Thursday, February 26, 2015

In Memory of Daniel — Reviving Research to Prevent Gun Violence — NEJM

In Memory of Daniel — Reviving Research to Prevent Gun Violence — NEJM

by Chana A. Sacks, M.D.  (Massachusetts General Hospital)

At the moment that Daniel was shot, I had just fallen asleep after a night on call in the cardiac intensive care unit. My attending during that rotation was Robert Gerszten, who offered us insights from the burgeoning field of metabolomics and cardiovascular disease: that alterations in levels of blood metabolites may precede chronic illnesses by decades — knowledge that might someday enable us to identify people at risk for diseases years before the first clinical manifestation. Contemplating the possibilities of this concept, caring for critically sick patents, and studying the vast cardiology literature, I found my mind filled with a complex amalgam of thoughts that often made post-call sleep restless.
Meanwhile, 150 miles away, the day had started like any Friday. My cousin Mark walked his oldest son to the bus stop at the end of the driveway. James always left for school first, and on that December day, it was still dark. At the sound of flip-flops on asphalt, Mark and James turned to see 7-year-old Daniel bounding toward them in his pajamas; he had woken up early and sprinted outside to see his older brother off to school. Then Daniel and Mark snuggled on the couch, played foosball in the basement and then “Jingle Bells” on the piano. At 8:30, it was Daniel's turn to trek down the driveway. Mark remembers holding Daniel's little hand for the whole walk to the yellow school bus that took his youngest son to Sandy Hook Elementary School.
The next week is a blur...

Wednesday, February 25, 2015

The Great Society Speech = Lyndon Johnson - 1964

President Johnson signing the Civil Rights Act
by Matthew Dallek // George Washington University

The Speech That Launched the Great Society

The Speech at University of Michigan, May 22, 1964

President Lyndon B. Johnson declared that the government, working with a citizenry motivated to improve community life, had to make cities more livable, protect the natural environment, and provide education that gave all citizens regardless of race or class the chance to rise in society and find meaning in life.
The speech was a spiritual invocation as much as a political statement to fulfill Jefferson’s promise in the Declaration of Independence to give all the right to “pursuit of happiness.”
“The Great Society,” Johnson declared, “…demands an end to poverty and racial injustice,” but it also had to be “a place where every child can find knowledge to enrich his mind and enlarge his talent…where the city of man serves not only the needs of the body and the demands of commerce but the desire for beauty and the hunger for community.”

The Great Society, he added, meant making the nation’s cities places where “future generations can come together, not only to live, but to live the good life.” It was a place where “America the beautiful” and “our natural splendor” were protected from the pollution that threatened to destroy “the water we drink, the food we eat, the very air we breath.”

While Johnson’s 1964 speech dwelled on the problems of the cities, the environment, and education, the constellation of programs that came to be known as the Great Society addressed a much wider agenda. They included not only Medicare, Medicaid and civil rights legislation but also the creation of a department of Housing and Urban Development and the National Endowment for the Arts and the Humanities, to name just a few.
“The liberal assumption that rising wealth more widely distributed would liberate Americans for the ‘pursuit of happiness’ had proven…inadequate,” [principal drafter Richard]  Goodwin wrote of the genesis of the speech. The address, he argued, represented “the only possible direction for liberating, progressive change”.

Tuesday, February 24, 2015

House Bill Seeks to Amend Illinois' Premises Liability Act | The National Law Review

House Bill Seeks to Amend Illinois' Premises Liability Act | The National Law Review: "llinois Representative Jack D. Franks (D - McHenry County) has introduced a Bill (HB 1441) that would amend the Illinois Premises Liability Act to eliminate a court's ability to decide that a landowner does not owe a duty to protect those coming on his/her premises against conditions that are open and obvious.

The Illinois Premises Liability Act states (in part) that "The duty owed to such entrants is that of reasonable care under the circumstances regarding the state of the premises or acts done or omitted on them." A longstanding exception to this duty under Illinois common law (and in other jurisdictions nationwide) is that "a party who owns or controls land is not required to foresee and protect against an injury if the potentially dangerous condition is open and obvious." Rexroad v. City of Springfield, 207 Ill. 2nd 33, 44 (2003). This is known as the "open and obvious rule."

It is also well-established case law that the question of whether or not a duty exists is a question of law for the court to decide. Forsythe v. Clark USA, Inc., 224 Ill. 2nd 404, 411 (1991).

There are exceptions to the "open and obvious rule," however, Representative Franks' Bill seeks to limit the application of the rule by excluding it as something a court can consider it determining whether or not a landowner owes an entrant a duty by adding the following language to the Premises Liability Act:

"Whether a condition is open and obvious may be considered by the trier of fact only in assessing the degree of comparative fault, if any, under Section 2-116 if the Code if Civil Procedure and shall not be considered with respect to any other issues of law or fact, including duty." (Emphasis added).

The proposed amendment would expose landowners to additional liability for open and obvious conditions, and make cases with these circumstances more difficult to defend"

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Shire, Maker of Binge-Eating Drug Vyvanse, First Marketed the Disease -

Monica Seles, retired tennis star, now shilling for Shire
The big drug companies are market makers - first they help create a diagnosis, then they sell the cure.   Not that there is no such thing as binge eating.  A recently acquired box of Girl Scout cookies (chocolate thin mints) had a very brief half-life in my hands.  - gwc

Shire, Maker of Binge-Eating Drug Vyvanse, First Marketed the Disease -

by Katie  Thomas

 "As Shire introduces an ambitious campaign to promote Vyvanse but also to raise awareness about the disorder, some are saying the company is going too far to market a drug, a type of amphetamine, that is classified by the federal government as having a high potential for abuse. Shire’s track record is adding to the worry: The company helped put another once-stigmatized condition — attention deficit hyperactivity disorder — on the medical map and made billions of dollars from the sale of drugs, like Vyvanse and Adderall, to treat it. In recent years, federal officials have cited the company for inappropriately marketing Vyvanse and other A.D.H.D. drugs."

The retired tennis player Monica Seles spent this month making the rounds of television talk shows, appearing on everything from “Good Morning America” to “The Dr. Oz Show” to share her personal struggle with binge eating.

“It took a while until I felt comfortable talking about it,” she said in a People magazine interview, explaining that she secretly devoured food for years while she was a professional athlete. “That’s one of the reasons I decided to do this campaign: to raise awareness that binge eating is a real medical condition.”

But that is not the only reason. Ms. Seles is a paid spokeswoman for Shire, which late last month won approval to market its top-selling drug, Vyvanse, to treat binge-eating disorder, a condition that once existed in the shadow of better-known disorders like anorexia and bulimia but was officially recognized as its own disorder in 2013 by the American Psychiatric Association.

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Monday, February 23, 2015

J&J to Pay as Much as $420 Million More in ASR Hip Accord - Bloomberg Business

J&J to Pay as Much as $420 Million More in ASR Hip Accord - Bloomberg Business:

by Jef Feeley

(Bloomberg) -- Johnson & Johnson agreed to pay as much as $420 million more to resolve lawsuits over recalled hip implants that were excluded in 2013 from a $2.5 billion settlement of claims that the devices were defective and caused metal poisoning in patients.
J&J’s DePuy unit agreed to push back the deadline for recipients of the company’s ASR implants to file settlement claims to Jan. 31 of this year, according to a filing Friday in federal court in Toledo, Ohio. That will allow as many as 1,400 patients who’ve had ASR hips removed since 2013 to seek about $300,000 each in compensation under the original 2013 accord.
“By extending the benefits of the previously announced U.S. Settlement Program to an additional group of ASR patients, we are again providing fair compensation” to artificial hip recipients “without the delay and uncertainty of protracted litigation,” Mindy Tinsley, a DePuy spokeswoman, said in an e-mail Friday.
“J&J has seen the handwriting on the wall about these hip cases and they’ve figured it out: It’s better to settle all of these suits and get this debacle behind them,” said Erik Gordon, a professor at the University of Michigan’s business and law schools who teaches about class-action settlements.

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Jury Awards $218.5 Million Against PLO and Palestiinan Authority

A Manhattan jury has awarded $218.5 million damages to the families of civilians killed and injured by attacks by Palestinians inside Israel, the New York Times reports.  The action was brought under the Anti-Terrorism act which creates a cause of action even for acts occurring outside the United States. The act provides for treble damages plus costs of suit to be awarded to victims who suffer "by reason of an act of international terrorism".  The causal language is so broad that the Palestinian Authority and PLO were held responsible for acts which they politically opposed. The Times reports that
The defense had argued that their clients had nothing to do with the attacks. Mark J. Rochon, a defense lawyer, told the jury on Thursday that he did not want “the bad guys, the killers, the people who did this, to get away while the Palestinian Authority or the P.L.O. pay for something they did not do.”
Hanan Ashrawi, a member of the P.L.O.’s executive committee who testified for the defense, told the jury, “We tried to prevent violence from all sides.”
But citing testimony, payroll records and other documents, the plaintiffs showed that many of those involved in the planning and carrying out of the attacks had been employees of the Palestinian Authority, and that the authority had paid salaries to terrorists imprisoned in Israel and made martyr payments to the families of suicide bombers.
Such a verdict presents a policy dilemma for the U.S. and European countries which fund and support the moderate leaders of the Palestinian Authority.  The Palestinian Authority is formally a governmental partner of Hamas and the PLO includes groups who have relied on attacks on civilian though the leadership of the Authority and the Organization generally opposes such measures and is barely on speaking terms with Hamas which governs Gaza. - gwc

Friday, February 20, 2015

#BlackLivesMatter — A Challenge to the Medical and Public Health Communities — NEJM

#BlackLivesMatter — A Challenge to the Medical and Public Health Communities — NEJM

by Mary T. Bassett, M.D., M.P.H.

Commissoner, New York City Department of Health and Mental Hygiene

As New York City's health commissioner, I feel a strong moral and professional obligation to encourage critical dialogue and action on issues of racism and health. Ongoing exclusion of and discrimination against people of African descent throughout their life course, along with the legacy of bad past policies, continue to shape patterns of disease distribution and mortality.1 

There is great injustice in the daily violence experienced by young black men. But the tragedy of lives cut short is not accounted for entirely, or even mostly, by violence. In New York City, the rate of premature death is 50% higher among black men than among white men, according to my department's vital statistics data, and this gap reflects dramatic disparities in many health outcomes, including cardiovascular disease, cancer, and HIV. 

These common medical conditions take lives slowly and quietly — but just as unfairly. True, the black–white gap in life expectancy has been decreasing,2 and the gap is smaller among women than among men. But black women in New York City are still more than 10 times as likely as white women to die in childbirth, according to our 2012 data.

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Judge rejects BP challenge to penalty regulations

Judge Carl Barbier Orders BP May Face Clean Water Act Maximum Penalty of $4,300 per Gallon

Rejecting a BP challenge to the rule-making authority of the Environmental Protection Agency District Judge Carl Barbier yesterday ruled the BP may be penalized $4,300/gallon for the 2010 Gulf of Mexico oil spill.  In the matter of Deepwater Horizon [Case 2:10-md-02179-CJB-SS ED LA.] "the Court finds that the EPA’s regulation, 40 C.F.R. § 19.4 (2010),
adjusting the civil penalty in 33 U.S.C. § 1321(b)(7)(D) is valid and that the maximum CWA civil
penalty that may be imposed against BPXP is $4,300 per barrel of oil discharged.

"For similar
reasons, the Court finds that the highest maximum civil penalty that may be imposed against
Anadarko Petroleum Corporation under 33 U.S.C. § 1321(b)(7)(A) is $1,100 per barrel.4
In light
of these conclusions and the fact that the parties agree that the Coast Guard incorrectly adjusted the
CWA civil penalty, the Court does not address whether the penalties in subsection (b)(7) were also
within the Coast Guard’s jurisdiction for purposes of the Inflation Adjustment Act."

The judge has not yet ruled how much BP will be penalized.  The company has argued that its clean-up efforts, responsiveness, and falling oil prices should mitigate the penalties to be assessed. - gwc

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In Regulating E-Cigarettes, No Easy Fix For The FDA – Health Affairs Blog

Image result for e-cigarettes

In Regulating E-Cigarettes, No Easy Fix For The FDA – Health Affairs Blog:

by Prof. Wendy Parmet //Northeastern University School of Law

Sometime in the next few months, the Food and Drug Administration (FDA) is expected to issue the so-called deeming regulations, which will open the door to the federal regulation of e-cigarettes. In considering whether to issue the regulations, which were first published for notice and comment rulemaking last April, the FDA faces a formidable challenge: it must decide whether and how to regulate in the midst of scientific uncertainty and limited statutory flexibility.
By subjecting e-cigarettes to its regulatory regime, the FDA risks retarding the growth of what may prove to be a powerful new tool for harm reduction. But by failing to act, the agency risks undermining decades of progress in tobacco control. In either case, the public health impact is apt to be significant.
It is a victory that was made possible, in large measure, by a constellation of state and federal regulatory interventions: laws regulating the marketing and sale of cigarettes, barring sales to youth, banning indoor smoking, and taxing cigarette sales have all played a role in reducing rates of smoking.
Nevertheless, smoking remains stubbornly common, especially among teens. According to the Centers for Disease Control, in 2012 an estimated 18.1 percent of the U.S. adults were smokers as were 14 percent of high school students. Each year over 480,000 Americans die of smoking-related diseases.
It is in this environment that the market for e-cigarettes has developed since they were first introduced in the U.S. less than ten years ago. By 2013, over 47 percent of smokers had tried e-cigarettes; and 4 percent were regular users. In 2013 more than 250,000 minors who had never smoked had used an e-cigarette.
Although they take many forms, e-cigarettes, also known as electronic nicotine delivery systems (ENDS), or more colloquially as vapes, use battery power to heat and vaporize liquid nicotine that users inhale. In contrast to traditional cigarettes, pipes, and cigars, there is no combustion.
Supporters contend that e-cigarettes can serve as a form of harm reduction, akin to the needle exchange programs that have been used to stop the spread of HIV by intravenous drug use. Less dangerous than cigarettes, e-cigarettes deliver nicotine without exposing users and bystanders to the byproducts of combustion. Therefore they may allow users to get their nicotine “fix” and the sensory pleasures of smoking without being exposed to, or exposing others to, cigarette smoke.
Critics, in contrast, argue that e-cigarettes are not as harmless as they seem. For a start, they expose users to nicotine, a highly addictive drug, which has been associated with numerous health effects. Moreover, studies have shown that the vapor produced by e-cigarettes sometimes contain heavy metals and other toxins.
For example a recent letter to the editor of the New England Journal of Medicine reported on research finding that high voltage vaping may expose users to more than 4 times the amount of formaldehyde presented by traditional cigarettes. And because there are over 400 brands on the market, and most of them are imported, the risk of adulteration is high, as a recent New York Times article pointed out.
Critics also worry that the growth of vaping will lead to more smoking. In particular, they point to the common practice of adding sweet flavors to e-cigarettes and argue that this attracts young people, who may become addicted to nicotine and then “graduate” to conventional cigarettes. There is also concern that the advertising and use of e-cigarettes in public places will renormalize smoking, thereby reversing the change in social norms that has helped support reductions in rates of cigarette usage.

Regulatory Challenges

The challenge for regulators is that the science is not yet settled. In its notice of proposed rulemaking,the FDA admitted that it did “not currently have sufficient data about these products to determine what effects e-cigarettes have on the public health.”
Although the weight of the evidence establishes that e-cigarettes are less harmful than cigarettes, it is simply too early to know the long-term dangers for users or bystanders. Moreover, we don’t know if the proliferation of e-cigarettes will increase or reduce overall rates of smoking. In other words, we just don’t know whether e-cigarettes will prove to be an effective form of harm reduction or a gateway drug.
Adding to the regulatory challenge are the limitations imposed by the federal statutory scheme. In 2010 a federal appeals court ruled that the FDA could not act against adulterated e-cigarettes under the Food, Drug and Cosmetic Act; rather its authority was limited to that provided by the 2009 Tobacco Control Act(“TCA”). That Act imposes regulations on specified tobacco products, such as cigarettes and smokeless tobacco, and all other tobacco products that the FDA “deems” to be subject to the Act. It is this provision that the FDA will invoke if it promulgates the deeming regulations.
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Monday, February 16, 2015

NCAA files opposition to attorneys fee motion in O'Bannon anti-trust case

Plaintiffs counsel Michael Hausfeld
The NCAA has filed its opposition to the class plaintiffs lawyers motion for $50 million in counsel fees in O'Bannon v. NCAA.  The NCAA argues that plaintiffs should recover only $9 million in counsel fees and proposes steep reductions in cost recovery.  
In August 2014 U.S. District Judge Claudia Wilkens ruled that the NCAA violated antitrust law by preventing student-athletes from being compensated for their name, image and likeness rights.
Wilkens' ruling allows schools to pay athletes licensing money into a trust fund starting in 2016. Financial damages were not part of the trial, but Wilkens said the plaintiffs "shall recover their costs from the NCAA."
The NCAA argues that plaintiffs lawyers application is flawed in that it they may not recover fees for work done on the case prior to September 1, 2012 when their theory of the case changed; they  may not recover fees for work done solely to advance claims upon which they did not prevail in substantial part, or for claims that were essentially abandoned; nor may they recover for "work that was unnecessary, redundant and inefficient, unsupported by plaintiffs’ billing records, or that did not reflect sound billing judgment".  Finally the NCAA argues that much of plaintiffs's claims of costs are "unsupported by their submission or the law".

Sunday, February 15, 2015

David Carr - Syllabus - Press Play — Press Play — Medium

David Carr, writer (1957-2015)
Press Play — Press Play — Medium

Press Play

Making and distributing content in the present future we are living through.

David Carr


Boston University School of Journalism

Fall 2014


The good news is that this is the first time that I have taught this class, so boredom will not be an issue. It’s also the bad news, because even though I have done a great deal of teaching over the years, it’s the first time I’ve been an actual professor and have had to string together an entire semester. You are a beta, which means things will be exciting and sometimes very confusing. Let’s be honest with each other when that happens. If you don’t get where I am going or what I want, say so. I care deeply that I do a good job in all endeavors, especially this one. I expect you to work hard and want to respond in kind.
And just so you know, to speak to Mikaela is to speak to me. I lean hard on her and trust her judgment. Just saying.
Not need to know, but nice to know: Your professor is a terrible singer and a decent dancer. He is a movie crier but stone-faced in real life. He never laughs even when he is actually amused. He hates suck-ups, people who treat waitresses and cab drivers poorly, and anybody who thinks diversity is just an academic conceit. He is a big sucker for the hard worker and is rarely dazzled by brilliance. He has little patience for people who pretend to ask questions when all they really want to do is make a speech.
He has a lot of ideas about a lot of things, some of which are good. We will figure out which is which together. He likes being challenged. He is an idiosyncratic speaker, often beginning in the middle of a story, and is used to being told that people have no idea what he is talking about. It’s fine to be one of those people. In Press Play, he will strive to be a lucid, linear communicator.
Your professor is fair, fundamentally friendly, a little odd, but not very mysterious. If you want to know where you stand, just ask.

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Friday, February 13, 2015

Oklahoma Jury Returns $2.5 Million Verdict in DePuy ASR Hip Case

HarrisMartin - Article - Oklahoma Jury Returns $2.5 Million Verdict in DePuy ASR Hip Case

February 12, 2015

TULSA, Okla. — Jurors have awarded $2.5 million to an Oklahoma woman who had DePuy ASR XL Acetabular systems removed from both hips less than five years after they were implanted.

The Tulsa County District Court jury returned the verdict Feb. 3, determining that a design defect in the ASR XL artificial hip was to blame for the plaintiff’s injuries, which included three revision surgeries, metallosis and significant injuries to the tissue surrounding the allegedly defective implants.

Jurors, however, rejected plaintiff Andrea Smith’s claims that DePuy was negligent or failed to adequately warn her of dangers associated with the ASR ...

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FBI Director — Hard Truths: Law Enforcement and Race

Father Joseph McShane, S.J., President  of Fordham University called on us yesterday to commit to a week of reflection on race relations.  If we take FBI Director James B. Comey's speech as a keynote we will do well. Comey - an Irish Catholic speaks of Michael Patrick Healy, S.J.  The son of a planter and a slave he was legally a slave but raised by his father who sent him and his brothers north to the College of the Holy Cross where he was the first African-American graduate.  He joined the Society of Jesus and was the 29th  President of Georgetown University.   - gwc

FBI — Hard Truths: Law Enforcement and Race

FBI Director James B. Comey
February 12, 2015
at Georgetown University

Let me start by sharing some of my own hard truths:

First, all of us in law enforcement must be honest enough to acknowledge that much of our history is not pretty. At many points in American history, law enforcement enforced the status quo, a status quo that was often brutally unfair to disfavored groups. It was unfair to the Healy siblings and to countless others like them. It was unfair to too many people.

I am descended from Irish immigrants. A century ago, the Irish knew well how American society—and law enforcement—viewed them: as drunks, ruffians, and criminals. Law enforcement’s biased view of the Irish lives on in the nickname we still use for the vehicles we use to transport groups of prisoners. It is, after all, the “paddy wagon.”

The Irish had tough times, but little compares to the experience on our soil of black Americans. That experience should be part of every American’s consciousness, and law enforcement’s role in that experience—including in recent times—must be remembered. It is our cultural inheritance.

There is a reason that I require all new agents and analysts to study the FBI’s interaction with Dr. Martin Luther King, Jr., and to visit his memorial in Washington as part of their training. And there is a reason I keep on my desk a copy of Attorney General Robert Kennedy’s approval of J. Edgar Hoover’s request to wiretap Dr. King. It is a single page. The entire application is five sentences long, it is without fact or substance, and is predicated on the naked assertion that there is “communist influence in the racial situation.” The reason I do those things is to ensure that we remember our mistakes and that we learn from them.

One reason we cannot forget our law enforcement legacy is that the people we serve and protect cannot forget it, either. So we must talk about our history. It is a hard truth that lives on.

A second hard truth: Much research points to the widespread existence of unconscious bias. Many people in our white-majority culture have unconscious racial biases and react differently to a white face than a black face. In fact, we all, white and black, carry various biases around with us. I am reminded of the song from the Broadway hit, Avenue Q: “Everyone’s a Little Bit Racist.” Part of it goes like this:

Look around and you will find
No one’s really color blind.
Maybe it’s a fact
We all should face
Everyone makes judgments
Based on race.

You should be grateful I did not try to sing that.
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More than half of $500 million in oil spill payments distributed to seafood workers |

More than half of $500 million in oil spill payments distributed to seafood workers |

by Jennifer Larino  // Times Picayune

"Oil spill claims administrator Patrick Juneau said Thursday (Feb. 12) more than half of a second, $500 million round of payments has been distributed to Gulf Coast seafood workers since a November court order approving the step. The claims office continues to process payments to seafood workers impacted by the BP oil spill.

 In a statement, Juneau said his office has paid more than $296 million to 2,647 claimants in the seafood industry over the past three months.

The program will process payments from the remaining $204 million over the next four to six months, Juneau said.

"We are moving the payments through the process and I am pleased at the progress we are making for the seafood industry," Juneau said.

 This round of payments is the second distribution under the $2.3 billion Seafood Compensation Program, which set aside money within the larger 2012 oil spill settlement to pay commercial fishermen, vessel owners, and other seafood workers impacted by the spill.

The program paid more than $1 billion to workers during its first phase. BP and plaintiff's lawyers agreed to divide remaining funds among qualified claimants in later rounds."

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Thursday, February 12, 2015

U.S. Judge Orders Alabama Judge to Issue Marriage Licenses- NY Times

U.S. Orders Alabama To License Gay Unions -
by Campbell Robertson

MOBILE, Ala. — A federal judge here ruled on Thursday that the local probate judge cannot refuse to issue marriage licenses to same-sex couples, potentially adding some clarity to a judicial quarrel that has roiled Alabama for most of a week.

The order by Judge Callie V. S. Granade of Federal District Court came after a brief hearing and prompted cheers and crying in the halls of the probate court here, where several couples obtained licenses and were married before the license office closed.
In a relatively straightforward order, Judge Granade restated her finding that the state’s ban on same-sex marriage was unconstitutional and concluded that if the couples before her “take all steps that are required in the normal course of business as a prerequisite to issuing a marriage license to opposite-sex couples, Judge Davis may not deny them a license on the ground that plaintiffs constitute same-sex couples.”

Judge Davis almost immediately began issuing licenses to same-sex couples, but it was unclear whether other probate judges would follow suit. As of noon on Thursday, judges in 23 Alabama counties were issuing licenses to all couples, in 18 counties to straight couples only and in 26 to no couples at all, according to a tally kept by the Human Rights Campaign, a gay rights group

What Caused the Crime Decline? - New Brennan Center report

This press release highlights the publication of this important new report by the Brennan Center for Justice titled "What Caused the Crime Decline?".  This report looks like a must-read for all advocates (and opponents) of modern sentencing reform, and here are excerpts of the summary appearing in the press release:

 Since 1990, increased incarceration had a limited impact on reducing crime nationwide, concludes a new report from the Brennan Center for Justice at NYU School of Law.  In What Caused the Crime Decline?, a team of economic and criminal justice researchers examine over 40 years of data, gathered from 50 states and the 50 largest cities. Among the report’s new findings:

Incarceration: Increased incarceration had some effect, likely in the range of 0 to 10 percent, on reducing crime in the 1990s. Since 2000, however, increased incarceration had a negligible effect on crime.
State Success: A number of states, including California, Michigan, New Jersey, New York, and Texas, have successfully reduced their prison populations while crime continues to fall.

Other Factors: Increased numbers of police officers, some data-driven policing techniques, changes in income, decreased alcohol consumption, and an aging population played a role in the crime decline. In particular, the report finds CompStat is associated with a 5 to 15 percent decrease in crime. The report also includes new information on the effects of unemployment, the death penalty, and other theories on crime.
During the 25 years since 1990, incarceration rates have exploded — almost doubling in size — and added about 1.1 million additional people behind bars.  During that same time, crime rates have been cut almost in half. Using an economic model that accounts for the diminishing returns of extremely high levels of incarceration and includes the latest 13 years of data, the report bolsters past research suggesting increased incarceration had little impact on crime rates, but finds an even smaller impact on crime.
“Some have argued that despite the immense social and economic costs of America’s mass incarceration system, it has succeeded at reducing crime,” said report co-author Dr. Oliver Roeder.  “The data tells a different story: if reducing crime is the end goal of our criminal justice system, increased incarceration is a poor investment.”
“This report amplifies what many on the left and the right have come to realize in recent years: mass incarceration is not working. It simply isn’t necessary to reduce crime,” said Inimai Chettiar, director of the Brennan Center’s Justice Program and author of the executive summary.  “The prison explosion has been very expensive.  A better use of public resources would be improving economic opportunities, supporting 21st century policing practices, and expanding treatment and rehabilitation programs, all of which have proven records of reducing crime without incarceration’s high costs.”
“This groundbreaking empirical analysis from the Brennan Center shows that, on examination, the easy answers do not explain incarceration’s effect on crime,” wrote Dr. Joseph E. Stiglitz, a Nobel laureate in economics and University Professor at Columbia University, in the foreword.  “This report presents a rigorous and sophisticated empirical analysis performed on the most recent, comprehensive dataset to date.”"
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Alabama Supreme Court Dismisses Probate Judge's Request for Instructions

Probate Judge Don Davis was faced with contradictory orders of the federal district court and the State's crusading Chief Justice Roy Moore.  Davis's refusal to permit a spousal adoption led to the Searcy v. Strange case which held unconstitutional Alabama's "Sanctity of Marriage" law and constitutional amendment.  He closed his office.  Then he sought instructions from the state Supreme Court.  Yesterday the Court dismissed the petition as a a request for an unauthorized "advisory opinion".  Odd since the court is vested with "general supervision" authority by the Alabama Constitution.

Justice Bolin,concurring, laments the "three ring circus" but blames everyone except Clarence Thomas and Antonin Scalia who, he believes, correctly said the Supreme Court should have stayed the order of District Judge Granade which precipitated the crisis.It will now be up to her to decide whether to order that marriage licenses be issued.  - gwc

Wednesday, February 11, 2015

The myths and realities of the Southern Strategy | GOPLifer

The myths and realities of the Southern Strategy | GOPLifer

by Chris Ladd

There’s hubris in characterizing Republicans as having “courted” Southern voters into a new alliance. In reality, late 20th century Republicans hoping to shape an appeal in the South were foolishly trying to ride an avalanche. What’s left of the Republican Party as it once existed is buried somewhere beneath tons of noxious debris as the active racism of Jim Crow’s defenders has become the quiet racism of the culture wars.
Our myths of the Southern Strategy are dangerous for the way they obscure the Republican Party’s central problem – its new, unintended role as the vehicle of white supremacy in the 21st century. History denied is history repeated. Republicans will not shake this burden without first confronting it.

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Tuesday, February 10, 2015

Federal Judge Sets Hearing in Alabama On Same-Sex Marriage -

Federal Judge Sets Hearing in Alabama On Same-Sex Marriage -

MOBILE, Ala. — A day after a federal ruling legalizing same-sex marriage took effect in Alabama, a federal judge set a hearing that could determine whether resistant local probate judges must grant licenses to gay couples. At the same time, some officials who had refused to issue the licenses, in compliance with a state judicial ruling, reversed course.

 The probate judges are caught between conflicting signals from the state and federal judiciaries. State law does not require these judges to be lawyers, yet they are being called on to consider weighty constitutional matters involving the interplay of federal and state authority. Generally they deal with matters like adoptions, guardianships and name changes."

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Curb False Guilty Pleas | Editorial Board - New Jersey Law Journal

Curb False Guilty Pleas | New Jersey Law Journal

by the Editorial Board  December 5, 2014

Writing in the Nov. 22 issue of the New York Review of Books, U.S. District Judge Jed S. Rakoff of the Southern District of New York addressed the likelihood that there are too many instances in which federal court defendants plead guilty not because they are, but because they have been presented with a plea bargain which must be agreed to promptly or potentially lost or diminished with the passage of time.

Rakoff observed that the prosecutor is at a distinct advantage, because indictments are often structured with multiple counts so as to portend enormous sentences upon conviction, the potential of which frequently serves to bring about early pleas that obviate the need for the government to prepare and go to trial. Rakoff recognizes that with the number of pending criminal cases, plea bargaining is a necessary and important facet of the criminal justice system. 
But to the extent that individuals may be prompted to enter pleas, despite legitimate and significant defenses to be offered at trial, Rakoff believes that efforts should be made to minimize the potential for false guilty pleas. The suggestion offered in the New York Review piece is that, at least on a trial basis, it might be useful for a magistrate judge to meet separately with the prosecutor and defense counsel after an indictment is returned—or even earlier—and for the meeting to be recorded but placed under seal.

As per Rakoff's suggestion, the magistrate would be informed of the evidence and the issues in the case. Evidence might be examined and witnesses interviewed under certain circumstances, all of which would be confidential and without prejudice to either side. While this process is being carried out, the prosecutor would be prevented from offering any plea bargains or making any threats.
There would then be separate meetings with both sides and, if indicated, recommendations as to the disposition of the case, including possible dismissal of the charge or suggestions as to a reasonable plea bargain. Rakoff says that he is "… under no illusions that this suggested involvement of judges in the plea-bargaining process is a panacea. But would not any program that helps to reduce the shame of sending innocent people to prison be worth trying?"
We agree and believe the experiment ought to be carried out. New Jersey would be a good place to start.

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Mapping the history of lynching NY Times

nearly 4,000 Black people were lynched
in the south from 1877 - 1950

Mapping the history of lynching NY Times

by Campbell Robertson
DALLAS — A block from the tourist-swarmed headquarters of the former Texas School Book Depository sits the old county courthouse, now a museum. In 1910, a group of men rushed into the courthouse, threw a rope around the neck of a black man accused of sexually assaulting a 3-year-old white girl, and threw the other end of the rope out a window. A mob outside yanked the man, Allen Brooks, to the ground and strung him up at a ceremonial arch a few blocks down Main Street.
South of the city, past the Trinity River bottoms, a black man named W. R. Taylor was hanged by a mob in 1889. Farther south still is the community of Streetman, where 25-year-old George Gay was hanged from a tree and shot hundreds of times in 1922.
And just beyond that is Kirvin, where three black men, two of them almost certainly innocent, were accused of killing a white woman and, under the gaze of hundreds of soda-drinking spectators, were castrated, stabbed, beaten, tied to a plow and set afire in the spring of 1922.
The killing of Mr. Brooks is noted in the museum. The sites of the other killings, like those of nearly every lynching in the United States, are not marked. Bryan Stevenson believes this should change.
On Tuesday, the organization he founded and runs, the Equal Justice Initiative in Montgomery, Ala., released a report on the history of lynchings in the United States, the result of five years of research and 160 visits to sites around the South. The authors of the report compiled an inventory of 3,959 victims of “racial terror lynchings” in 12 Southern states from 1877 to 1950.

Monday, February 9, 2015

Supreme Court Undercuts Alabama Chief Justice's Argument

by Erick Eckholm

***Whether the existing federal order is technically binding on state judges is under debate, but on Monday the federal court turned away a brief, from gay rights advocates, calling for contempt charges against a probate judge in Mobile who refused to issue marriage licenses. Instead, gay couples can simply bring new suits in federal court, seeking injunctions to force resisting judges to comply, Mr. Dorf said.

The legal lines between federal courts and state authority are tangled and, especially in the South, bear a heavy weight of history. Gov. Robert Bentley, a Republican, complained in a statement on Monday about what he called the Supreme Court’s “cavalier attitude toward the states.”

Alabama: The thirty-seventh same-sex marriage state (UPDATED) : SCOTUSblog

Alabama: The thirty-seventh same-sex marriage state (UPDATED) : SCOTUSblog:
click through to Scotus blog for links.
 "UPDATED 1:96 p.m.  Lawyers for one of the same-sex couples involved in the Alabama dispute promptly filed a motion for contempt against a probate judge in Mobile who refused to open the office for issuance of marriage licenses to same-sex couples.


With the Supreme Court again refusing to delay lower courts’ rulings in favor of same-sex marriage, Alabama on Monday morning became the thirty-seventh state where such unions are legal, and at least four couples were promptly wed at a courthouse in Montgomery.  Alabama’s situation, though, is unique because of a looming legal battle over who will or will not issue marriage licenses to same-sex couples.

Two Justices who had dissented from earlier orders allowing same-sex marriage licensing to occur — Clarence Thomas and Antonin Scalia — protested anew on Monday.  They argued that the Court was showing disrespect for states, and was sending a premature hint that it has already made up its mind on a constitutional issue it will only be taking up in April.

 The Court’s denial of a plea by state officials for postponement came some nine hours after a federal trial judge’s temporary delay of same-sex marriages had expired at midnight.  U.S. District Judge Callie Granade of Mobile had struck down the state ban, but delayed the ruling for two weeks.  The majority of the Supreme Court — at least five Justices, but no votes were noted other than those of the two dissenters — gave no explanation for declining to provide a further postponement.

After similar denials by the Court for same-sex marriages in other states, same-sex couples in large numbers were free to marry, and tens of thousands of them promptly did so.

In Alabama, however, it may take some time to sort out the legal opportunity for same-sex couples to wed.

On Sunday, the chief justice of the Alabama Supreme Court, Roy S. Moore, who also serves as the head of the state’s judiciary, sent out a legal memo to all sixty-eight county probate judges — the officials who issue marriage licenses in that state — telling them they had no authority to do so because the federal judge’s ruling striking down the state’s ban does not apply in state courts.

If any of the judges does issue a marriage license that does not obey the state’s ban, the chief justice warned, it would be up to the state’s governor to take action — although the memo did not specify what kind of action — to enforce state law. "

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Wednesday, February 4, 2015

11th Circuit Denies Alabama's Request for Stay of Same-Sex Marriage Ruling | Daily Report

The United States Court of Appeals for the 11th Circuit has refused to stay a District Judge's order striking Alabama's state constitution's ban on same sex marriage. The order takes effect tomorrow.  It has been denounced by Chief Justice Roy S. Moore, in a public letter to Governor Robert Bentley, as a usurpation of state sovereignty. "The laws of this state have always recognized the Biblical admonition stated by our Lord:

But from the beginning of the creation God made them male and
female. For this cause shall a man leave father and mother, and cleave to his wife; And they twain shall be one flesh: so then they are no more twain, but one flesh. What therefore God hath joined together, let not man put asunder. (Mark 10:6-9)."
Moore was removed from office  in 2003 because he refused to obey an order to remove a Ten Commandments monument from the courthouse grounds.  Moore's bio page explains that the federal court order denied "the sovereignty of God".  He was again elected Chief Justice in 2012.

The ABA Journal reports that Alabama's filing asked the 11th Circuit to wait until the U.S. Supreme Court reaches a decision in a pending appeal, granted cert (PDF) on Jan. 16. That appeal which focuses on whether the 14th Amendment requires states to license same-sex marriages, and if it requires states to recognize same-sex marriages licensed out-of-state.

On Jan. 24, U.S. District Judge Ginny Granade found (PDF) that the Alabama Marriage Protection Act was unconstitutional. The case was filed on behalf of Cari Searcy and Kimberly McKeand, a same-sex couple who legally married in California. They now reside in Alabama, and want Searcy to adopt McKeand’s biological son, who is 8.

The Alabama attorney general’s office has said it will appeal the stay denial to the U.S. Supreme Court, the Alabama Media Group reports.- gwc

Eleventh Circuit Denies Alabama's Request for Stay of Same-Sex Marriage Ruling | Daily Report:

A federal appeals court panel on Tuesday denied the state of Alabama's request for a stay of court orders finding the state's ban on same-sex marriage unconstitutional.

The one-page order by judges Gerald Tjoflat, Frank Hull and Stanley Marcus rejected the stay request without discussion in a two-page order. Tuesday's ruling means gay couples may soon begin marrying in Alabama.
U.S. District Judge Callie V.S. Granade's orders, issued last month in favor of gay couples who had sued, said that the ban on same-sex marriage found in Alabama's constitution and statutory code violate the due process and equal protection clauses of the Fourteenth Amendment. She enjoined the state from enforcing the laws, but stayed her rulings until Feb. 9 to give the state a chance to ask the Eleventh Circuit to extend the stay while the appeals court considers any appeal.
In asking the Eleventh Circuit for a longer reprieve, Alabama's lawyers acknowledged the Eleventh Circuit already had denied a similar request by the state of Florida to pause a federal ruling declaring that state's same-sex marriage ban unconstitutional.
But Alabama argued that the Florida case was different because the federal judge hearing the Florida case already had put his ruling on hold for several months, giving officials an opportunity to prepare for its implementation. Moreover, Alabama's lawyers pointed out, the Florida stay request was denied by the Eleventh Circuit before the U.S. Supreme Court had agreed to consider whether the constitution requires recognition of same-sex marriage in a group of cases out of the Sixth Circuit, meaning any stay would last only a few months until the Supreme Court ruled. A stay would avoid the "chaos and confusion" that will result if same-sex marriages are temporarily legal in Alabama, but then not legal, Alabama's lawyers argued.

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The New Republic's Legacy on Race: From Du Bois to the Bell Curve | The New Republic

The New Republic's Legacy on Race: From Du Bois to the Bell Curve | The New Republic:

by Jeet Heer

"Legacies are never simple; they create victims as well as beneficiaries. The more substantial the legacy, the more heated the disputes are over who has title of ownership, who gets to enjoy an inheritance, and who is left out in the cold.

One of the most dangerous ways to treat a legacy is to bask in past achievements and revel in riches earned by others without awareness that they came with costs. 

This shallow legacy-enjoyment is evident in the cheaper sort of nationalism, which glories in a country’s conquests without thought as to the suffering entailed.

The phrase “legacy of racism” encapsulates in a few words a large reality: Bigotries can have complex, ongoing ramifications. Few, if any, longstanding institutions have been historically free of racism. Given the pervasiveness of racism in the past, the struggle to understand this legacy and figure out how to overcome it remains a political and institutional imperative.

 Over the last few months, following The New Republic’s centenary anniversary and a staff shake-up, a perceived legacy of racism in the magazine has been the topic of intense arguments, mostly carried out online. In the wake of the debate, vexing questions demand answers: How do we reconcile the magazine’s liberalism, the ideology that animated the Civil Rights revolution, with the fact that many black readers have long seen—and still see—the magazine as inimical and at times outright hostile to their concerns? 

How could a magazine that published so much excellent on-the-ground reporting on the unforgivable sins visited upon black America by white America—lynchings, legal frame-ups, political disenfranchisement, and more—also give credence to toxic and damaging racial theorizing? And why has The New Republic had only a handful of black editorial staff members in its 100 years?"

***

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Tuesday, February 3, 2015

NJ Supreme Court Considers Disgorgement Remedy for Disloyal GC // NJLaw Journal

OTHERWISE: NJ Supreme Court Considers Disgorgement Remedy for Disloyal GC // NJLaw Journal

In Kaye v. Rosefielde the Appellate Division of Superior Court held that a lawyer who worked as an independent contractor at the jobs of General Counsel and Chief Operating Officer had an implied attorney-client relationship with Kaye the principal of two Atlantic City businesses. That subjected the lawyer to RPC 1.8governing lawyers business involvements with current clients.
The App Div affirmed most of the trial judge's findings but limited the remedies. Upheld were voiding the lawyer's interests in businesses he formed for the client, awarding counsel fees, and punitive damages. But Judge Nugent denied the demand that the lawyer disgorge the $550,000/year he had been paid as in-house counsel and personal counsel. Wages are not damages defendants have argued.

The Supreme Court granted cert "limited to the issue of whether the Appellate Division erred by affirming the trial court's holding that economic damages are a necessary prerequisite for disgorgement of the employee's salary." - gwc

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Trial Ends Over How Much BP Should Pay for Gulf Oil Spill - ABC News

Trial Ends Over How Much BP Should Pay for Gulf Oil Spill - ABC News

by Kevin McGill

 "The latest phase of a trial to determine how much BP should pay in Clean Water Act penalties for the 2010 Gulf of Mexico oil spill — which could reach $13.7 billion — ended Monday, but a decision from the judge is not expected for months.

The trial closed after two weeks of testimony and arguments by lawyers for the Justice Department, which wants a high penalty, and BP, which wants a lower figure. Anadarko Petroleum Corp., a minority owner of the ill-fated well, was also part of the proceeding and is fighting the government's push for more than $1 billion in penalties.

 Attorneys may file briefs in the case as late as April and it remains unclear how soon after that U.S. District Judge Carl Barbier will rule.

 It was the third phase of a trial to determine Clean Water Act penalties arising from the April 20, 2010, explosion of the Deepwater Horizon rig at BP's Macondo well. The blast killed 11 workers and sent oil spewing into the Gulf for 87 days.

Barbier has already issued key rulings after two earlier phases: that BP acted with "gross negligence" in the disaster, a decision BP is appealing; and that 3.19 million barrels of oil were discharged. Those two factors could lead to a maximum $13.7 billion fine based on a per-barrel penalty.

 BP argued against a heavy penalty. It said its response to the spill and cleanup effort were robust, that the economy and environment of the Gulf has recovered strongly and that it already has run up $42 billion in costs including the cleanup, response, settlements with victims and criminal penalties.

 Also, BP attorneys argued an excessive penalty would be too much of an economic hardship on BP Exploration and Production, the BP entity deemed responsible for the spill.

Government attorneys say a higher-end penalty is called for, given the economic and environmental harm caused by the spill, and they cast doubts about the effect of a high fine on BP Exploration and Production and other BP entities."

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Judge Asks for Revisions to Concussion Settlement -

Julian Edelman tackled - image
Judge Anita Brody has called for modest changes in the settlement she preliminarily approved in July.  Her February 2 order does not affect the basic structure, nor does it address the biggest gap: only those who suffer from specified diseases like parkinsonism or have already died and have been diagnosed as suffering CTE - traumatic brain injury will recover.  Thousands of players are at risk of or already suffering from CTE.  But since only an autopsy can -at present - diagnose the condition no one alive on the day of final approval will recover for that disorder.

There is much to commend in the settlement - especially medical benefits - but much to fault.  The proposed settlement has come under sharp attack.  Public Citizen Litigation Group has argued that the two lead plaintiffs cannot adequately or fairly represent the entire class of injured players.  Former player Sean Morey, in a powerful objection, made similar points and focused on the exclusion of players who now or will suffer from Chronic Traumatic Encephalopathy.  Although the number of players who have opted out is small, in my opinion the settlement is vulnerable on appeal because of the exclusion of CTE claims - except for those who have died or will die by the time of final approval.

The issue of concussions and brain injury will not go away, as millions saw Julian Edelman, dazed by a tackle in the Super Bowl, play on and score.  Edelman had missed the two previous games because of a concussion.

- gwc

Judge Asks for Revisions to Concussion Settlement -

by Ken Belson

Lawyers for the league and the former players have until Feb. 13 to submit a plan that addresses all of the judge’s concerns.

If Judge Brody is satisfied with the revisions, she is expected to complete the deal, which includes a promise from the N.F.L. to pay up to $5 million to players with certain severe neurological conditions.

The judge’s requests are designed to address some of the complaints the former players and their families expressed at a fairness hearing in November.

They include allowing all players to receive credit for the years they played in the World League of American Football, the N.F.L. Europe League and the N.F.L. Europa League. Under the current deal, those years were not used to calculate the size of an award a player could receive.

The families of retired players who were found to have chronic traumatic encephalopathy, a degenerative disease diagnosed only after death, would now be able to file claims if the diagnosis was made up to the date of the final approval of the settlement instead of July 6, when it received preliminary approval.

Judge Brody made certain dispensations for some plaintiffs who do not have medical records to support their cases.

The judge also asked that the N.F.L. remove the $75 million cap for the baseline assessment program, which is available to all players and designed to provide a benchmark to determine whether or how much a player’s cognitive condition has deteriorated.

Finally, the judge asked that the $1,000 fee for appealing a medical claim be waived for players of limited means.

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