OTHERWISE: Could three seemingly simple laws really reduce US gun deaths by more than 90 percent?

OTHERWISE: Could three seemingly simple laws really reduce US gun deaths by more than 90 percent?

from CNN:

from CNN:

Passing federal laws that require universal background checks for firearm purchases, background checks on ammunition purchases and firearm identification could reduce the rate of U.S. gun deaths by more than 90%, according to a new study.  "We wanted to see which restrictive gun laws really work, as opposed to saying 'restrictive laws work,' and figure out if we are pushing for a law which might not work," said Bindu Kalesan, assistant professor of medicine at Boston University and lead author of the study...  in The Lancet.

Researchers arrived at the projection by looking at the number of gun-related deaths in every state in 2010 and the types of laws that existed in those states in 2009, including restrictive laws, such as background checks and child access prevention laws, and permissive laws, such as stand-your-ground laws.  They took into account differences in rates of gun ownership, unemployment and homicides that did not involve guns deaths.  Out of the 25 existing state laws that Kalesan and her colleagues studied, nine were associated with lower rates of gun-related deaths.

The researchers found the largest effects for universal background checks, which were associated with a 39% reduction in death, and ammunition background checks, which were associated with an 18% reduction in death. Laws around firearm identification, which make it possible to determine the gun that fired a bullet, were associated with a 16% reductions in deaths.

Researchers projected that federal laws expanding background checks for firearms purchases would reduce the U.S. gun death rate by 57%, while background checks for ammunition purchases would cut gun death rates by 81% and firearm identification would reduce the rate by 83%. The researchers said it would take many years to lower the rates so far.  Although a federal policy known as the Brady Law requires background checks on individuals who want to buy a firearm from a licensed dealer, it leaves a large gap, as an estimated 40% of firearms are acquired through unlicensed sellers, such as some online and at gun shows....

The researchers found that nine of the 25 laws they analyzed were linked to higher rates of gun-related deaths. Another seven laws did not seem to have an impact one way or the other on gun-related deaths.  Some of the laws that were linked with greater numbers of gun related deaths came as a surprise to the researchers. For example, bans on assault weapons, such as semi-automatic guns, were associated with a 15% increase in mortality....

In an editorial published with the study, Harvard School of Public Health Professor David Hemenway said the study was "a step in the right direction" to understand the scientific evidence about policies to reduce gun violence. But, he said, cutting mortality rates so dramatically is more complicated than simply implementing background checks for firearms and ammunition. "That result is too large -- if only firearm suicide and firearm homicide could be reduced so easily," Hemenway wrote.

Alabama gives up same sex marriage fights//Howard Wasserman /Prawfs Blog

 Alabama Probate judges are issuing marriage licenses to same sex couples - because they are obeying a federal court order, although the Alabama Chief Justice's directive to follow Alabama law remains in place, as Martin Lederman and Howard Wasserman explain. - gwc

Alabama Supreme Court dissmisses same-sex marriage mandate // Prawfs Blawg

The Supreme Court of Alabama today dismissed the mandamus action, and all pending motions, filed by several advocacy groups to stop probate judges from issuing marriage licenses to same-sex couples. I have not had a chance to read it yet; it includes a lengthy opinion from Chief Justice explaining why he is no longer recusing himself from the action and why Obergefell is evil.

The upshot is that there is no longer any state-court order obligating probate judges to act inconsistently with Obergefell. Some still might, of course, but they cannot rely on the state court to justify doing so.
More (no pun intended) later this weekend.

Abolish Absolute Governmental Immunity in Snow and Ice Cases | New Jersey Law Journal

When Chris Christie became Governor of New jersey, pledging to "turn Trenton upside down" he aimed for the repudiation of the state Supreme Court's dedication to equitable school funding and open housing.  Although he has not achieved that, he has got a Republican majority which has been chipping away at the court's legacy of expansion of tort liability.  The Law Journal Editorial Board is not reconcile dto that path.  Here it urges the court to take a modest step forward to hold liable government enterprises like the state's mass transit operator NJ Transit. - gwc

Abolish Absolute Governmental Immunity in Snow and Ice Cases | New Jersey Law Journal

by the Editorial Board

In the petition for certification now before it in Mann v. New Jersey Transit —a snow and ice case—the New Jersey Supreme Court has an opportunity to answer a question that has long discomfited some judges on the Appellate Division: Should a mass transit operator's Tort Claims Act liability for dangerous conditions of its property be subject to the same duty of care as a public housing authority's?


At common law, the sovereign was immune to suit absent consent. But as government expanded, providing housing and mass transit, pressure grew for government to bear liability comparable to that of private businesses. The 1946 Federal Tort Claims Act was among the first to do so. In the 1968 case Jackson v. Hankinson and Bd. of Ed. of New Shrewsbury, our Supreme Court said:

"And although there has thus far been no express and complete disavowal of active wrongdoing terminology, there has been a shift towards frank recognition that municipal entities, along with all others, should justly be held accountable for injuries resulting from their tortious acts and omissions under ordinary principles of negligence, except, as a matter of policy, in situations involving so-called discretionary determinations and the like."

Later that year, in Miehl v. Darpino, the court refused to extend a cause of action to a snow hazard created by plowing snow into a bank that made it hazardous to cross at an intersection. The municipality's efforts to clear the roads should not create liability where none would exist if they had not acted at all, the court decided. Spurred by the prospect that the court could sweep away governmental immunity, the Legislature in 1972 adopted the Tort Claims Act. Though Title 59 generally embraced the court's call for reform, it codified the Miehl rule, retaining governmental immunity for injuries "caused solely by the effect on the use of streets and highways of weather conditions."

Twenty years later, the court construed the Tort Claims Act in Bligen v. Jersey City Housing Authority (1993). In an opinion by Justice Marie Garibaldi, the court found that neither the Tort Claims Act nor the principle of common law governmental immunity barred imposition of liability upon a public housing authority. The court distinguished the agency's role as property manager of its "internal driveways" from the statute's grant of immunity for snow removal on "streets and highways."

Since then, the Appellate Division has sharply limited Bligen to its facts. Other public entities have been held to be immune in a raft of snow and ice cases, a result often thought to be commanded by Miehl, commonly referred to as the "common law rule". If by that courts mean that Miehl preceded the Tort Claims Act, then the designation is accurate. But if one has in mind a mass transit operator like New Jersey Transit, the common law rule has long been that of Kelly v. Manhattan Ry. Co. (1899), a snow and ice case:

"...[I]n the approaches to the cars, such as platforms, halls, stairways and the like, a less degree of care is required, and for the reason that the consequences of a neglect of the highest skill and care which human foresight can attain to are naturally of a much less serious nature. The rule in such cases is that the carrier is bound simply to exercise ordinary care in view of the dangers to be apprehended."

In the 1998 case Lathers v. Township of West Windsor, which involved a fall on an icy path at a municipal building, the court felt constrained by Bligen and its progeny. But one panel member invited our Supreme Court to "review the existing law, perhaps to declare that sidewalk ice or snow hazards be treated as any other dangerous condition under the Tort Claims Act." The Supreme Court denied certification.

This past December, Judge Jack Sabatino, concurring in the dismissal of yet another snow and ice case—Mann v. New Jersey Transit Corporation—renewed that call. Sabatino pointed out the elementary nature of the negligence claim and the need to treat like cases alike. No substantial basis exists to distinguish New Jersey Transit's 159 stations from the extensive properties of municipal housing authorities. Fear of excessive liability should be tamped down by the requirement of Title 59 that liability for unsafe conditions of public property is to be found only if the public entity's conduct is "palpably unreasonable." Governmental entities also have the benefit of the Brooks v. Odom (1997) rule that "a plaintiff must sustain a permanent loss of the use of a bodily function that is substantial."

The court now has before it a petition for certification. The construction for which Sabatino calls is well within the court's power to develop tort law through statutory interpretation, as it did in Bligen. If the court embraces the recognition of a duty on public mass transit operators to assure safe transit on their properties, the Legislature can study the issue and address it. But our 40 years of experience with the Tort Claims Act shows that the slippery slope arguments that are often raised are no threat here. The massive New York City bus and subway system, for example, has not been reduced to insolvency by the long established duty of ordinary care. In Bethel v. NYCTA (1998) the New York Court of Appeals declared that on or off the rails the Transit Authority has the duty of ordinary care in the management of its hundreds of stations, terminals, fleets of vehicles and rolling stock.

Our Supreme Court long ago recognized the anomaly of governmental immunity for negligent maintenance of facilities. It is time to finally abandon the rule of absolute immunity, which encourages the derisive view that slipshod efforts are "close enough for government work." We think the court should grant the petition and eliminate the anomaly of absolute immunity in snow and ice cases against some but not other public agencies.Read more: http://www.njlawjournal.com/id=1202751473821/Abolish-Absolute-Governmental-Immunity-in-Snow-and-Ice-Cases#ixzz42Ke2Nf3a

Lessons From Flint | Legal Planet

 Lessons From Flint | Legal Planet

by Jim Salzman // UCLA School of Law


A public-minded researcher discovers serious contamination of drinking water. His efforts to alert local officials are rebuffed. Concerned over how this will affect their reputation and the town’s economy, the authorities sit on the evidence and deny any problems. All the while, trusting people continue to drink unsafe water.

While the setting may call to mind recent events in Flint, Michigan, this is actually the plot from Henrik Ibsen’s classic 1882 play, An Enemy of the People. The places and dates have changed, but the challenges of providing drinking water remain. Just how safe really is our water and how can we make it safer?

We marked the fortieth anniversary of the Safe Drinking Water Act in 2014. In many respects, it was a date well worth celebrating. Most Americans take tap water for granted. We enjoy some of the safest and most reliable drinking water in the world. More than 90 percent of customers receive water that meets all standards all the time. This is a far cry from a century ago, when waterborne illnesses and deaths were commonplace. The famed aviator brother, Wilbur Wright, died of typhoid in 1914. The 1916 polio epidemic required quarantines in New York City, where 9,000 cases were reported. Today, these and other waterborne diseases have virtually disappeared in America. Glass half full.

Yet the glass remains half empty. Just ask the residents in Charlestown, West Virginia, where two years ago a chemical spill shut down water supplies, or in Toledo, Ohio, where seven months later an algal bloom closed their water system. The threats in those cases were due to causes beyond the reach of the Safe Drinking Water Act – a breach in a chemical storage tank atop a river bank in Charlestown, and excessive nutrients from agriculture flowing into Lake Erie in Toledo. These incidents made clear that action to ensure safe drinking water needs to start well upstream of the water treatment plant.

The Flint case is different and more disturbing.

We, as water drinkers, must ultimately rely on the actions of regulators and water authorities, trusting that the water coming out of our tap is in fact safe to drink. Few consumers have the technological savvy or means to test their water for arsenic, Cryptosporidium, lead, or the myriad other potential threats, much less at concentrations of parts part million. One can use the popular water filters, which will remove some pollutants but not lead and many others. Ultimately, we have no choice but to trust the experts.

That’s why Flint is so particularly damaging. Local, state, and federal regulators’ failure to act in a timely manner harmed not only Flint residents but undermined the public’s confidence in our water supply management more generally. In California, the ongoing drought has water suppliers looking closely at directing highly treated waste water back into the mains for household use. Will consumers trust the authorities to treat the water sufficiently?....

Alabama Supreme Court dismisses SSM mandamus //PrawfsBlawg

 Alabama Probate judges are issuing marriage licenses to same sex couples - because they are obeying a federal court order, although the Alabama Chief Justice's directive to follow Alabama law remains in place, as  Martin Lederman  and Howard Wasserman explain. - gwc  3/6/16

Alabama Supreme Court dissmisses same-sex marriage mandate // Prawfs Blawg

The Supreme Court of Alabama today dismissed the mandamus action, and all pending motions, filed by several advocacy groups to stop probate judges from issuing marriage licenses to same-sex couples. I have not had a chance to read it yet; it includes a lengthy opinion from Chief Justice explaining why he is no longer recusing himself from the action and why Obergefell is evil.

The upshot is that there is no longer any state-court order obligating probate judges to act inconsistently with Obergefell. Some still might, of course, but they cannot rely on the state court to justify doing so.
More (no pun intended) later this weekend.

OTHERWISE: Civilian Complaint Review Board - APU and Police Discipline

OTHERWISE: Civilian Complaint Review Board - APU and Police Discipline

Does the Biden speech undermine the case for Supreme Court confirmation hearings? - John Witt - Balkinization:

 Does the Biden speech undermine the case for Supreme Court confirmation hearings? - John Witt - Balkinization:

Vetting Brian Sandoval: who might (other than Ohio State fans) get super excited about his possible SCOTUS nomination? //Sentencing Law and Policy:

Could a RINO make it through the Senate Gauntlet and sit in Antonin Scalia's seat? - GWC

Sentencing Law and Policy: Vetting Brian Sandoval: who might (other than Ohio State fans) get super excited about his possible SCOTUS nomination?

by Doug Berman // Ohio State Law School



This afternoon I receive two email news alerts about a new SCOTUS nominee "front-runner": Nevada GOP Gov Brian Sandoval. I had been planning to do a post about Gov Sandoval as an interesting possible SCOTUS candidate over the weekend, but a few folks I spoke with suggested it would be almost silly to imagine Prez Obama nominating a GOP elected official. But, this Washington Postarticle, headlined "Republican governor of Nevada Brian Sandoval being considered for Supreme Court," suggests that at least a few Beltway insiders are having silly thoughts similar to mine. Here are the basics with the Post:


Brian Sandoval, the centrist Republican governor of Nevada, is being vetted by the White House for a possible nomination to the Supreme Court, according to two people familiar with the process. Sandoval is increasingly viewed by some key Democrats as perhaps the only nominee President Obama could select who would be able to break a Republican blockade in the Senate.

Senate Majority Leader Mitch McConnell (R-Ky.) on Tuesday pledged “no action” on any Supreme Court nomination before November’s election, saying the decision ought to be left to the next president. The White House declined to comment Wednesday for this story. White House press secretary Josh Earnest has emphasized in recent days that the president has not arrived at a short list of potential nominees.

The nomination of a GOP governor — albeit one with a bipartisan record — could break that resolve.

Sandoval met Monday with Senate Minority Leader Harry M. Reid, a fellow Nevadan with whom he enjoys cordial relations. A person familiar with the conversation said that while Sandoval told Reid he had not made a final decision on whether he would accept a Supreme Court nomination, he would allow the vetting process to move forward. Another person in Nevada familiar with the process confirmed that the process is underway....

It is unclear how many potential nominees are undergoing White House vetting for the high court vacancy left by Justice Antonin Scalia’s death. Obama was seen last week carrying a thick binder of materials on potential picks to review.

Obama outlined his thinking in a guest posting on SCOTUSblog Wednesday [available here]: “A sterling record. A deep respect for the judiciary’s role. An understanding of the way the world really works. That’s what I’m considering as I fulfill my constitutional duty to appoint a judge to our highest court.”

Some Democrats believe that nominating Sandoval could fracture the front of Republican opposition and force McConnell to take up the nomination in this contentious election year. It would also put on the spot a handful of Senate Republicans who are up for reelection in blue states in November.

Obama: A Responsibility I Take Seriously // SCOTUS Blog

A Responsibility I Take Seriously : SCOTUSblog
by Barack Obama

The Constitution vests in the President the power to appoint judges to the Supreme Court. It’s a duty that I take seriously, and one that I will fulfill in the weeks ahead.

It’s also one of the most important decisions that a President will make. Rulings handed down by the Supreme Court directly affect our economy, our security, our rights, and our daily lives.

Needless to say, this isn’t something I take lightly. It’s a decision to which I devote considerable time, deep reflection, careful deliberation, and serious consultation with legal experts, members of both political parties, and people across the political spectrum. And with thanks to SCOTUSblog for allowing me to guest post today, I thought I’d share some spoiler-free insights into what I think about before appointing the person who will be our next Supreme Court Justice.

First and foremost, the person I appoint will be eminently qualified. He or she will have an independent mind, rigorous intellect, impeccable credentials, and a record of excellence and integrity. I’m looking for a mastery of the law, with an ability to hone in on the key issues before the Court, and provide clear answers to complex legal questions.

Second, the person I appoint will be someone who recognizes the limits of the judiciary’s role; who understands that a judge’s job is to interpret the law, not make the law. I seek judges who approach decisions without any particular ideology or agenda, but rather a commitment to impartial justice, a respect for precedent, and a determination to faithfully apply the law to the facts at hand.

But I’m also mindful that there will be cases that reach the Supreme Court in which the law is not clear. There will be cases in which a judge’s analysis necessarily will be shaped by his or her own perspective, ethics, and judgment. That’s why the third quality I seek in a judge is a keen understanding that justice is not about abstract legal theory, nor some footnote in a dusty casebook. It’s the kind of life experience earned outside the classroom and the courtroom; experience that suggests he or she views the law not only as an intellectual exercise, but also grasps the way it affects the daily reality of people’s lives in a big, complicated democracy, and in rapidly changing times. That, I believe, is an essential element for arriving at just decisions and fair outcomes.

A sterling record. A deep respect for the judiciary’s role. An understanding of the way the world really works. That’s what I’m considering as I fulfill my constitutional duty to appoint a judge to our highest court. And as Senators prepare to fulfill their constitutional responsibility to consider the person I appoint, I hope they’ll move quickly to debate and then confirm this nominee so that the Court can continue to serve the American people at full strength.

- See more HERE 

GSK Ruling Raises Bar For Pharma On Brand Label Warnings - Law360

GSK Ruling Raises Bar For Pharma On Brand Label Warnings - Law360


 By Sindhu SundarLaw360, New York (February 19, 2016, 4:42 PM ET) 

-- An Illinois federal court's finding thatGlaxoSmithKline PLC didn't show that federal regulators would have rejected a warning that its antidepressant Paxil could make adult patients suicidal sets a high bar of proof for branded-drug makers under evidence standards outlined by the Supreme Court's landmark Wyeth ruling, attorneys say.

The Feb. 11 ruling by U.S. District Judge James Zagel denied GSK's summary judgment motions against a negligence suit by plaintiff Wendy Dolin, whose husband, Reed Smith LLPpartner Stewart Dolin, committed suicide in 2010 after taking a generic version of the drug.

Judge Zagel's ruling, which paves the way for the case to go to trial in September, rejected GSK's argument that Wendy Dolin's claims are preempted by the U.S. Food and Drug Administration's oversight of pharmaceuticals. He ruled that under the Supreme Court's landmark 2009 ruling in Wyeth v. Levine, drugmakers must show "clear evidence" that the FDA would have rejected a heightened warning sought by a plaintiff. In this case, Dolin claimed GSK should have warned on Paxil's label that the drug had posed a risk of suicidality among adult patients.

Judge Zagel's ruling raises the bar for "clear evidence" under Wyeth by essentially requiring branded-drug makers to actually show that the FDA rejected — even if only informally — a heightened warning, attorneys say.
*****
The case is Dolin v. SmithKline Beecham Corp. et al., case number 1:12-cv-06403, in the U.S. District Court for the Northern District of Illinois