Saturday, August 29, 2015

Of Ferguson and Constitutional Theory // Mark Graber// Balkinization

Constitutional discourse today focuses on abstractions.  The Affordable Care Act is asserted to be an overreach because the "commerce clause" does not authorize the national government because "The individual mandate...does not regulate
existing commercial activity. It instead compels individuals to become active in commerce by purchasing a product, on the ground that their failure to do so affects interstate commerce." (C.J. Roberts -NFIB v. Sebelius)

Same sex marriage must be recognized because it is a matter of "liberty" (Justice Kennedy - Obergefell v. Hodges).

But there is another way to approach the entire problem: how can we assure the health of our people?  Will we advance the "pursuit of happiness" by allowing people to bond in marriage regardless of sex?  That approach is a functional constitutionalism - not one that seeks to limit government.

The abstract approach leads those who write about the constitution to pay little heed to the question: how can we improve the lives of the people? Mark Graber addresses the problem. - gwc

Balkinization: Of Ferguson and Constitutional Theory

by Mark Graber

***Perhaps constitutional theory is partly returning to its late eighteenth century roots. A good deal of scholarship suggests that the main impetus for the Constitution of 1789 was a sense among elites that they were losing in state politics. Nationalizing politics would greatly improve the chance that rights elites believed were fundamental (contracts) would be protected while throwing obstacles in the paths of rights (binding instructions) less affluent Americans wanted protected. The Constitution of 1868 had a different premise. The persons responsible for the Fourteenth Amendment were far more concerned with constructing a constitutional politics that would protect persons of color than with determining the best interpretation of equal protection of the law, a matter on which they disagreed. If the citizens of Ferguson, Missouri are to be restored to their central place in American constitutionalism, we need to think more about the constitutional questions concerning how a constitutional order can be constructed that treats all persons with equal concern and respect and less about the interpretive questions historically at the margins of the constitutional enterprise.

Kim Davis Continues to Deny Same sex Marriage Applications, Defying Courts | Equality Case Files

Contempt order 9/3/15
Preliminary injunction against Davis prohibiting her from "applying her `no marriage licenses' policy" to future applications by any person qualified to marry under Kentucky law.9/3
Judge Bunning finds Davis in contempt, incarcerates her until she complies 9/3
 6th Circuit orders mediate conference 9/2/15
FrCvP 70 Enforcing a Judgment
Kim Davis refuses to issue marriage licenses "under God's authority"
The contempt motion
Davis's reply brief 9/2
KY Senate Pres - Amicus Brief 9/2
Memorandum of law in support of preliminary injunction 8/15/15 (The Court must again point out that the act of issuing a marriage license to a same sex couple merely signifies that the couple has met the legal requirements to marry. It is not a sign of moral or religious approval.)

Kim Davis -the Kentucky county clerk who has for two months (sinceObergefell v. Hodges) refused to issue marriage licenses has petitioned Supreme Court Justice Elena Kagan for a stay of the order compelling her to issue a marriage license to a same sex couple.  Represented by Liberty Counsel (slogan Stand for marriage  Stand against Tyranny), Davis takes the stand urged by Catholic conservative lawyer/philosopher Robert George: Obergefell, like Dred Scott, is a decision that should be defied.

Davis - who is facing charges of official misconduct - seeks accommodation.  Perhaps her strongest argument is that she should be treated like conscientious objectors who refuse to carry a weapon.  But perhaps she should like Gandhi go to jail as an act of conscience, or like some C.O.'s be compelled to perform corporal works of mercy.  -gwc

Kim Davis SCOTUS Stay Application | Equality Case Files

The political ideology of American lawyers

Big survey, big database.  I suppose we're supposed to note that we're not surprised. - gwc
The political ideologies of American lawyers

5 unavoidable truths about school funding « Education Votes

In San Antonio v. Rodriguez (1973) the U.S. Supreme Court spurned the option to use the equal protection clause of the 14th Amendment to buttress the fight against the unequal part of separate but equal the United States Supreme Court set its public school integration objectives on the road to oblivion.  Seizing hold of the "color blind" constitution concept in Parents Involved v. Seattle  (2007) the firmly conservative court majority steadily moved to "don't lift a finger" - `it's their own fault' as the driving principle of the successful effort to derail school desegregation as a public policy. - gwc
5 unavoidable truths about school funding « Education Votes

By Amanda Litvinov / photo by Anthony Iezzi

We know the strategies that help close achievement gaps: Lower class sizes. A broad curriculum. Attraction and retention of highly qualified teachers.

But these strategies are unobtainable without stable, adequate, and equitable funding. And that’s an approach to closing achievement gaps that we’ve never really tried says Bruce D. Baker, a professor in the Department of Educational Theory, Policy, and Administration in the Graduate School of Education at Rutgers University.

Baker is routinely frustrated by the pundits and policymakers who claim that America “pours money into failing schools.” We don’t, and we haven’t.

That’s the first thing you should know about school funding.

1. “The data show that we’ve never provided sustained, adequate, and equitable funding in any of our disadvantaged communities,” says Baker. Too often, promising efforts on the part of one administration or elected body are abandoned after the next election cycle. And short-term funding improvements just don’t move the dial for struggling schools.

Here are 4 more truths about school funding:

2. Two-thirds of voters believe states should close tax loopholes before considering any cuts to public education. Some of our nation’s most profitable corporations pay less in state and federal income taxes than the average working family. And that means the loss of hundreds of billions, if not trillions, of dollars that pay for essentials like roads, bridges, emergency services, and schools.

3. The needs of poorly funded districts are not met by federal programs like Title I and IDEA. Federal funding makes up only about 10 percent of all school funding. Federal education programs, while incredibly important, have simply never been funded at levels that would move the dial on eradicating inequities. Ultimately, it’s up to the states to equitably finance their schools.

4. No punitive evaluation system has ever been shown to make a dent in achievement gaps–but improving state school finance systems has. Money does matter. And more equitable distribution of funding can improve outcomes through targeted, sustained spending in high-needs schools, as studies of school finance reforms in the 1990s in Michigan, Kansas, and Massachusetts show.

5. A court ruling in favor of increasing school funding doesn’t automatically bring relief for underfunded schools. Although such court cases do put pressure on state legislatures to address inadequate school funding, they do not necessarily make those funding systems more equitable. It is up to voters to hold elected leaders accountable for addressing inequity in school funding.

Synod members should include sensus fidei | National Catholic Reporter

It has often struck me that Catholic doctrine and American constitutional adjudication have a good deal in common.  The hermeneutic - interpretation of the Gospels -  is based on texts that contain both broad statements of equitable principles "love your neighbor, what you do for these the least of my brethren you do for me", parables, and a few commands.
Catholic doctrine is rooted in the text, the teachings of the Church and the experience of the faithful.  Biblical command plays little role.  Understandings change - and doctrine evolves by paying attention to the experience of the faithful.
So too has our constitution evolved.  Equal protection in the original conception did not include women, and gays were not in anyone's mind.  Now we consider the extension of such principles to women and gays to be pretty much undisputable.
The danger is that when there is a final authority - Pope or Supreme Court - the understanding can be frozen or reversed, the views of the people discarded. Popular opinion is not a command in law or theology but the impact of doctrine should never be ignored.  It informs even where it does not command. - gwc
Synod members should include sensus fidei | National Catholic Reporter
Pope Francis has called for new ways for the journey of faith of the pilgrim people of God. By exercising the collegiality envisioned by the Second Vatican Council, he has encouraged the Synod of Bishops on the family to participate in open discussions on the various issues. As we await the second session of this synod, it seems particularly valuable to benefit from the 2014 document issued by the International Theological Commission, "Sensus Fidei in the Life of the Church."

As a retired pastor who was blessed with the opportunity to study John Henry Newman for a doctorate in theology at the Catholic University of Leuven, it was a pleasure to read his insights on the development of doctrine and the sense of the faithful, revived in our era by this Vatican commission. In this short article without footnotes, and with modest credentials, the best I can do is to offer some highlights from the commission's document and recommend that the synod participants become familiar with its profound theological perspective.

In our Catholic church, we believe in the indwelling of the Holy Spirit within all the baptized faithful. By the gift of the Holy Spirit, all of the baptized participate in the prophetic office of Jesus Christ. As a result, the faithful have an instinct for the truth of the Gospel that enables them to recognize and endorse authentic Christian doctrine and practice, and to reject what is false.

The Second Vatican Council strongly emphasized the importance of the sense of the faithful, especially in the Dogmatic Constitution on the Church. Although distinguishing between the teaching church (ecclesia docens) and the learning church (ecclesia discens), the council affirmed that all the baptized participate in their own proper way in the three offices of Christ -- as prophet, priest and king.

The council clearly taught that the laity are not merely passive recipients of what the hierarchy teaches and theologians explain; rather, they are living and active subjects within the church. All believers play a vital role in the articulation and development of the faith.

As our church moves through the challenges of history, we are confronted with new circumstances, with the progress of knowledge and culture. We have been asked to read the signs of the times, to interpret them in the light of the divine word and to discern how they may enable revealed truth itself to be "more deeply penetrated, better understood, and more deeply presented."

The sense of the faithful is not only reactive but also proactive and interactive as the church and all its members make their pilgrim way in history. The sensus fideiis therefore not only retrospective but also prospective, and both these aspects are highly important.

`Give us the ballot' - by Ari Berman - NY times Book Review

In Shelby County v. Holder the C.J. argues that the Voting Rights Act is no longer needed- so much has been accomplished.  Its strictures now unfairly burden the reformed southern states.  But, Berman and Rosen remind us, Roberts has long been motivated to gut the Act.  
Conservatives in the Reagan administration lobbied against the amendments, including John Roberts, then a 26-year-old special assistant to the attorney general, who wrote more than 25 memos opposing them. “An effects test would eventually lead to a quota system in all areas,” Roberts wrote. Nevertheless, the Senate and the House restored the effects test by a nearly unanimous vote, and President Ronald Reagan signed the amendments, which he followed with a reception attended by Coretta Scott King.
Roberts' elevation gave him the power, with four like-minded colleagues, to accomplish what political considerations had prevented his master from accomplishing thirty years ago.   - gwc

‘Give Us the Ballot,’ by Ari Berman - The New York Times
Reviewed by Jeffrey Rosen

“Give Us the Ballot” is an engrossing narrative history rather than constitutional analysis. Berman does not explore why justices who are devoted to the original understanding of the Constitution have repeatedly voted to narrow the scope of the Voting Rights Act with the argument that the equal protection clause of the 14th Amendment is colorblind. (In fact, as Justice John M. Harlan observed in his 1964 dissent from one of the original Supreme Court decisions regarding “one man, one-vote,” the framers of the 14th Amendment believed that the equal protection clause did not regulate voting or apportionment at all.) Still, Berman vividly shows that the power to define the scope of voting rights in America has shifted from Congress to the courts, a result that would have surprised the Reconstruction-era framers.


The Modern Struggle for Voting Rights in America
By Ari Berman
372 pp. Farrar, Straus & Giroux. $28.

Thursday, August 27, 2015

Litigation Continues on Epidemic of Hip Implant Failures | Dallas-Fort Worth Legal Examiner | Dallas-Fort Worth Texas Personal Injury Lawyer

DePuy ASR Metallosis Injury Attorney
A plaintiffs lawyer reports on the hip implant litigation against Johnson & Johnson, manufacturer of metal-on-metal prostheses.  J&J has settled the ASR model cases, but not the Pinnacle model cases.  In a dramatic win for the company in October 2014 a Dallas federal court jury rejected a claim in a trial presented by premier plaintiffs lawyer Mark Lanier.  Ten cases have been selected for bellwether trials. - gwc

Epidemic of Hip Implant Failures | Dallas-Fort Worth Legal Examiner | Dallas-Fort Worth Texas Personal Injury Lawyer

by Shezad Malik, MD, JD

The epidemic of premature metal on metal hip implant failure continues surge at an alarming rate. DePuy ASR, DePuy Pinnacle, Biomet Magnum, Smith and Nephew, Wright Conserve, Zimmer Durom cup and Stryker Rejuvenate and ABG II, are among hip replacements that continue to fail prematurely and require painful and risky revision surgery.

Latest $2.5M Oklahoma Jury Verdict

Andrea Smith, from Oklahoma has been awarded $2.5 million after suffering metal blood poisoning from DePuy ASR hip replacements. The state court jury found the DePuy ASR hip to be defective and unreasonably dangerous.

Smith, received ASR hip implants on each side in October 2006 and February 2007. According to Smith, she had to undergo revision surgery to have the implants removed in 2011 and 2012, after high levels of Cobalt and Chromium metal ions were found in her blood.

More Than 7,700 J&J DePuy Pinnacle Hip Lawsuits

J&J is continues to deny, delay and defend thousands of cases involving similar metallosis and premature failure problems from the DePuy Pinnacle hip. The DePuy Pinnacle is an older model that features a substantially similar metal-on-metal design.

There are currently more than 7,700 DePuy Pinnacle hip lawsuits pending throughout the U.S. In the federal court system, as of 7/15/2015, all complaints involving problems with DePuy Pinnacle implants are centralized in the U.S. District Court for the Northern District of Texas under U.S. District Judge Ed Kinkeade as part of a multidistrict lawsuit (MDL).

DePuy Pinnacle Bellwether Trials

The Dallas court has identified ten different cases that have been selected to be prepared for early trial dates. These early trials are known as “bellwether” cases. The trials help the parties gauge how juries may respond to similar evidence and testimony that is repeated throughout the litigation.

The consolidated federal case is In re DePuy Orthopedics Inc., ASR Hip Implant Products Liability Litigation, 10-MD-2197, U.S. District Court, Northern District of Ohio (Toledo).

What Should Public Health Officials Be Doing About E-Cigarettes?


What Should Public Health Officials Be Doing About E-Cigarettes?

by John Maa  // Health Affairs Blog

Are electronic cigarettes a safer alternative to combustible cigarettes, or are they a new gateway to a lifetime of nicotine addiction? In the past month, the editors of The New York Times noted the opposite conclusions from the British agency Public Health England that reported e-cigarettes can reduce the health risks of smoking by 95 percent, compared to a study in the Journal of the American Medical Association, which showed that ninth graders who tried e-cigarettes were far more likely to then use regular combustible tobacco within a year.
In a step that may help resolve this controversy, the Food and Drug Administration (FDA) is soon expected to pass federal e-cigarette “deeming” regulations, which are so named because the Family Smoking Prevention and Tobacco Control Act of 2009 grants the agency oversight authority for additional tobacco products that it “deems to be subject” to the Act.
But while the debate they have ignited is new, electronic cigarettes themselves are not. The patent for their first prototype was issued in 1963, and the tobacco industry was approached decades ago with this technology as an alternative to cigarettes. Not until nearly a decade after the 1998 Tobacco Master Settlement Agreement did the tobacco industry become interested in e-cigarettes, best displayed by their recent acquisition of many of the smaller e-cigarette manufacturers.
This delay leaves some to wonder: why didn’t Big Tobacco champion e-cigarettes much earlier if they truly believed them to be “harm reduction” devices? In the following blog post, I suggest five key steps that policymakers, regulators, and public health advocates should take on e-cigarettes.

Wednesday, August 26, 2015

Maryland Restricts Racial Profiling in New Guidelines for Law Enforcement - The New York Times

Maryland Restricts Racial Profiling in New Guidelines for Law Enforcement - The New York Times

by Sheryl Gay Stolberg

BALTIMORE — Eight months after the Justice Department announced new curbs on racial profiling, Maryland became on Tuesday the first state to follow suit, with guidelines aimed at severely restricting law enforcement officers from singling out suspects based on traits including race, ethnicity and sexual orientation.
Attorney General Brian E. Frosh of Maryland issued the rules in a nine-page memorandum in which he condemned profiling of racial minorities by the police, calling it a “deeply unfair” practice.
“Racial profiling continues despite the fact that it is against the law of the United States; it’s against Maryland law,” Mr. Frosh said in a telephone interview shortly after announcing the guidelines at a news conference in the state capital, Annapolis. “We need people to understand that racial profiling is illegal, and it’s bad police work.”
Maryland law requires law enforcement agencies to have policies prohibiting racial and ethnic profiling during traffic stops; the new guidelines expand on that in two ways, Mr. Frosh’s office said. Under the law, officers may not use race and ethnicity in making police decisions; the guidelines also include national origin, identity, disability and religion as traits that may not be considered. They apply to routine operations, to investigations and to traffic stops.
Law enforcement officers may not consider personal characteristics while “conducting routine police activity,” the memorandum says. They may do so only if they have “credible information” that such characteristics are “directly relevant” to the investigation of a crime.
Read more

Tuesday, August 25, 2015

More on Race and Tort Damages // TortsProf Blog

TortsProf Blog

by Christopher J. Robinette

This is a hot topic.  Judge Weinstein issued a ruling in late July and Tony Sebok blogged about the decision at New Private Law.  Now, in recent postings to SSRN, Ronen Avraham and Alberto Bernabe take up the topic.
Under traditional law and economics analysis, it is deemed efficient to target individuals and communities based on race and gender when doing so results in the lowest tort liability for a rational actor.  This results in the targeting of low income minorities and women - a fact which law and scholars economics would stamp with analytical approval, but are likely embarrassed to admit.  Surprisingly, the basis for this targeting is the seemingly neutral use of race- and gender-based statistical tables (for example life expectancy or worklife expectancy) which, when used in tort damage calculations, result in a large disparity between damages awarded to whites versus blacks, and men versus women.  First, this paper provides a full account of courts' existing discriminatory practices, identifying both theoretical and actual examples of race and gender targeting. It then challenges the conventional wisdom that the use of race- and gender-based tables are justified on efficiency grounds, pointing out fatal flaws inherent in the tables, in how the tables are used in courts to calculate damages for individuals, and in the incentives they create.  Under the status-quo, tort law’s remedial damage scheme both perpetuates existing racial and gender inequalities and creates ex-ante incentives for potential tortfeasers to engage in future discriminatory harm (discriminatory targeting) towards women and minorities.  The paper then shows that similar discriminatory practices surprisingly and ironically exist in federal law such as the ADA and even Title VII. After discussing the legal and theoretical background, statistical shortcomings, and efficiency concerns associated with the use of race- and gender-based statistical tables, this paper proposes a feasible, low cost, and logical solution to save American courts as well as the law and economics movement from this great embarrassment, and push towards a more efficient, and fair tort law remedial system.
Bernabe's piece, Do Black Lives Matter?: Race as a Measure of Injury in Tort Law, has the following abstract:
Much of the current debate over race relations in the United States revolves around police brutality and legal injustice.  However, prior to the events that made the phrase “black lives matter” the signature message of a protest movement against racism in the American justice system, the nation’s media was captivated briefly by another legal question: whether a child’s race should be used as a measure of injury to the child’s parents as part of a torts claim based on the “wrongful birth” of the child.  Unfortunately, once the attention turned to the events that prompted the protests and the debate that has developed since, the discussion about whether someone’s racial identity could be used as a measure of injury faded.

Yet, the issues raised by the case are too interesting and important to be relegated to the background of the debate.  The case not only offers the opportunity to discuss the issue of using race as an element in a tort law claim, it also poses interesting questions about the extent to which modern reproductive technologies change the way we think about injuries for purposes of tort law. 

Obviously, there have been many wrongful birth and wrongful pregnancy cases in the past, but this one is different.  Because the mother wanted to have a child and because the child was not born with a disability, the basis of the complaint is that the child’s race should be considered to be an injury to her and that the child’s existence should be considered to be an injury to the mother.  If we are ready to recognize a claim in cases where the child is born with a condition that could have been avoided had the defendant not been negligent, should we also recognize a claim if the child turns out to have different physical traits than planned, or expected?
Martha Chamallas and Jenny Wriggins, who have focused on this topic for years, must be smiling.

Monday, August 24, 2015

Analysis Finds Higher Expulsion Rates for Black Students - The New York Times

Are Black kids bad? White kids? Are there any remedies courts can afford in this situation?  Is federal administrative effort the only available remedy?    Is it overkill? - gwc

Analysis Finds Higher Expulsion Rates for Black Students - The New York Times

by Motoko Rich

With the Obama administration focused on reducing the number of suspensions, expulsions and arrests in public schools, a new analysis of federal data identifies districts in 13 Southern states where black students are suspended or expelled at rates overwhelmingly higher than white children.
The analysis, which will be formally released Tuesday by the Graduate School of Education at the University of Pennsylvania, focused on states where more than half of all the suspensions and expulsions of black students nationwide occurred. While black students represented just under a quarter of public school students in these states, they made up nearly half of all suspensions and expulsions.
In some districts, the gaps were even more striking: in 132 Southern school districts, for example, black students were suspended at rates five times their representation in the student population, or higher.

In recent years, civil rights groups such as the Advancement Project and legal advocacy organizations including the NAACP Legal Defense and Educational Fund Inc. and Texas Appleseed have focused on reducing arrests and other severe disciplinary actions in schools.
Last year, the Obama administration issued guidelinesadvising schools to create more positive climates, set clear expectations and consequences for students, and ensure equity in discipline.

Doubling Down on Racial Discrimination: The Racially Disparate Impacts of Crimmigration Law | Casetext

Doubling Down on Racial Discrimination: The Racially Disparate Impacts of Crimmigration Law | Casetext

by Kevin Johnson (Dean, UC Davis Law School)

The U.S. immigration removal system targets noncitizens who are involved in criminal activity.  Relying on state and local police action, which many claim is racially biased due to such practices as racial profiling, the U.S. government removes nearly 400,000 noncitizens a year, with more than 95 percent from Mexico and Latin America (even though the overall immigrant population is much more diverse).  State and local governments have resisted some of the federal government’s aggressive removal efforts through “sanctuary laws,” which are designed to build the trust in immigrant communities necessary for effective law enforcement by local police.  Reforms in the immigration laws are necessary to reduce the racially disparate impacts of reliance on the criminal justice system for immigration removals. 

The Modern Immigration Removal System

The Obama administration’s signature immigration enforcement program, Secure Communities, proved to be highly efficient at facilitating removals of large numbers of noncitizens, including lawful permanent residents as well as undocumented immigrants, arrested for minor, as well as more serious, crimes.  Indeed, the program was so effective that removals spiked to record highs in the neighborhood of 400,000 noncitizens a year.  
Total removals of noncitizens by the U.S. government reached an all-time high of 438,421 in 2013:  “Mexican nationals accounted for 72% of all aliens removed in 2013.  The next leading countries were Guatemala (11 percent), Honduras (8.3 percent), and El Salvador (4.7 percent).  These four countries accounted for 96 percent of all removals in 2012.” Dep’t of Homeland Security, Office of Immigration Statistics, Immigration Enforcement Actions:  2013, at 6 (Sept. 2014) (emphasis added). From 2003-13, men accounted for 91% of all deportees.  These statistics are consistent with an immigration removal system that relies primarily on the criminal justice system and its racial profiling of Latino males by state and local police.
Simultaneous with ending Secure Communities, the Obama Administration announced the creation of the “Priority Enforcement Program” (PEP) with the stated intent of re-focusing removal efforts on serious criminal offenders; PEP changed federal policy to restrict requests for immigration “holds” to noncitizens actually convicted of crimes rather than merely arrested for them.  Memorandum dated November 20, 2014 to Thomas S. Winkowski, Acting Director, U.S. Immigration and Customs Enforcement, Megan Mack, Officer Office of Civil Rights and Civil Liberties, Philip A. McNamara, Assistant Secretary for Intergovernmental Affairs, from Jeh Charles Johnson, Secretary, U.S. Department of Homeland Security, at 2-3 PEP continues to target “criminal aliens” for removal.
One commentator aptly summarized contemporary developments in American immigration enforcement as in effect creating “a criminal removal system.”  Ingrid V. Eagly, Criminal Justice for Noncitizens:  An Analysis of Variation in Local Enforcement, 88 NYU L. Rev. 1126, 1128 (2013). Police in traffic stops and other law enforcement activities rely on race.  And, because immigration enforcement today relies increasingly on state and local criminal arrests, removals have fallen overwhelmingly on Latina/o immigrants. 

Palestinian Authority Is Ordered to Post $10 Million Bond in Terror Case - The New York Times

In Sokolow, et al. v. Palestine Liberation Authority, et al. ( 1:04-cv-00397 SDNY) U.S. District Judge George Daniels has ordered the Palestinian Authority to post a $10 million appeal bond, together with another $1 milllion/month.  The amount is relatively small - given the $655 million verdict on appeal.  The trial judge has given consideration to the concerns of the United States.  Deputy Secretary of State Anthony Blinken in an affidavit  underscored the "vital" security and diplomatic interests of the United States in the viability of the Palestine National Authority, to which we have given "billions" of dollars in aid and which is in "crisis".  - gwc
Palestinian Authority Is Ordered to Post $10 Million Bond in Terror Case - The New York Times

by Benjamin Weiser

In a widely watched terrorism lawsuit that drew the attention of the Obama administration, a federal judge in Manhattan ruled on Monday that the Palestinian Authority would have to post $10 million and an additional $1 million monthly to appeal a huge damages award for its role in six terrorist attacks in Israel that had killed and injured Americans.
The bond amount was much lower than lawyers for the victims had sought and matched the amount that lawyers for the Palestinian Authority said in court on Monday that the defendants could pay.
Just two weeks ago, the Obama administration weighed inon the case, expressing concern in a submission to the judge that requiring too high a bond could cause economic and political harm to the Palestinian Authority and the broader peace process.

The Palestinian Authority and the Palestine Liberation Organization in February were found liable in the attacks, which occurred between 2002 and 2004, after a lengthy civil trial brought under an antiterrorism law that provided for a tripling of the jury’s damages award of $218.5 million, for a total of $655.5 million.
Read more

GM ignition switch defects tied to 124 deaths, 275 injuries, Feinberg claim review finds

When the scandal blew open defective ignition slip claims against the automaker were barred by the statute of limitations, and the discharge in bankruptcy of all claims against "old GM".  Some, of course were settled confidentially.  The sorry affair was described in the Valukas report prepared by the Jenner & Block law firm for GM. - gwc

GM ignition switch defects tied to 124 deaths, 275 injuries, Feinberg claim review finds

by Nora Naughton // Crain's Automotive News

Attorney Kenneth Feinberg’s office has completed its review of all 4,000-plus compensation claims related to General Motors’ faulty ignition switches.

The switches, which prompted the recall of more than 2.6 million vehicles last year, now have beenlinked to 124 deaths and 275 injuries, 17 of which were serious.

GM hired Feinberg last year to independently compensate the victims of crashes caused by the defective switches, which can be jostled out of the “run” position by a knee or heavy key chain, cutting power to the engine and power steering.

A representative from Feinberg’s office was not immediately available for comment.

GM has set aside $625 million to pay victims. Death claims are eligible for a $1 million payout for the person who died and $300,000 each for a surviving spouse and any dependents.

Of the 275 injury claims approved by Feinberg’s office, 258 were for minor injuries, which required hospitalization or outpatient treatment within 48 hours of the accident. The remaining 17 injuries were serious, resulting in quadriplegia, paraplegia, double amputation, permanent brain damage or pervasive burns.

The payouts for victims of severe injuries vary and even can exceed those of death claims. Minor-injury claimants are eligible for payments from $20,000 to $500,000, depending on the length of hospital stay.

Of the 4,343 total claims received by Feinberg’s office, 3,944 -- roughly 90 percent -- were found ineligible.

Sunday, August 23, 2015

Unconscionability Survives SCOTUS Rulings // CL&P Blog Public Citizen

A Pair of Arbitration Papers (CL&P Blog) (Public Citizen Litigation Group)

States have long relied on the doctrines of unconscionability and public policy to protect individuals against unfair terms in mandatory arbitration provisions. The Supreme Court recently struck a blow to such efforts in AT&T Mobility LLC v. Concepcion and American Express Co. v. Italian Colors Restaurant. In those two cases, the Court established that a challenge to the enforceability of unfairly one-sided arbitration clauses is preempted if it would interfere with “fundamental attributes of arbitration.” Several commentators have argued that these decisions will dramatically alter the arbitration landscape, by wiping away virtually any contract defense to the validity of an arbitration agreement and giving corporations carte blanche to impose whatever terms they want into an arbitration clause. Many practitioners are aggressively pushing courts to take a similarly broad reading of Concepcion and Italian Colors.

This article takes a contrary view. First, this article argues that the cases will have very little impact outside of the context of class action waivers, the subject matter of both Concepcion and Italian Colors. Applying state law to strike down arbitration provisions that are so one-sided as to be unconscionable ordinarily will not interfere with “fundamental attributes of arbitration” and should not be preempted.

Second, the Court’s newfound focus on “fundamental attributes of arbitration” reveals why Concepcion should actually narrow the scope of Federal Arbitration Act (FAA) preemption rather than expand it. A careful examination of arbitration clauses shows that, if anything, the “fundamental” aspect of arbitration is choice, that is, the ability of parties to freely negotiate the terms of their arbitration agreements in an arms-length fashion. If choice is fundamental to arbitration, then what is inconsistent with arbitration is a lack of choice, namely adhesion. As a result, states have much greater power than previously thought to ensure fairness in standard-form, non-negotiable adhesion contracts, in which most arbitration agreements are contained, without violating the FAA.

Ohio Ethics Board Says Judges May Not Refuse to Perform Same Sex Marriages

OTHERWISE: Ohio Ethics Board Says Judges May Not Refuse to Perform Same Sex Marriages

Friday, August 21, 2015

NFL Concussion Litigation: Brain Injury Association of America Files Amicus Brief With Third Circuit Court of Appeals: New York Brain Injury Lawyer - New York Brain Injury Attorney

NFL Concussion Litigation: Brain Injury Association of America Files Amicus Brief With Third Circuit Court of Appeals:  

DeCaro & Kaplen -Attoneys at Law

NFL Concussion Litigation: Brain Injury Association of America Files Amicus Brief With Third Circuit Court of Appeals

by Michael V. Kaplen, Esq.

My partner, Shana De Caro and I are honored to have submitted an amicus brief on behalf of the Brain Injury Association of America (BIAA) to the United States Third Circuit Court of Appeals in the NFL concussion litigation explaining the science of Traumatic Brain Injury (TBI) and the misconceptions inherent and relied upon by the District Court in the settlement agreement.

We hope that the information and authorities we have provided will assist the Court in reexamining the settlement terms in proper context and set the agreement aside in the interest of all retired NFL football players who have sustained brain injury.

Founded in 1980, the Brain Injury Association of America (BIAA) is the oldest, largest, non-profit, nationwide brain injury, advocacy organization. As the leading advocate for all victims of brain injuries, BIAA has an interest in ensuring this settlement fairly considers all brain-injured players for whose benefit this action was commenced. BIAA seeks to provide the Court with unbiased, accurate information regarding consequences of traumatic brain injury and protect the integrity of traumatic brain injury scientific research.

From the amicus brief submitted on behalf of the Brain Injury Association of America:

“The settlement neither recognizes nor compensates the majority of players suffering long-term consequences of brain trauma, but merely rewards certain, small, discrete groups. The vast majority of retired football players experiencing physical, emotional, and behavioral impairments following repetitive concussions remain excluded and uncompensated under settlement terms. In the interest of expediency, the District Court relied on self-serving submissions of counsel, which unjustifiably categorized the vast majority of brain injuries as not being “serious” or unrelated to repetitive head trauma, ignoring the overwhelming scientific consensus regarding the causes and ramifications of traumatic brain injury.”

“The settlement, as approved by the District Court, is faulty in many respects, including but not limited to : 1- failure to consider subtle differences and distinctions of developing brain damage not immediately apparent; 2- omission of mild brain injury; 3- failure to compensate recognized physical, behavioral, emotional, and cognitive sequelae of concussion; 4- exclusion of well-recognized categories of presumptive brain injury; 5- failure to provide meaningful benefits for cognitive impairment; 6- arbitrary compensation distinctions based upon years of play and age; 7- implicit disregard of overwhelming medical evidence that one concussion can precipitate life-long consequences; 8- an illusory benefit failing to account for required Medicare and Medicaid lien offsets; 9- insurmountable neuropsychological testing criteria; 10- ignoring physical, emotional, and behavioral impairment undetectable by the settlement’s testing protocol; 11- overemphasis on malingering tests; and 12- failure to consider alternate testing modalities, such as diagnostic imaging.”