and a resulting moratorium on deep-water exploration, a Louisiana lawmaker said.

Rep. Jeff Landry, R-La., called on the British oil giant to compensate the workers and businesses, who currently are in a kind of legal limbo — ineligible both for payments under the Gulf Coast Claims Facility administered by Kenneth Feinberg and from a now-shuttered $100 million fund BP established for oil rig workers hurt by the spill."

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Obama's Health Care Law Is Upheld by D.C. Appeals Court | Main Justice

2011-11-08T14:39:00.000-05:00

Obama's Health Care Law Is Upheld by D.C. Appeals Court | Main Justice:

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