TORTS TODAY - course materials & news for Torts, Business Torts, Product Liability, and Remedies students of George Conk at Fordham Law School gconk@law.fordham.edu
Wednesday, September 9, 2015
Tuesday, September 8, 2015
Is there any room for a public employee to legally decline to do any part of her job? Legal Ethics Forum
Legal Ethics Forum: The Kentucky county clerk, the judge who opposes the death penalty and the risk of imposing a religious test for public office: Is there any room for religious or other ethical objection to carrying out a portion of a public official’s duties?
by Richard Painter
I supported same sex marriage in amicus briefs filed with the United States Supreme Court. If I were a county clerk I would issue the licenses as required by law and I would not have to endure conflict between such duties and the teachings of my Church, which supports same sex marriage.
http://www.washingtonpost.com/news/acts-of-faith/wp/2015/07/01/why-the-episcopal-church-is-still-debating-gay-marriage/
But what if I were a judge faced with a death penalty case? Since the 1958 General Convention, U.S. Episcopal bishops have maintained a position against the death penalty.
Religious Organizing Against the Death Penalty, Statement of the 1979 General Conference
Many other religious denominations also oppose capital punishment. Should a judge be required to impose the death penalty even if his fundamental religious belief is that it is wrong – perhaps a grave sin – to order the death of another person even for a horrible crime?
If we go too far in forcing people to undertake official duties regardless of religious beliefs, we will de facto impose a religious test for public office despite Article VI, paragraph 3 of the Constitution:
The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States.***
by Richard Painter
I supported same sex marriage in amicus briefs filed with the United States Supreme Court. If I were a county clerk I would issue the licenses as required by law and I would not have to endure conflict between such duties and the teachings of my Church, which supports same sex marriage.
http://www.washingtonpost.com/news/acts-of-faith/wp/2015/07/01/why-the-episcopal-church-is-still-debating-gay-marriage/
But what if I were a judge faced with a death penalty case? Since the 1958 General Convention, U.S. Episcopal bishops have maintained a position against the death penalty.
Religious Organizing Against the Death Penalty, Statement of the 1979 General Conference
Many other religious denominations also oppose capital punishment. Should a judge be required to impose the death penalty even if his fundamental religious belief is that it is wrong – perhaps a grave sin – to order the death of another person even for a horrible crime?
If we go too far in forcing people to undertake official duties regardless of religious beliefs, we will de facto impose a religious test for public office despite Article VI, paragraph 3 of the Constitution:
The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States.***
Read more HERE
Monday, September 7, 2015
» A School’s Duty of Care to its Students: Munn v. Hotchkiss School — Goldberg & Zipursky New Private Law
A panel of the Second Circuit Court of Appeals has certified to the Connecticut Supreme Court two questions arising from a large verdict in favor of a student who contracted encephalitis from a tick while hiking in a mountain forest on a school trip to China. The plaintiff persuaded the jury that the school had been negligent in failing to warn of risks and instruct on how to protect oneself.
Remarkably the Second Circuit asked the Connecticut Supreme Court to advise it on whether the Hotchkiss school owed a duty of care in such circumstances. As Professors Goldberg and Zipursky point out the question is so simple that it is remarkable the Circuit Court felt it needed help.
It is black letter law as stated in the Third Restatement of Torts - General Principles:
As Goldberg and Zipursky point out the operative question is negligence - that is breach of duty, rather than the existence of a duty. And that seems rather simple conceptually if uncertain as a matter of fact. Of course there are risks in hiking in the forest - here and there. There is a deer tick borne Lyme disease epidemic in Connecticut - a disease which got its moniker from a Connecticut town. A jury on proper proofs could conclude that the school should have investigated the risk of similar hazards in China, and the availability there of appropriate medical treatment. - gwc
» A School’s Duty of Care to its Students: Munn v. Hotchkiss School — Goldberg & Zipursky New Private Law
by John C. P. Goldberg & Benjamin C. Zipursky
Having participated in intensive debates among tort scholars over the place of duty in negligence law, we were especially interested to see the Second Circuit’s recent decision in Munn v. Hotchkiss School, No. 14–2410–cv., 2015 WL 4604288 (2nd Cir. Aug. 3, 2015). (Thanks to the Volokh Conspiracyand How Appealing for bringing the case to our attention.)
Facts and Outcome in the Federal Courts.
Fifteen-year old Cara Munn was bitten by a tick while hiking on a forested mountain in China during a summer trip organized by Hotchkiss, her New England prep school. The tick transmitted encephalitis, which in turn caused Cara serious neurological damage, leaving her permanently unable to speak. Cara and her parents sued Hotchkiss in federal district court, arguing that the school was negligent under Connecticut law for failing to warn them that the trip might bring her into contact with disease-bearing insects, and in failing to take steps to ensure that Cara took protective measures such as using insect repellant, wearing proper clothes while walking in forested areas, and checking for ticks. A jury awarded them $10 million in economic damages and $31.5 million in noneconomic damages.
Hotchkiss appealed. A unanimous decision by a very able Second Circuit panel comprised of Judges Walker, Lynch, and Lohier neither affirmed nor reversed. Instead, in an opinion by Judge Walker, it certified two issues to the Supreme Court of Connecticut: (1) whether public policy supports the imposition of a duty of care in such circumstances, and (2) whether the damages award was excessive.
What’s Wrong With the Decision to Certify.....
KEEP READING
Remarkably the Second Circuit asked the Connecticut Supreme Court to advise it on whether the Hotchkiss school owed a duty of care in such circumstances. As Professors Goldberg and Zipursky point out the question is so simple that it is remarkable the Circuit Court felt it needed help.
It is black letter law as stated in the Third Restatement of Torts - General Principles:
§ 6 Duty: Even if the defendant’s negligent conduct is the legal cause of the plaintiff’s physical harm, the [defendant] is not liable for that harm if the court determines that the defendant owes no duty to the plaintiff. Findings of no duty are unusual, and are based on judicial recognition of special problems of principle or policy that justify the withholding of liability.There appears to be no special problem of principle here - particularly given the history of care owed by guardians, custodians, and schools for those entrusted to their care. The Court was apparently distracted by the remoteness of the particular harm suffered. But that is hardly the same sort of circumstance as justified a finding of no duty in Port Authority v. Acadian - the 1993 World Trade Center case against the manufacturers of the fertilizer used as a prime ingredient in the truck bomb. There remoteness of risk led to dismissal as it had in the Oklahoma City Murrah Federal Building bombing by Tim McVeigh.
As Goldberg and Zipursky point out the operative question is negligence - that is breach of duty, rather than the existence of a duty. And that seems rather simple conceptually if uncertain as a matter of fact. Of course there are risks in hiking in the forest - here and there. There is a deer tick borne Lyme disease epidemic in Connecticut - a disease which got its moniker from a Connecticut town. A jury on proper proofs could conclude that the school should have investigated the risk of similar hazards in China, and the availability there of appropriate medical treatment. - gwc
» A School’s Duty of Care to its Students: Munn v. Hotchkiss School — Goldberg & Zipursky New Private Law
by John C. P. Goldberg & Benjamin C. Zipursky
Having participated in intensive debates among tort scholars over the place of duty in negligence law, we were especially interested to see the Second Circuit’s recent decision in Munn v. Hotchkiss School, No. 14–2410–cv., 2015 WL 4604288 (2nd Cir. Aug. 3, 2015). (Thanks to the Volokh Conspiracyand How Appealing for bringing the case to our attention.)
Facts and Outcome in the Federal Courts.
Fifteen-year old Cara Munn was bitten by a tick while hiking on a forested mountain in China during a summer trip organized by Hotchkiss, her New England prep school. The tick transmitted encephalitis, which in turn caused Cara serious neurological damage, leaving her permanently unable to speak. Cara and her parents sued Hotchkiss in federal district court, arguing that the school was negligent under Connecticut law for failing to warn them that the trip might bring her into contact with disease-bearing insects, and in failing to take steps to ensure that Cara took protective measures such as using insect repellant, wearing proper clothes while walking in forested areas, and checking for ticks. A jury awarded them $10 million in economic damages and $31.5 million in noneconomic damages.
Hotchkiss appealed. A unanimous decision by a very able Second Circuit panel comprised of Judges Walker, Lynch, and Lohier neither affirmed nor reversed. Instead, in an opinion by Judge Walker, it certified two issues to the Supreme Court of Connecticut: (1) whether public policy supports the imposition of a duty of care in such circumstances, and (2) whether the damages award was excessive.
What’s Wrong With the Decision to Certify.....
KEEP READING
California police killings database reveals 'clear racial disparities' | US news | The Guardian
California police killings database reveals 'clear racial disparities' | US news | The Guardian
by Ciara McCarthy and Nadja Popovich
Black men have been killed by police in California at eight times the rate of other residents over the past decade, according to records released under the first in a series of new state initiatives to disclose data on the use of deadly force by law enforcement.
Statistics published by the California attorney general, Kamala Harris, stated that about 19% of almost 1,000 homicides by law enforcement recorded between 2005 and 2014 were against African American men, who made up only about 3% of the state’s population.
Harris said last week that “clear racial disparities” had emerged from the figures, which also showed African Americans were arrested and died in custody at disproportionately high rates.***
On Wednesday, Harris unveiled a new website containing what she called a “treasure trove of data” on interactions between police and the public. The Open Justice portal includes figures regarding arrest rates, deaths in custody and officers killed or assaulted. This year, several other states have taken action to release more information.
“Instead of designing systems based on some blind adherence to tradition, let’s apply metrics, let’s count what is happening,” Harris said. She later added: “The bottom line is, the people have a right to know what’s going on.”
Since 2005, police and law enforcement agencies in California have been required to submit to state authorities detailed reports about deaths in custody. But the information was made accessible and searchable for the first time last week.
2015 may be one of the safest years for law enforcement in a quarter century | US news | The Guardian
2015 may be one of the safest years for law enforcement in a quarter century | US news | The Guardian
by Jamille Lartey
Despite urgent warnings from police and others about a “war on cops” allegedly linked to the Black Lives Matter protest movement, statistics show 2015 is in fact shaping up to be one of the safest years for law enforcement in a generation.
According to the Officer Down Memorial Page (ODMP), which keeps data on officer deaths going back over 100 years, 24 officers have been shot and killed by suspects this year. This puts the US on pace for 36 non-accidental, firearm-related police fatalities in 2015. Each one of such deaths is a tragedy for the officers killed, their families and the communities they serve, but this would be the lowest total in 25 years, aside from 2013 which saw 31 such deaths.
A series of recent high-profile police deaths has sparked much of the rhetoric tying violence against police to anti-police-brutality protesters. On Friday, Harris County sheriff’s deputy Darren Goforth was gunned down from behind while filling his car at a gas station. The suspect, Shannon Miles, was arrested shortly thereafter and charged with capital murder. Miles has a history of severe mental illness and was found mentally incompetent to stand trial in 2012.
Neither Miles, nor any other person suspected of killing a police officer in 2015, has claimed affiliation with the Black Lives Matter movement or any related organization. Still, the attempt to make a connection has persisted as people work to make sense of the senseless killing.
Why The New York Times' Clinton Error Is a Big Deal - The Atlantic
As presidential politics closes in on us there will be more nonsense reporting about Hillary Clinton. Benghazi, email. There is no there there. Nor was there a there when the Times erroneously reported that there had been a criminal referral of Hillary Clinton. As Ornstein points out it was incompetent reporting. - gwc
Why The New York Times' Clinton Error Is a Big Deal - The Atlantic
by Norm Ornstein
I have read The New York Times since I was a teenager as the newspaper to be trusted, the paper of record, the definitive account. But the huge embarrassment over the story claiming a criminal investigation of Hillary Clinton for her emails—leading the webpage, prominent on the front page, before being corrected in the usual, cringeworthy fashion of journalists who stonewall any alleged errors and then downplay the real ones—is a direct challenge to its fundamental credibility. And the paper’s response since the initial huge error was uncovered has not been adequate or acceptable.
This is not some minor mistake. Stories, once published, take on a life of their own. If they reinforce existing views or stereotypes, they fit perfectly into Mark Twain’s observation, “A lie can travel halfway around the world while the truth is putting on its shoes.” (Or perhaps Twain never said it, in which case the ubiquity of that attribution serves to validate the point.) And a distorted and inaccurate story about a prominent political figure running for president is especially damaging and unconscionable.
Why The New York Times' Clinton Error Is a Big Deal - The Atlantic
by Norm Ornstein
I have read The New York Times since I was a teenager as the newspaper to be trusted, the paper of record, the definitive account. But the huge embarrassment over the story claiming a criminal investigation of Hillary Clinton for her emails—leading the webpage, prominent on the front page, before being corrected in the usual, cringeworthy fashion of journalists who stonewall any alleged errors and then downplay the real ones—is a direct challenge to its fundamental credibility. And the paper’s response since the initial huge error was uncovered has not been adequate or acceptable.
This is not some minor mistake. Stories, once published, take on a life of their own. If they reinforce existing views or stereotypes, they fit perfectly into Mark Twain’s observation, “A lie can travel halfway around the world while the truth is putting on its shoes.” (Or perhaps Twain never said it, in which case the ubiquity of that attribution serves to validate the point.) And a distorted and inaccurate story about a prominent political figure running for president is especially damaging and unconscionable.
Court Ruling Jeopardizes Funding for Kansas Judiciary - The Atlantic
Court Ruling Jeopardizes Funding for Kansas Judiciary - The Atlantic
by Russell Berman
by Russell Berman
What began as merely a fiscal mess in Kansas has become a full-blown judicial crisis.
On Wednesday, a district court ruled against the state, and threw out a 2014 law passed by Republicans that took the power of appointing chief judges away from the Kansas Supreme Court and handed it to local judges. But that rather simple question of judicial administration could have further-reaching consequences, thanks to a provision in a second law passed by the legislature earlier this spring that would cut off funding for the state’s entire court system, if the 2014 law was struck down.
Kansas officials were so worried about the consequences of the court’s decision that the state’s attorney general, Derek Schmidt, successfully filed to have the ruling stayed until the courts rule on an appeal and the validity of the 2015 law.
My immediate concern ... is that the court does not appear to have decided the validity of a ‘nonseverability’ clause contained in a later statute, which means today’s decision could effectively and immediately shut off all funding for the judicial branch of state government.
It is critical to keep the state judiciary operating.
The current dispute flows from the budget battle: Ever since the state Supreme Court in 2014 ordered the legislature to increase funding for education, Governor Sam Brownback and his allies in Topeka have sought to wrest power over appointments from the Supreme Court and make it easier to replace judges. (A majority of the justices on the high court were appointed by Brownback’s Democratic predecessor, Kathleen Sebelius.)
But critics of the legislature say Republican lawmakers have gone way too far, particularly when they crafted what one lawyer called “a draconian” contingency plan that sought to bully the courts into siding with them. “I think a fair word is extortion,” said Pedro Irigonegaray, a Kansas attorney representing Judge Larry Solomon, the chief judge who challenged the 2014 law on judicial appointments. “If you don’t do this, your salary is gone. That type of strong-arm technique did not happen by accident.” He and other lawyers have now filed a lawsuit challenging the second law in court. In a phone interview, Irigonegaray reminded me that he was born in Havana, Cuba. “This is the type of thing that we might see in a country that is undemocratic,” he said. “But in America, we deserve better.”
A Class Bias in rights Litigation? A Different Take on Kim Davis//Mark Graber // Balkinization
Balkinization: A Different Take on Kim Davis
by Mark Graber
Put more broadly and more polemically, the fuss over Kim Davis demonstrates that the Constitution of the United States remains an effective means of combatting governmental policies that inflict stigmatic harm on members of the upper-classes, but a far less effective means of combatting government policies that inflict material deprivation on the lower classes. Consider simply the following. Who is likely to be inconvenienced more in a red state, A same-sex couple wanting to exercise their constitutional right to be married or a poor women more than twelve weeks pregnant who has decided to exercise her constitutional right to have an abortion.
by Mark Graber
Put more broadly and more polemically, the fuss over Kim Davis demonstrates that the Constitution of the United States remains an effective means of combatting governmental policies that inflict stigmatic harm on members of the upper-classes, but a far less effective means of combatting government policies that inflict material deprivation on the lower classes. Consider simply the following. Who is likely to be inconvenienced more in a red state, A same-sex couple wanting to exercise their constitutional right to be married or a poor women more than twelve weeks pregnant who has decided to exercise her constitutional right to have an abortion.
Does anyone know what is going on with Kim Davis in Rowan County, KY? // Marty Lederman // Balkinization
Marty Lederman (Georgetown Law) tries to parse out the situation in Kentucky where federal judge David Bunning has thrown County clerk Kim Davis into the brig because she is in contempt of preliminary injunction to cease her "no marriage licenses policy". The judge has spared the Deputy Clerks who have agreed to perform the ministerial act of issuing marriage licenses.
But if you can get married in Rowan County by getting a license from a Deputy clerk, why is Kim Davis in jail? She thinks it is because only she can authorize the Deputies to issue licenses, and she refuses to do it because she does not approve of same sex marriage, and issuance by her office of such a license would make her complicit in something that violates her conscience. Mike Huckabee agrees with her, as presumably, does Catholic Neo-Con Robert George. They say Obergefell v. Hodges is today's Dred Scott - an act of judicial lawlessness (they're wrong about Dred Scott).
Judge Bunning could issue marriage licenses (FRCvP 70 - on my Miller v. Davis resource page), or appoint a master to do it, but doesn't want to take on that function when there is an office in Rowan charged by Kentucky law with the duty. In any event the federal court has power here - as in the school desegregation cases - to override state law, as Cornell's Michael Dorf points out.
Personally I think that Davis is wrong - that there is nothing more personal about her office issuing a marriage license than the signature of Jacob Lew, Secretary of the Treasury on the twenty dollar bill in my pocket. It is the State that acts, not her - she could readily be replaced by an App. And probably should be.
But this is a post to draw attention to Marty Lederman's quite thorough survey, which is well worth reading. He asks four questions:
Does anyone know what is going on with Kim Davis in Rowan County, KY? // Marty Lederman // Balkinization
But if you can get married in Rowan County by getting a license from a Deputy clerk, why is Kim Davis in jail? She thinks it is because only she can authorize the Deputies to issue licenses, and she refuses to do it because she does not approve of same sex marriage, and issuance by her office of such a license would make her complicit in something that violates her conscience. Mike Huckabee agrees with her, as presumably, does Catholic Neo-Con Robert George. They say Obergefell v. Hodges is today's Dred Scott - an act of judicial lawlessness (they're wrong about Dred Scott).
Judge Bunning could issue marriage licenses (FRCvP 70 - on my Miller v. Davis resource page), or appoint a master to do it, but doesn't want to take on that function when there is an office in Rowan charged by Kentucky law with the duty. In any event the federal court has power here - as in the school desegregation cases - to override state law, as Cornell's Michael Dorf points out.
Personally I think that Davis is wrong - that there is nothing more personal about her office issuing a marriage license than the signature of Jacob Lew, Secretary of the Treasury on the twenty dollar bill in my pocket. It is the State that acts, not her - she could readily be replaced by an App. And probably should be.
But this is a post to draw attention to Marty Lederman's quite thorough survey, which is well worth reading. He asks four questions:
The Law
So where do things stand now? Let’s break it down into four key questions:
1. If licenses issued in Rowan County included Davis’s name, would she be authorizing or approving the subsequent marriages?
2. Must the licenses include the County Clerk’s name, “Kim Davis,” in order to be valid?
3. Can Deputy Clerk Mason issue licenses if Clerk Davis has directed him not to do so?
4. Was Judge Bunning justified in holding Davis in contempt and remanding her to federal custody?
Does anyone know what is going on with Kim Davis in Rowan County, KY? // Marty Lederman // Balkinization
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