Opinion | ‘Woe Is You,’ White People Keep Telling Us - The New York Times

Opinion | ‘Woe Is You,’ White People Keep Telling Us - The New York Times: This virus is poised to rip through black neighborhoods like mine.

From Detroit to Minneapolis - Jeremiah Ellison - Municipal Council Member - Minneapolis

Legal Malpractice Claims Against Public Defenders Subject to Tort Claims Act, Justices Rule | New Jersey Law Journal

A man wrongly imprisoned for twelve years in a New Jersey sexual assault case was denied recovery in his legal malpractice action against a public defender by the state's Supreme Court today in Chaparro-Nieves v. Office of the Public Defender.

The court ruled that because Antonio Chaparro Nieves  reported no psychiatric or other medical treatment he failed to qualify under the state's tort claims act which sets a $3,00 minimum threshold for "emotional" harm cases.  Only Associate Justice Barry Albin parted ways - arguing that a claim for compensation for loss of liberty should not be "conflated" with one for emotional distress.

I argued for the New Jersey State Bar Association that the part-time lawyers in private practice hired as "trial pool" attorneys by the state's Office of the Public Defender are entitled to defense and indemnification by the state in legal malpractice cases.

Nieves did, however, receive compensation under the state's Mistaken Conviction Compensation Act which caps damages for lost liberty at $50,000 per year or twice their salary in the year preceding imprisonment.

If there is a silver lining in the case it is that pool attorneys - almost invariably solo practitioners working for a very modest fee set by state law - will not be faced with burdensome professional liability insurance premiums for undertaking such work.  And in cases such as Nieves in the future the rather modest financial threshold will normally be overcome.  Under the Tort Claims Act NJSA 59:1-1 there is no cap on damages. - GWC

Legal Malpractice Claims Against Public Defenders Subject to Tort Claims Act, Justices Rule | New Jersey Law Journal: The ruling means anyone wishing to sue the public defender for legal malpractice must comply with the strict timetable of the TCA.

"Attorneys serving under the public defender, whether full-time staff attorneys or contracted pool attorneys, meet the definition of an OPD employee for TCA purposes, and have been treated as public employees in previous cases, Justice Jaynee LaVecchia wrote for the court. The OPD is an office within the executive branch, whose head is appointed by the governor with the advice and consent of the state Senate, LaVecchia said. It relies on state funding appropriated through the annual state budget."

Bernard Chazen - 96 - won landmark product liability case Henningsen v. Bloomfield Motors

Bernard Chazen, of Englewood New Jersey, a partner in the father and son firm Chazen & Chazen, led an outstanding life as a lawyer. Many of us set out to have an impact on the law.  Bernard Chazen did.  In 1959 he persuaded the New Jersey Supreme Court to strike down as a matter of "social justice" the legal obstacles that the courts and automobile companies had placed in the way of recovery for injuries due to defective products.
The court's opinion in Henningsen v. Bloomfield Motors (1960) declared unenforceable a waiver buried deep in the fine print of the contract for purchase of a new car - blocking any lawsuit against the manufacturer.
In 1959 leading torts scholar William Prosser seized on the case as embracing the principle of strict liability for defective products.  It was a principle for which he and his former colleague Justice Traynor of the California Supreme Court had been arguing for fifteen years. 
Now, with the authority of the New Jersey Supreme Court Prosser proposed it to the influential American Law Institute which embraced it and began the product liability revolution which swept the courts of the country.  
The issue had been spurred by pediatricians and others who saw in automobile crash injuries and deaths a major public health crisis.  Daniel P. Moynihan, the late Senator then working for New York Governor Averill Harriman, had issued a an important highly publicized report titled Epidemic on the Highways.  It drew attention to the 5,000,000 automobile crash injuries per year, an era when the Big Three's horsepower race was full on and the Beachboys song 409 celebrated Chevrolet's 409 horsepower engine. Moynihan argued that exhortations to drive carefully were ineffective and that automobiles themselves must change, even though in Detroit safety was "a dirty word".
Bernard Chazen's proudest achievement as a lawyer was the spur his work gave to the movement for product safety.  The obituary posted by his family is below- GWC

BERNARD CHAZEN
 Englewood, NJ  Bernard Chazen - Englewood, NJ – age 96 on April 11, 2020 
Born to Nathan and Esther Chazen in New York, New York.
Beloved husband of Bernice Chazen for 56 years who predeceased him in 2010. A wonderful father to David, Jonathan (his wife Cynthia) and Sarah (her husband Martin). He raised his family in Englewood and served on the Englewood Board of   Education (1965-1969, President 1968-1969). General Counsel to the Englewood Redevelopment  Agency (1970-1973).
A loving grandfather to grandsons Sam, Max, Ben, Daniel and Jacob. A first  generation American citizen. Worked in his parent’s millinery shop as a child.
As a member of  America’s greatest generation he enlisted in the Navy during World War II and served as a lieutenant  aboard an LST in the Pacific Theater. Upon his return he attended Middlebury College, Columbia  University (JD) and Rutgers University (LLM) thanks to the GI Bill. He continued to serve in the Navy  reserves as a JAG officer and retired with the rank of Captain.
In 1949 he began to practice law in New  Jersey. His contributions to American jurisprudence in the field of product liability improved the lives of  all Americans. He believed that manufacturers have a responsibility to make their products safe for use.  There was a time that manufacturers of a defective products were not legally responsible to the  consumer because the consumer did not purchase the product directly from the manufacturer and  lacked privity of contract. He searched for the right case to take up on appeal and change the law. He  found it and argued the landmark 1960 case, Henningsen v. Bloomfield Motors, and pioneered modern  product liability law into what became the law of the land.
Manufacturers are now incentivized to make  safe products and avoid liability for defective products that injure consumers. He argued cases before  the US Supreme Court.

He was an Associate Editor of the New Jersey Law Journal from 1967 until his  retirement in 2008 and a prolific writer of editorials. He often lectured to other lawyers on a variety of  legal topics for continuing legal education programs run by ICLE and Inns of Court. He was appointed to  numerous committees by the New Jersey Supreme Court. He was appointed to numerous commissions  by the Governor and served on the New Jersey Law Revision Commission. He was a Certified Civil Trial  Attorney. He was considered a “lawyer’s lawyer”.

`Release them' - hundreds of cars circle ICE detention center in Arizona.

RIGHT NOW! Hundreds of cars circling La Palma Correctional Center in AZ demanding ICE #FreeThemAll.

There have already been 3 confirmed cases of #COVID19 here. It’s now a matter of life or death.

We may be quarantined, but we will not be silent. #AZLiberenatodxs pic.twitter.com/LTEPOzQDXx

— Maxie Adler (@maxie_adler) April 11, 2020

The Biggest Problem with the Supreme Court’s Opinion in the Wisconsin Voting Case Was Not the Result (Which Was Still Wrong), But the Court’s Sloppiness and Nonchalance About Voting Rights and What That Means for November | Election Law Blog

The Biggest Problem with the Supreme Court’s Opinion in the Wisconsin Voting Case Was Not the Result (Which Was Still Wrong), But the Court’s Sloppiness and Nonchalance About Voting Rights and What That Means for November | Election Law Blog: 

by Rick Hasen (UCLA)

There has been a ton of commentary on the Supreme Court’s split decision in the Wisconsin voting case, which reversed a district court order allowing absentee ballots received by April 13 whether or not they were postmarked by the April 7 election date to count toward the election, and I hesitate to add to it. But I think there’s something really important to be said not about what the Court decided but about how it decided it. The district court issued its order because, thanks to the coronavirus pandemic, well over 1 million Wisconsin voters had requested absentee ballots (more than 4 times the usual number of requests). 

This led to a backlog of requests and problems with postal service handling of ballots, meaning many voters (we are still trying to figure out how many, but in the thousands) did not received their ballots by April 7 in order to vote them and get them postmarked in time. It is very easy to criticize the Court’s 5-4 decision (with all the Republican-appointed Justices siding with Republicans to not allow the late-arriving ballots to count, and all the Democratic-appointed Justices dissenting and siding with Democrats) as the product of simple partisan infighting. 

At best, the decision could charitably be explained, as Rick Pildes told NYT’s Adam Liptak, as reflecting the Justices’ ideological rather than partisan commitments: ““I’d say ‘liberal’ judges are more comfortable with federal courts crafting what they see as pragmatic, ad hoc responses to extraordinary election circumstances,” he said, “while ‘conservative’ judges believe that federal courts should retain as much of the pre-existing rule structure — such as that absentee ballots must be postmarked on or before Election Day — as possible.” 

 I think the Court reached the wrong decision, but the matter is closer than some people say. While the district court didn’t frame it this way, it essentially extended the absentee voting period for a few additional days, allowing anyone who received a ballot to vote after the April 7 election day so long as the ballot was received before April 13. 

 There is much to be said for courts sticking to the rules as written before the election, because later decisions by courts can help (and be seen as helping) one side or another; and clear election rules should be followed barring extraordinary circumstances. The main Court error in its decision, in my view, was that the Court failed to recognize the truly extraordinary circumstances of the pandemic’s effect on the public health, and the failure of political actors in Wisconsin (primarily the Republican legislature, but also the Democratic governor who inexplicably dragged his feet until at the very last minute seeking to postpone the election) to act. 

This put many voters who did not receive absentee ballots in the horrible position of having to choose serious health risks or become disenfranchised. (Already Wisconsin health investigators are looking at whether people may have contracted the virus while voting.) Application of the Purcell Principle should be suspended when an emergency not of the parties’ own making causes a court to issue a last minute election order. But the Court’s decision is far from the worst of what the Court did; much of the disenfranchisement in Wisconsin is at the foot of Wisconsin political actors (and the Wisconsin Supreme Court, which also along party lines split over the Governor’s last minute attempt to try to delay the election). Far worse than its decision was its opinion.

KEEP READING

Restitution & Unjust Enrichment

Class 11 4/14

RESTITUTION AND UNJUST ENRICHMENT

SLIDES - Ch. 5 - part 1
SLIDES - Ch. 5 - PART 2 Special Restitutionary Remedies

3rd Restatement - section 1

§ 1 Restitution and Unjust Enrichment                  

A person who is unjustly enriched at the expense of another is subject to liability in restitution.

 Ch. 5 Restitution

Executive summary: Injunctions and Declaratory Judgments - pp. 453-458

pages 459-488, Hypos 5.19, 5.20, 5.21

General principles, defenses, measuring the enrichment,

Ch. 5 Restitution - special restitutionary remedies

pages 490 - 499  (499-547 reading only)

Constructive trusts, equitable liens, priority over other creditors, circumventing debtor exemptions, subrogation

Background: 3rd Restatement Restitution and Unjust Enrichment Section 1

OTHERWISE: RACE IN AMERICA: WHAT HAS CHANGED HALF A CENTURY SINCE MLK?HLPR Volume 14.1

OTHERWISE: RACE IN AMERICA: WHAT HAS CHANGED HALF A CENTURY SINCE MLK?HLPR Volume 14.1: HLPR Volume 14.1 : Harvard Law & Policy Review, Volume 14.1: Race in America: What Has Changed Half a Century Since MLK? FOREWORD by Congressman elijah Cummings...

OTHERWISE: How the Republican Party Took Over the Supreme Court | The New Republic

OTHERWISE: How the Republican Party Took Over the Supreme Court | The New Republic: How the Republican Party Took Over the Supreme Court | The New Republic :  Book Review By JOHN FABIAN WITT April 7, 2020  For 230 years ...

Milliken v. Bradley - the suburban wall - SCOTUS 1974

The Detroit Desegregation Case
*Milliken v. Bradley, 418 U.S. 717 (1974)
Milliken - bullet point highlights
Discussion Questions
SLIDES

Background for Detroit
Equitable funding - Rodriguez v. San Antonio

discussion slides
discussion slides Kansas City and Detroit - 2016
 Milliken 1977 - post remand
Aretha Franklin - Respect
Coleman Young
Motown the musical
Detroit 1967 - NBC News 4 minutes video
GM, Detroit, and the Decline of the Black Middle Class - NY Times 
Dead End Street - Lou Rawls
NBC News Detroit 1967 52 minutes
Busing - Supreme Court Restricts Equity Powers of District Courts Elizabeth Warren - Rutgers Law Review 1975 

Busing - Swann v. Charlotte Mecklenberg - SCOTUS 1971

Metropolitan area remedial busing and other uses and limits of the remedial power.

Lecture - Busing - Swann v. Charlotte Mecklenberg

SLIDES -

Ralph Lee Smith, The South's Pupil Placement Laws, The Crisis (1959)
Video: The Battle for Busing - Retro Report  (10 minutes)
NY Times - related article: text