Sunday, May 31, 2015

Move to void all Feinberg/GCCF Releases in BP Gulf Oil Spill

Kenneth Feinberg misrepresented himself as a neutral when administering BP's statutorily-mandated claims operation before the establishment of the Court-supervised Deepwater Horizon Settlement.  Now a group of claimants has moved to nullify the releases and covenants not to sue obtained by Feinberg. - gwc
BP Oil Spill Plaintiffs Move to Void Every GCCF Release and Covenant Not to Sue

The “Release and Covenant Not to Sue” requirement, which was the idea of Kenneth R.   Feinberg, forces economically and emotionally-stressed victims of the BP oil spill to sign a “Release and Covenant Not to Sue” in order to receive a miniscule payment amount for all damages, including future damages, they incur as a result of the BP oil spill.
The following is an excerpt from the memorandum of law which the plaintiffs filed in support of their Motion to Nullify.
I.    The Oil Pollution Act of 1990
The Oil Pollution Act of 1990 (OPA) is a strict liability statute. In order to recover damages under OPA, a claimant merely needs to show that his or her damages “resulted from” the oil spill.
OPA, in pertinent part, states:
“The responsible party for a vessel or a facility from which oil is discharged, or which poses the substantial threat of a discharge of oil, into or upon the navigable waters or adjoining shorelines or the exclusive economic zone is liable for the removal costs and damages that result from such incident.” See 33 U.S.C. § 2702(a).

The damages referred to in 33 U.S.C. § 2702(a) include, but are not limited to:
“Damages equal to the loss of profits or impairment of earning capacity due to the injury, destruction, or loss of real property, personal property, or natural resources, which shall be recoverable by any claimant.” 33 U.S.C. § 2702(b)(2)(E).

OPA further provides:
(a) “Payment or settlement of a claim for interim, short-term damages representing less than the full amount of damages to which the claimant ultimately may be entitled shall not preclude recovery by the claimant for damages not reflected in the paid or settled partial claim.” 33 U.S.C. § 2705(a); and

(b) “Payment of such a claim [i.e. payment to a claimant for interim, short-term damages representing less than the full amount of damages to which the claimant ultimately may be entitled] shall not foreclose a claimant’s right to recovery of all damages to which the claimant otherwise is entitled under this Act or under any other law.’’ 33 U.S.C. §§ 2715(b)(1) and (2).
"Shall" means shall. The Supreme Court has made clear that when a statute uses the word "shall," Congress has imposed a mandatory duty upon the subject of the command. See United States v. Monsanto, 491 U.S. 600, 607, 109 S.Ct. 2657, 105 L.Ed.2d 512 (1989).
Use of “shall” and “may” in statutes also mirrors common usage; ordinarily “shall” is mandatory and “may” is permissive. “The mandatory ‘shall’ ……normally creates an obligation impervious to judicial discretion.” Lexecon, Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26, 35 (1998).
Justice Souter, in delivering the opinion of the Lexecon Court, explained, “If we do our job of reading the statute whole, we have to give effect to this plain command, see Estate of Cowart v. Nicklos Drilling Co., 505 U. S. 469, 476 (1992), even if doing that will reverse the longstanding practice under the statute and the rule, see Metropolitan Stevedore Co. v. Rambo (1995) (“Age is no antidote to clear inconsistency with a statute.” (quoting Brown v. Gardner, 513 U. S 115, 122 (1994))). The language is straightforward, and with a straightforward application ready to hand, statutory interpretation has no business getting metaphysical.”
As the Supreme Court further explained,
“[I]n interpreting a statute a court should always turn first to one, cardinal canon before all others. We have stated time and again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there.” Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253–54 (1992).
II.    OPA clearly prohibits Kenneth R. Feinberg’s “Release and Covenant Not to Sue.”
This Honorable Court has held:

(a) “While OPA does not specifically address the use of waivers and releases by Responsible Parties, the statute also does not clearly prohibit it;” and
(b) “In fact, as the Court has recognized in this Order, one of the goals of OPA was to allow for speedy and efficient recovery by victims of an oil spill.”
Plaintiffs respectfully point out that this Honorable Court’s reasoning, while novel, is wrong for the following reasons.
The text and the legislative history of the OPA statute are clear. OPA clearly prohibits Responsible Parties from engaging in a “Delay, Deny, Defend” strategy wherein the victims of an oil spill are starved and ultimately forced to sign a “Release and Covenant Not to Sue” in order to receive an inadequate, miniscule payment amount for the damages, including future damages, they incur as a result of the oil spill.
As noted supra, "Shall" means shall. “The mandatory ‘shall’ ……normally creates an
obligation impervious to judicial discretion.” Lexecon, Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26, 35 (1998).

This Honorable Court further notes it has recognized that “one of the goals of OPA was to allow for speedy and efficient recovery by victims of an oil spill.” Plaintiffs respectfully point out that OPA requires more than merely “speedy and efficient.” OPA requires that all oil spill victims are fully compensated. Furthermore, the purpose of the Federal Rules of Civil Procedure is "to secure the just, speedy, and inexpensive determination of every action and proceeding." Fed. R. Civ. P. 1. A Plaintiff turns to the Court in search of justice, not merely a “speedy and efficient” determination of his or her case.
OPA’s legislative history is shot through with general statements indicative of congressional intent to ensure that all oil spill victims are fully compensated. 135 CONG. REC. H7959 (daily ed. Nov. 2, 1989) (statement of Rep. Tauzin) (“ensure that all victims are fully compensated”); 135 CONG. REC. H7964 (daily ed. Nov. 2, 1989) (statement of Rep. Hammerschmidt) (“ensure that all justified claims for compensation are satisfied”); 135 CONG. REC. H7969 (daily ed. Nov. 2, 1989) (statement of Rep. Dyson) (“assurances that damages arising from spills will be completely compensated”); 136 CONG. REC. H336 (daily ed. Feb. 7, 1990) (statement of Rep. Carper) (“ensure that those people or those businesses that are damaged by these spills are fairly and adequately compensated”); 136 CONG. REC. S7752 (daily ed. June 12, 1990) (statement of Sen. Mitchell) (“ensure the fullest possible compensation of oil spill victims”); S. REP. NO. 101–94, at 12 (1989), reprinted in 1990 U.S.C.C.A.N. 722, 734. (“These provisions are intended to provide compensation for a wide range of injuries and are not so narrowly focused as to prevent victims of an oil spill from receiving reasonable compensation.”); 135 CONG. REC. H7893 (daily ed. Nov. 1, 1989) (statement of Rep. Quillen) (“full, fair, and swift compensation for everyone injured by oil spills.”).
Efficiency is not the only touchstone of justice. A substantial body of opinion and a respect for jurisdictional principles suggest that a plaintiff ordinarily has a right to a trial in the forum of his or her choosing. See, e.g., Koster v. (Am.) Lumbermens Mut. Cas. Co., 330 U.S. 518, 524 (1947) (noting that a plaintiff ordinarily should not be denied the advantages of his chosen jurisdiction). Aggregation of cases for the purpose of facilitating settlement is a byproduct of §1407, but is not its central statutory purpose. See In re Patenaude, 210 F.3d 135, 144 (3d Cir. 2000).
Judicial economy is undoubtedly well-served by MDL consolidation when scores of similar cases are pending in the courts. Nevertheless, the excessive delay and marginalization of juror fact finding (i.e., dearth of jury trials) associated with traditional MDL practice are developments that cannot be defended. Delaventura v. Columbia Acorn Trust, 417 F. Supp. 2d at  153 (D. Mass. 2006). The appropriate focus for fund resolution of mass claims should be justice for the claimants, not merely judicial economy and closure for the corporate misfeasor.
A copy of the entire Memorandum of Law is available HERE.
Note: Before you read the comments on this article, I advise you to visit: BP Oil Spill: BP Pays PR Trolls to Threaten Online Critics

Saturday, May 30, 2015

Housing as Holdout: Segregation in American Neighborhoods by Rashmi Dyal-Chand :: SSRN

Chris Christie won the governorship of New Jersey by several appeals - the tough on corrupt politicians meme was important.  But his promise to remake the Supreme Court of New Jersey was an important appeal to white anxiety and resentment.  Central to that was his opposition to court-mandated aid to poor school districts and the pledge (carried out) to abolish the Council on Affordable Housing the agency that implemented the Court's Mount Laurel mandate to allow affordable housing in developing suburban municipalities.  Stymied by the Democratic state Senate having failed in his court-makeover, the New Jersey Supreme Court reclaimed jurisdiction and directed the lower courts to enforce the mandate.  It brushed aside the agency (COAH) which had issued no rules or regulations after the Court had held Christie had no right to abolish it by executive order.

Rashmi Dyal-Chand, a New Jersey litigator turned law professor, reviewing three books on the persistence and effects of racially segregated housing , observes:
Although the “Mount Laurel Doctrine” was meaningfully diluted by a 1985 statute that allows municipalities to meet their “fair share” of affordable housing by contributing financially to developments in other towns, the doctrine nonetheless has had an extraordinarily positive impact on affordable housing development in New Jersey.

Housing as Holdout: Segregation in American Neighborhoods by Rashmi Dyal-Chand :: SSRN

by Rashmi Dyal-Chand  (Northeastern U. School of Law)

How far have people who are not African American gone to keep African Americans out of their neighborhoods? And how far might they go? These are the questions that link the three recent books on housing reviewed in this article: Jeannine Bell, Hate Thy Neighbor: Move-In Violence and the Persistence of Racial Segregation in American Housing; Richard R.W. Brooks and Carol M. Rose,Saving the Neighborhood: Racially Restrictive Covenants, Law and Social Norms; and Douglas S. Massey et al., Climbing Mount Laurel: The Struggle for Affordable Housing and Social Mobility in an American Suburb.

Wednesday, May 27, 2015

Nebraska Abolishes Death Penalty in Veto Override

The death penalty is not fundamentally opposed by most people. But it is losing practical support. Confidence in the accuracy of the justice system has suffered with the drumbeat of exonerations, and the death penalty is now imposed with such rarity that it feels arbitrary. 
Today the nominally non-partisan but conservative single-chamber state Legislature in Nebraska overrode the veto of Gov. Pete Ricketts (R) and abolished capital punishment in the state which carried out its last execution in 1997.
 Seven years ago I predicted that New Jersey's legislative repeal of capital punishment would be a herald of change. At a one day symposium I organized (proceedings here, key resources here) we heard from prosecutors, defenders, legislators, the Governor, and the citizen group which mobilized to bring about the change. Today Nebraska followed in that track. -gwcNebraska Abolishes Death Penalty -

by Julie Bosman

LINCOLN, Neb. — Nebraska on Wednesday became the first conservative state in more than 40 years to abolish the death penalty, with lawmakers defying their Republican governor, Pete Ricketts, a staunch supporter of capital punishment who had lobbied vigorously against banning it.

By a 30 to 19 vote that cut across party lines, the Legislature overrode the governor’s veto on Tuesday of a bill repealing the state’s death penalty law. The measure garnered just enough votes to overcome the veto.

The vote at the State Capitol here capped a months long battle that pitted most lawmakers in the unicameral Legislature against the governor, many law enforcement officials and some family members of murder victims whose killers are on death row. The Legislature approved the repeal bill three times this year, each time by a veto-proof majority, before sending it to Mr. Ricketts’s desk.

Same Sex Marriage in Alabama - Yes, But...

Same-sex marriage for Alabama -- but not yet
by Lyle Denniston

A federal judge in Mobile ruled on Thursday that same-sex marriage must be available throughout Alabama, for any gay or lesbian couple wishing to apply for a license — but not yet.

U.S. District Judge Callie V.S. Granade simultaneously acted on a statewide basis — to make Alabama the thirty-seventh state where such marriages would be legal — but then put her decision on hold until after the Supreme Court rules on the constitutional issue, probably late next month.

In the meantime, no gay or lesbian couple would be able to get a marriage license in Alabama — first, because the judge’s order is not now binding on the 68 state probate judges who issue such licenses, and, second, because the Alabama Supreme Court has barred all of them from doing so.

For weeks, the potential conflict between Judge Granade in federal court and the Alabama’s highest state court has been deepening, and the actions that Granade took on Thursday could have produced a direct confrontation had she not put the new rulings on hold. She did find in her ruling that the state court’s order to the judges not to issue any licenses did not prevent her from ordering them — in an independent legal proceeding — to do so.

In fact, the judge remarked that her order would have bound all 68 judges immediately, but then her own delay order postponed any such command.

In late January, in a pair of cases, Judge Granade had struck down Alabama’s ban on same-sex marriage. But those rulings each involved only a single couple, so the decisions’ binding effect was very limited. Even so, some probate judges began issuing licenses to gay and lesbian couples based on those rulings, and hundreds of those couples were actually married before the state supreme court stepped in and issued a statewide order against any such licensing, at the request of private groups opposed to such marriages. (No same-sex couples were parties in the state supreme court proceeding.)

In the meantime, lawyers for same-sex couples made a new maneuver in Judge Granade’s court. They sought, under federal court Rule 23, the creation of a statewide class that would include any same-sex couple wishing to marry, with the order to be made binding on all 68 probate judges.

They also asked the judge to issue a statewide order requiring that any member of the class who sought a license be given one by any probate judge in any county.

On Thursday, after weeks of legal maneuvering by both sides, the Mobile judge acted: She did create the class, likely to include 7,000 or more same-sex couples, at least some number of whom — perhaps many — would want to take advantage of the opportunity to wed. She did so in an eighteen-page opinion, finding that the statewide class would satisfy all of the requirements of Rule 23, and so would a class on the other side of all 68 probate judges.

Then, borrowing the reasoning of her January rulings that the Alabama ban was unconstitutional, she issued a fourteen-page opinon extending the order to issue marriage licenses to all counties in the state, for all couples seeking such permission.

That opinion laid out all of her reasoning for the new decision, then concluded with specific orders: once again, striking down the state ban, then barring all 68 judges from enforcing the state ban, and also requiring lawyers for the couples to formally notify the judges of that duty.

If her ruling had stopped at that point, Alabama would have been the latest state where marriage of gays and lesbians had become legal everywhere within its borders. But there was a fourth order, on the last page: “Because the issues raised by this case are subject to an imminent decision by the United States Supreme Court,” her order barring enforcement of the state ban is “stayed until the Supreme Court issues its ruling.”

What would happen to the judge’s new order if the Supreme Court were to find that states have the constitutional authority to refuse to allow same-sex marriages was not mentioned, but the state would almost certainly move immediately in Judge Granade’s court to apply the Supreme Court decision and vacate her rulings.

If the Justices do rule that the right to marry must be open to same-sex couples all across the nation, then Judge Granade’s rulings on Thursday would presumably go into effect very quickly, if not immediately.

Monday, May 25, 2015

An Abridged Treatise on Attorneys' Fees Awards |

An Abridged Treatise on Attorneys' Fees Awards |

by David M. Gersten

22nd Century Properties, LLC, et. al. v. FPH Properties, LLC,
No. 4D13-3537 (Fla. 4th DCA 2015)
Judge Robert Gross gives the reader a most informative and entertaining read on the issue of attorneys’ fees awards based on an offer of judgment pursuant to Section 768.79, Florida Statutes (2006). I am stepping out on a writer’s limb to state that the opinion is so well written that it transforms judicial prose into judicial poetry—indeed a hard feat given the subject matter of the opinion.
The case “arises from a real estate venture gone awry.” Apparently, the parties entered into a venture to develop properties for resale. Ultimately, the deal blew up when one partner falsified documents concerning finances and then mined the litigation landscape with stumbling blocks to prevent discovery by the other partner.
During discovery, the “appellants’ scheme unfolded like a peeled onion—each discovery request uncovered a new layer of the ploy.” The appellee had to file twenty-seven discovery motions, moved multiple times for contempt, and had to amend the complaint twice to encompass newly discovered evidence. Although the appellee moved to strike appellants’ pleadings based on fraudulent or deceptive discovery tactics, Trial Judge John J. Murphy, III, stood on the judicial decision making cliff but did not throw the pleading out. Instead, Judge Murphy entered an order excoriating the appellant:
[T]his court will not stand idly by and permit a party to file forged and fraudulent documents, to delay proceedings and to provide falsified responses to discovery requests . . . As such, this Court finds that [FPH] is entitled to recover reasonable attorneys’ fees for the extra work [it] had to undertake.
After the trial, the trial judge awarded over $1.5 million in damages. The damages were based on several causes of action. On appeal, the underlying judgment was affirmed without an opinion.
Meanwhile, two years before the bench trial, the plaintiff served the defendant with a demand for judgment pursuant to 768.79, Florida Statutes (2006), offering to settle the case for a cool $1 million. This set up a post-trial evidentiary hearing on attorneys’ fees where judge Murphy awarded appellee fees. This appeal followed.
The Law of Attorneys’ Fees
Judge Gross’ opinion takes the reader through a concise tour of the law of attorneys’ fees. The opinion touches upon a panoply of important issues like: burden of proof, evidence, expert testimony, interrelated causes of action, trial strategy, Florida Statute Section 768.79, “Lodestar,” proper and improper billing, results attained, and even the appellate court’s standard of review. Because the opinion is comprehensive and this article is limited in length, below is a highlight reel:
Read more 

LBJ Before Selma - Wait!..No, Go! /Andrew Sprung -xpostfactoid

LBJ before Selma: wait -- no, go | xpostfactoid
by Andrew Sprung

After seeing Ava DuVernay' Selma a few weeks ago, I bought Nick Kotz's Judgment Days: Lyndon Baines Johnson, Martin Luther King, Jr. and the Laws that Changed America (2005). It's a digest of LBJ and King's interactions, beginning in fruitful if sometimes tense collaboration and ending in tragic enmity.  I can't say how central a source this book itself was for the movie, but the encounters it records indicate that those who claim that Johnson was more supportive of the voting rights campaign than their early encounter in the movie implies and those who claim that the scene is an accurate depiction of a pre-Selma encounter are both right. - 
read more

Court hearing China's landmark NGO environmental lawsuit - China -

China in 2014 revised its Environmental Protection Law.  Article 58 grants registered  public interest organizations standing to sue.  Though hampered by minimal resources, and judicial inexperience, but emboldened by the strong policy support found in the law, NGO's have begun to take up the challenge. - gwc

Court hearing China's landmark NGO environmental lawsuit - China -

Court hearing China's landmark NGO environmental lawsuit


BEIJING -- A Chinese court has begun hearing a lawsuit filed by green organizations against a quarry for environmental damage in a landmark case empowered by China's strengthened environmental law.
The case, filed by Friends of Nature and Fujian Green Home, opened in Nanping Municipal Intermediate People's Court in the southeastern province of Fujian on Friday.
The two NGOs accuse four people of running an unlicensed quarry that has severely damaged vegetation on a hill in Nanping City since 2008, demanding they take responsibility for restoration work, said a lawyer for the plaintiffs.
This is the first NGO-filed case over non-pollution-related environmental damage to be heard in a Chinese court since the amended Environmental Protection Law took effect on January 1.
The law allowed city-level NGOs to launch environmental lawsuits, which conservationists said encourages more social forces to join the battle against profit-obsessed companies and local governments who neglect their green liabilities.
China has only about 80,000 officials enforcing its environmental laws, which experts say is far from enough for overseeing the country's 1.5 million companies, counting the registered ones only.
But about 700 organizations can join the fight under a new law, which allows any NGO registered at city-level or higher that has specialized in environmental protection for more than five years to initiate legal cases on pollution and environmental damage, legal experts said.
"Such environmental lawsuits can deter polluting factories by raising their lawbreaking costs and by encouraging public supervision," said Ma Yong, legal expert with the All-China Environment Federation.
But Ma said the many difficulties, including high expenses, that are involved in launching such legal actions mean a remarkable increase in environmental lawsuits is unlikely. He also opposed overpraising such cases.
"Such lawsuits are important supplement to government law enforcement and the last defense line, but not replacement," Ma said. "Most of the environmental problems still need to be solved by the government."

Public-Sector Jobs Vanish, Hitting Blacks Hard -

Is anti-government and anti-tax sentiment unrelated to anti-Black sentiment?  It is practically, if not logically linked.  The sentiments converge. - gwc

Public-Sector Jobs Vanish, Hitting Blacks Hard -

by Patricia Cohen

For the Ingrams and millions of other black families, working for the government has long provided a dependable pathway to the middle class and a measure of security harder to find in the private sector, particularly for those without college degrees.

Roughly one in five black adults works for the government, teaching school, delivering mail, driving buses, processing criminal justice and managing large staffs. They are about 30 percent more likely to have a public sector job than non-Hispanic whites, and twice as likely as Hispanics.

“Compared to the private sector, the public sector has offered black and female workers better pay, job stability and more professional and managerial opportunities,” said Jennifer Laird, a sociologist at the University of Washington who has been researching the subject.

During the Great Recession, though, as tax revenues plunged, federal, state and local governments began shedding jobs. Even now, with the economy regaining strength, public sector employment has still not bounced back. An incomplete recovery is part of the reason, but a combination of strong anti-government and anti-tax sentiment in some places has kept down public payrolls. At the same time, attempts to curb collective bargaining, like those led by Wisconsin’s governor, Scott Walker, a likely Republican presidential candidate, have weakened public unions.

Saturday, May 23, 2015

Teachers protest Washington school fubding failure

Despite a. State Supreme Court contempt citation, the Washington legislature has failed to fund K~12 schools.

Wednesday, May 20, 2015

Unjust Liability Cap in Amtrak Case //John Culhane //Slate

Liability damages caps are mandates that the injured make an involuntary donation to the tortfeasor - that old-fashioned but expressive noun.  The Amtrak cap was justified on the ground that Amtrak was federally funded.  Still is - under-funded. - gwc
Amtrak derailment lawsuits: Federal law limits damages to $200 million. Slate
by John Culhane // Widener Law School

The news from last week’s horrific Amtrak derailment has followed a predictable course, from focus on the deaths and injuries to a search for an explanation and then for accountability. For currently inexplicable reasons, the train accelerated at precisely the wrong time: as it approached a dangerous curve. And since Amtrak hadn’t gotten around to installing a system called Positive Train Control, which could have stopped the train automatically, the engine jumped off the tracks at the curve, and passenger cars flipped over or were crushed.
As soon as the issue of blame surfaced and then, inevitably, possible lawsuits, so did this fact: Because of a damages-limiting federal law enacted in 1997, the victims and their survivors are unlikely to be fully compensated for injury or death. The law limits recovery to a total of $200 million per accident; that’s probably not enough in the case of a mass disaster like this one, in which a single victim’s claim could reach $20 million. Eight people were killed in the Philadelphia accident, and scores were seriously injured. Twenty remain hospitalized, with five in critical condition. Perhaps this tragedy will spark a reform or repeal of this ill-advised law, but I wouldn’t count on it. An even worse train accident that killed 25 people seven years ago in California didn’t lead to remedial action by Congress. All that’s come out of that legislative body since this latest disaster has been a tone-deaf committee vote in the House of Representatives the very next day to slash Amtrak’s paltry funding even more.
Why is there a $200 million limit in the first place? As usual with Amtrak, the reason can be traced to congressional reluctance to fund the program at sustainable levels. At the time the 1997 law was passed, the federally subsidized company was facing bankruptcy and needed bailout funds. The reluctant lawmakers ponied up the dough needed to keep the wheels turning, but they inserted the liability-limitation provision into the Amtrak Reform and Accountability ActThe effect was to shift fiscal responsibility from the taxpayers as a whole to the injured parties by reducing the monetary sum they’d otherwise be eligible to recover in damages through the tort system. And the amount has never been increased to reflect inflation.

Gavel Grab » Kansas Legislation Denounced As ‘Blackmail’ and ‘Power Grab’

Gavel Grab » Kansas Legislation Denounced As ‘Blackmail’ and ‘Power Grab’

by Emily Carter

Controversy over strings attached to the Kansas judicial budget is attracting coverage across the state and nation. Under new legislation, the entire state court operating budget for 2016 and 2017 would be cut if the state Supreme Court rules recent administrative changes unconstitutional.

The Wall Street Journal says that legal experts believe “the legislation may be the first to peg the Third Branch’s budget to the outcome of an individual case, and public-interest groups described it as the most pointed challenge to judicial independence in recent memory.” An editorial in the Lawrence Journal-World describes the legislation as “blackmail” and a “power grab,” whereby “lawmakers are trying to alter the roles, responsibilities and fundamental balance of power among the state’s three branches of government.”

“If legislators and the governor think the Kansas Constitution is wrong,” the editorial reads, “they should tackle that issue head-on and seek to change it — not use budget blackmail to try to force the state’s independent judiciary to change its mind.” An op-ed in the Kansas City Star agrees, arguing that the bill is about control, not about decentralizing power as proponents assert.

Watch Gavel Grab as this story develops.

- See more here

Study Links Record Dolphin Die-Off In The Gulf Of Mexico To Deepwater Horizon Spill | ThinkProgress

Dolphins are seen swimming through the oil spilling from the Deepwater Horizon oil well at the height of the spill

Study Links Record Dolphin Die-Off In The Gulf Of Mexico To Deepwater Horizon Spill | ThinkProgress

by Katie Valentine

"Exposure to oil and dispersants from the 2010 Deepwater Horizon oil spill caused bottlenose dolphins in the Gulf of Mexico to develop lesions and die, according to a new study.
The study, published Wednesday in PLOS One, looked at that the unusually high number of dolphins that died off the coast of Louisiana, Alabama, and Mississippi between June 2010 and December 2012. The researchers compared the 46 dead dolphins they looked at to 106 dolphin carcasses they found outside either outside of the “unusual mortality event” region — dolphins found in places such as South Carolina, Texas, and North Carolina — or found before the Deepwater Horizon spill. The disaster, which killed 11 men and sent millions of gallons of oil into the Gulf of Mexico, occurred in April 2010.
The study found that the dolphins associated with the unusual mortality event — which, according to the National Oceanic and Atmospheric Administration, is the highest bottlenose dolphin die-off in the Gulf of Mexico, and is ongoing — were more likely to have certain forms of pneumonia and adrenal problems than other dolphins, and that these problems were consistent with exposure to oil and dispersants. The dead dolphins that had been affected by the spill were found with lung, liver, and adrenal lesions.
“These dolphins had some of the most severe lung lesions I’ve ever seen,” Kathleen Colegrove, one of the study’s authors and associate professor at the University of Illinois, said during a press call "

'via Blog this'

Tuesday, May 19, 2015

78 settlements Approved as WTC Cleanup Litigation Winds Down

OTHERWISE: 78 settlements Approved as WTC Cleanup Litigation Winds Down

Mass Compensation After September 11 // Adam Zimmerman

PrawfsBlawg: Mass Compensation After September 11

by Adam Zimmerman (Loyola Law School - Los Angeles)

[I]n the last few weeks, we've crossed two small milestones for thousands of recovery workers who claim they suffered toxic injuries at Ground Zero.  The first was announced by Sheila Birnbaum, the administrator of the new September 11 Victim Compensation Fund, which Congress reopened to pay claims brought by first responders.  After three years overseeing the Fund, Birnbaum announced that she had resolved $1 billion dollars worth of claims for over 4,400 first responders.  
The second appeared in an order by Federal District Judge Hellerstein, who has overseen almost all the September 11-related lawsuits since 2002.  After more than a decade of litigation, Judge Hellerstein's order noted the parties were in the "final stage" of settling recovery workers' claims in federal district court.  In re World Trade Center Disaster Cite Litigation, 2015 WL 1262283 (S.D.N.Y. Mar 15, 2015).  Judge Hellerstein’s opinion was just a small order among many. But it was related to a global $810 million settlement for recovery workers, brokered with the assistance of two other special masters (and established Tort scholars) James Henderson and Aaron Twersky. 
As I suggest below, each settlement effort raises interesting questions about the best way to gather highly contested scientific evidence in a massive dispute.  Public compensation schemes like the new September 11 Victim Compensation Fund can rely on innovative and experimental administrative law tools--like New York's unprecedented 71,000 member "health registry"--to collect massive amounts of new health information and flexibly adjust the way they compensate people over time. Settlements in court aren't as flexible, but aggregate litigation has other advantages.  Technological innovations in complex litigation--like Judge Hellerstein's comprehensive, searchable electronic database of 10,000 WTC claims discussed below--can sometimes allow decisionmakers to see patterns and trade-offs that an administrative agency won't when it decides each case, one at a time.

Monday, May 11, 2015

The Real Problem With America’s Inner Cities -

The Real Problem With America’s Inner Cities -

by Orlando Patterson // Harvard University

CAMBRIDGE, Mass. — THE recent unrest in Baltimore raises complex and confounding questions, and in response many people have attempted to define the problem solely in terms of insurgent American racism and violent police behavior.
But that is a gross oversimplification. America is not reverting to earlier racist patterns, and calling for a national conversation on race is a cliché that evades the real problem we now face: on one hand, a vicious tangle of concentrated poverty, disconnected youth and a culture of violence among a small but destructive minority in the inner cities; and, on the other hand, of out-of-control law-enforcement practices abetted by a police culture that prioritizes racial profiling and violent constraint.
First, we need a more realistic understanding of America’s inner cities. They are socially and culturally heterogeneous, and a great majority of residents are law-abiding, God-fearing and often socially conservative.

According to recent surveys, between 20 and 25 percent of their permanent residents are middle class; roughly 60 percent are solidly working class or working poor who labor incredibly hard, advocate fundamental American values and aspire to the American dream for their children. Their youth share their parents’ values, expend considerable social energy avoiding the violence around them and consume far fewer drugs than their white working- and middle-class counterparts, despite their disproportionate arrest and incarceration rates.

Friday, May 8, 2015

Court: The next step for Central American minors living illegally in the US | National Catholic Reporter

Court: The next step for Central American minors living illegally in the US | National Catholic Reporter

If Joel gets sent back to El Salvador, he knows he'll be killed.
The 11-year-old refused to pay off gang members collecting money outside his school and received beatings for his lack of cooperation. After his uncle tried to defend him, the violence only got worse. Joel's mother, who came to the United States when Joel was 2, decided her son should risk the trip north. For now, he is safe, living with his mother, stepfather and three siblings. But Joel's future is uncertain.
Joel, who asked that his last name not be used, was one of 16,404 unaccompanied minors from El Salvador apprehended by the U.S. Border Patrol in 2014. He was part of what has become known as "the surge" in border crossings by young people from Central America in recent years. In 2011, 1,394 children attempted the journey from El Salvador. In 2013, that number had grown to nearly 6,000 before almost tripling for the next year. A similar pattern is true for Guatemala and Honduras. Across all three Central American countries in 2014, 51,705 children were caught crossing the border alone.

Missouri Governor Signs Med mal Caps bill //TortsProf Blog

TortsProf Blog

Missouri Governor Jay Nixon signed the med mal caps bill passed by the legislature (earlier coverage here):
The limits apply only to noneconomic damages, not medical costs or lost wages.
Most noneconomic damages would be capped at $400,000. For catastrophic cases, including paralysis or brain injury, the cap would be $700,000.
The bill also doubles the limit in wrongful death cases to $700,000. has details.

Thursday, May 7, 2015

Justice Stevens: U.S. Should Compensate Guantanamo Prisoners Unjustly Held

OTHERWISE: Justice Stevens: U.S. Should Compensate Guantanamo Prisoners Unjustly Held

In a speech to members of the corporate defense bar group Lawyers for Civil Justice retired Justice John Paul Stevens called for compensation for those held at Guantanamo without cause.  Describing Congress's actions to block closure of Guantanamo as "even more irrational than the detention of Japanese citizens" in WW II Stevens calls for a change in legal doctrine.  
While embracing Justice David Souter's dissent in Ashcroft v. Iqbal Stevens called for a change in doctrine.  Government should be liable under respondeat superior for constitutional violations, while affording personal immunity to policy-makers like Attorney General John Ashcroft who were presumably acting from patriotic impulse even if they "encouraged or tolerated improper efforts to obtain information about potential threats". 

Sunday, May 3, 2015

From Ferguson to Baltimore: The Fruits of Government-Sponsored Segregation | Economic Policy Institute

From Ferguson to Baltimore: The Fruits of Government-Sponsored Segregation | Economic Policy Institute

by Richard Rothstein

In Baltimore in 1910, a black Yale law school graduate purchased a home in a previously all-white neighborhood. The Baltimore city government reacted byadopting a residential segregation ordinance, restricting African Americans to designated blocks. Explaining the policy, Baltimore’s mayor proclaimed, “Blacks should be quarantined in isolated slums in order to reduce the incidence of civil disturbance, to prevent the spread of communicable disease into the nearby White neighborhoods, and to protect property values among the White majority.”
Thus began a century of federal, state, and local policies to quarantine Baltimore’s black population in isolated slums—policies that continue to the present day, as federal housing subsidy policies still disproportionately directlow-income black families to segregated neighborhoods and away from middle class suburbs.
Whenever young black men riot in response to police brutality or murder, as they have done in Baltimore this week, we’re tempted to think we can address the problem by improving police quality—training officers not to use excessive force, implementing community policing, encouraging police to be more sensitive, prohibiting racial profiling, and so on. These are all good, necessary, and important things to do. But such proposals ignore the obvious reality that the protests are not really (or primarily) about policing.
In 1968, following hundreds of similar riots nationwide, a commission appointed by President Lyndon Johnson concluded that “[o]ur nation is moving toward two societies, one black, one white—separate and unequal” and that “[s]egregation and poverty have created in the racial ghetto a destructive environment totally unknown to most white Americans.” The Kerner Commission (headed by Illinois Governor Otto Kerner) added that “[w]hat white Americans have never fully understood—but what the Negro can never forget—is that white society is deeply implicated in the ghetto. White institutions created it, white institutions maintain it, and white society condones it.”
In the last 50 years, the two societies have become even more unequal. Although a relatively small black middle class has been permitted to integrate itself into mainstream America, those left behind are more segregated now than they were in 1968.
When the Kerner Commission blamed “white society” and “white institutions,” it employed euphemisms to avoid naming the culprits everyone knew at the time. It was not a vague white society that created ghettos but government—federal, state, and local—that employed explicitly racial laws, policies, and regulations to ensure that black Americans would live impoverished, and separately from whites. Baltimore’s ghetto was not created by private discrimination, income differences, personal preferences, or demographic trends, but by purposeful action of government in violation of the Fifth, Thirteenth, and Fourteenth Amendments. These constitutional violations have never been remedied, and we are paying the price in the violence we saw this week.
Following the police killing of Michael Brown in Ferguson, Missouri, last August, I wrote The Making of Ferguson, a history of the state-sponsored segregation in St. Louis County that set the stage for police-community hostility there. Virtually every one of the racially explicit federal, state, and local policies of segregation pursued in St. Louis has a parallel in policies pursued by government in Baltimore.