Wednesday, September 30, 2015

So the Pope Met Kim Davis // Rick Garnett // Mirror of Justice

 The Pope Met Kim Davis // Mirror of Justice

by Rick Garnett // Notre Dame Law School

***Like Rob Vischer (read his piece here), I think the Kim Davis case presents some tricky questions.  It is not as clear to me as it is to some that she can, in this moment, expect to be exempted from performing duties that attach to her elected, official position.  (This is not to say that it does not make sense to find ways -- as Robin Fretwell Wilson and others have described -- to accommodate, if possible, public employees' religious objections to participating in the legal recognition of same-sex marriages, if it can be done in a way that does not deny anyone legal rights.)  At the same time, I think Matt Bowman is clearly right to warn that those who control the power to define what "doing your job" means (or to control access to various positions and professions through licensing, accreditation, etc.) will be trying to use that power in the coming years against, say, pro-life doctors and nurses, or judges who belong to "discriminatory" organizations, or student groups and religious colleges with "discriminatory" views, practices,  or mission statements, etc.  Stay tuned.

9th Circuit Affirms, Modifies NCAA Anti-trust Ruling in O'Bannon Case

In O'Bannon v. NCAA the U.S. Court of Appeals for the 9th Circuit has affirmed the District Court finding that  the NCAA has violated anti-trust laws.  The court writes:
Section 1 of the Sherman Antitrust Act of 1890, 15 U.S.C. § 1, prohibits “[e]very contract, combination . . . , or conspiracy, in restraint of trade or commerce.” For more than a century, the National Collegiate Athletic Association (NCAA) has prescribed rules governing the eligibility of athletes at its more than 1,000 member colleges and universities. Those rules prohibit student-athletes from being paid for the use of their names, images, and likenesses (NILs). 
But the panel limited the remedy, saying that
"the district court identified one proper less restrictive alternative to the current NCAA rules¯i.e., allowing NCAA member to give scholarships up to the full cost of attendance¯but the district court’s other remedy, allowing students to be paid cash compensation of up to $5,000 per year, was erroneous. The panel vacated the district court’s judgment and permanent injunction insofar as they required the NCAA to allow its member schools to pay student-athletes up to $5,000 per year in deferred compensation."
- gwc

Saturday, September 26, 2015

Experts say ethicon did not disclose dangers

Friday, September 25, 2015

PrawfsBlawg: Justice and fairness v. procedure

Prof. Howard Wasserman points out that Judge Bunning has overreached in his order to Kim Davisto process all qualifying marriage license applicants.He has got individual plaintiffs before him.  If he wants to broaden the order he should certify a class under FRCvP 23. - gwc

PrawfsBlawg: Justice and fairness v. procedure


Thursday, September 24, 2015

F.D.A. Panel Weighs Complaints on Essure Contraceptive Implant - The New York Times

F.D.A. Panel Weighs Complaints on Essure Contraceptive Implant - The New York Times

SILVER SPRING, Md. — A panel of experts convened by the Food and Drug Administration weighed the evidence Thursday on a contraceptive device that has received thousands of complaints from women who say they were harmed by it.
The device, called Essure, is a small metal and polyester coil implanted into a woman’s fallopian tubes to make her permanently sterile. The F.D.A. approved Essure 13 years ago after a fast-track review process that prioritized the device because it offered the first alternative to surgical sterilization and promised a quick recovery.
But since then, allegations that the device has caused severe pain, perforations of fallopian tubes and possibly even death, and that it has failed to prevent pregnancy in some cases, have accumulated, and the agency decided to hold a daylong public meeting at its headquarters on Thursday to talk about them.

The large auditorium was unusually full, and the ordinarily dry scientific discussion was punctuated with emotional testimony by women who gave accounts of their experiences with Essure. Many spoke of health problems that surfaced after the device was implanted, and of odysseys through the health care system in search of diagnoses.
The panel of experts, which included gynecologists, obstetricians and other specialists, is not expected to vote on questions that would lead to action on the part of the agency, but the exercise will inform the agency’s view on the device as its tale continues to unfold.
Keep reading
The device’s producer, Bayer HealthCare Pharmaceuticals, stands by it, saying its safety “is supported by more than a decade of science, with more than 10,000 women studied.” The company estimates that a million Essure devices have been distributed around the world, most of them in the United States.

Wednesday, September 23, 2015

Race and Class Collide in a Plan for Two Brooklyn Schools - The New York Times

Race and Class Collide in a Plan for Two Brooklyn Schools - The New York Times

by Kate Taylor

At Public School 8 in Brooklyn Heights, the auditorium’s stage is crowded with music stands that were stored there when the music room had to be turned into a first-grade classroom.
The prekindergarten program was cut because of lack of space. And with the school operating far above capacity, 50 families who live within its zone — which also includes Dumbo and much of another Brooklyn neighborhood, Vinegar Hill — were placed on a waiting list for kindergarten last spring.
To the city, the solution for the overcrowding at P.S. 8 seemed obvious: move those two neighborhoods from P.S. 8’s zone and into that of P.S. 307, which is nearby and has room to spare. The proposal, however, has drawn intense opposition, and not only from the families who would be rezoned from the predominantly white P.S. 8 to the mostly black P.S. 307. Some residents of the housing project served by P.S. 307 also oppose the rezoning, worried about how an influx of wealthy, mostly white families could change their school.
For all its diversity, New York City, by some measures, hasone of the most segregated school systems in the country, in part because many elementary schools are effectively closed off to children who live outside their zones. And although the Brooklyn rezoning is mainly a response to crowding, it is becoming a real-life study in the challenges of integrating just one of the city’s schools.
It is also, perhaps, an unavoidable result of the gentrification in its part of Brooklyn. For many years, the area that came to be named Dumbo, for Down Under the Manhattan Bridge Overpass, was a decaying industrial district with relatively few families.
Keep reading

Monday, September 21, 2015

J&J Faces Pelvic Mesh Liability Trial in Dallas // Law 360

J&J Pelvic Device Gets 1st Court Test In Dallas Trial - Law360

Law360, Dallas (September 18, 2015, 7:51 PM ET) -- A pelvic mesh device made byJohnson & Johnson’s Ethicon Inc. unit to treat pelvic organ prolapse will get its first courtroom test on Monday, as Dallas jurors are set to hear a trial alleging the Gynecare Prosima Pelvic Floor Repair System was defectively designed.

The case is a rematch of sorts for the plaintiffs’ lawyers and J&J after an April 2014 trial before the same Dallas district court judge ended in a $1.2 million verdict and a finding Ethicon’s TVT-O pelvic mesh device had been defectively designed.

Most of the litigation involving Ethicon's pelvic mesh products, including the handful of cases that have previously reached trial, focused on the TVT family of devices, used to treat stress urinary incontinence. The Prosima is a treatment for pelvic organ prolapse, which occurs when the supportive muscles and tissues of the pelvis become weak and causes the organs inside the pelvis to drop from their natural positions.

The suit claims the Prosima device was unreasonably dangerous, not reasonably safe for its intended use and that alternative and safer devices were available. The suit also claims J&J and Ethicon failed to warn patients of the dangers and risk associated with the pelvic mesh products.

Here, Law360 takes a look at what’s at issue in the suit and reviews J&J’s history of wins and losses in pelvic mesh cases around the country.

Saturday, September 19, 2015

Don't be surprised if Kim Davis is remanded to the custody of the federal marshal . . . again //Marty Lederman//Balkinization

Kentucky County Clerk Kim Davis demanded her deputies return all marriage license forms. She prescribed new forms which mention neither her name, her office, nor the facts. gwc

Balkinization: Don't be surprised if Kim Davis is remanded to the custody of the federal marshal . . . again

by Marty Lederman

Just over a week ago, on September 11, Judge Bunning issued the following order when he released Kim Davis from federal custody:

"Defendant Davis shall not interfere in any way, directly or indirectly, with the efforts of her deputy clerks to issue marriage licenses to all legally eligible couples. If Defendant Davis should interfere in any way with their issuance, that will be considered a violation of this Order and appropriate sanctions will be considered."

When Davis returned to work as Rowan County Clerk three days later, on Monday, September 14, she ordered Deputy Clerk Brian Mason to change the form of marriage licenses that he issues in Rowan County. The first such license Mason issued on Monday, for example, reads: "Issued this 9/14/2015, Pursuant to Federal Court Order No. 15-CY-44, DLB, Morehead, Kentucky by Brian Mason [signature initials "BM"], Notary Public."

Friday, September 18, 2015

Libertarianism's Iron Cage | Commonweal Magazine

Arguing with a libertarian is a fruitless proposition.  It's a closed circle.  There's an answer for everything.  Reason is the asserted core but there is more to humanity than reason - but not to libertarian ideology.  Alan Wolfe develops the argument. - gwc

Libertarianism's Iron Cage | Commonweal Magazine

by Alan Wolfe

Libertarianism... is not just a set of policy prescriptions, but an ideology. It is, moreover, atotal ideology, one that addresses every aspect of how people live. There is a libertarian way of riding a bicycle, of taking your medicine, finding a spouse, giving blood, and even calling a cab (can you say, “Uber?”). Where liberalism raises questions, libertarians seek answers, and always find the right ones. Their philosophy is an antidote to the doubt, inconsistency, and vagueness that has always been built into liberalism. Libertarians come in different forms, and can argue vehemently over concepts and applications. Yet there nonetheless does exist a general libertarian outlook on life—and it is very different from the liberal one.

Thursday, September 17, 2015

FDA stops sale of four R.J. Reynolds Tobacco Company cigarette products

Exercising its authority to regulated cigarettes the FDA has barred slae of four new RJ Reynolds products.  There is a 30 day delay in enforcement action.  Violations may be reported online.
Press Announcements > FDA issues orders that will stop further U.S. sale and distribution of four R.J. Reynolds Tobacco Company cigarette products

Today the U.S. Food and Drug Administration issued orders that will stop the further sale and distribution of four currently marketed R.J. Reynolds Tobacco Company cigarette products – including its Camel Crush Bold brand – because the company’s submissions for these products did not meet requirements set forth in the Federal Food, Drug, and Cosmetic Act (FD&C Act).

The FDA’s evaluation found that Camel Crush Bold, Pall Mall Deep Set Recessed Filter, Pall Mall Deep Set Recessed Filter Menthol and Vantage Tech 13 cigarettes were not substantially equivalent (NSE) to their respective “predicate” products (i.e., products that were commercially marketed as of Feb. 15, 2007) as identified by the manufacturer. More specifically, the agency concluded the products have different characteristics than the predicate products and that the manufacturer failed to show that the new products do not raise different questions of public health when compared to them. Consequently, at this time, these products can no longer be sold, distributed, imported or marketed in interstate commerce.

“These decisions were based on a rigorous, science-based review designed to protect the public from the harms caused by tobacco use,” said Mitch Zeller, J.D., director of the FDA’s Center for Tobacco Products. “The agency will continue to review product submissions and exercise its legal authority and consumer protection duty to remove products from the market when they fail to meet the public health bar set forth under law.”

The products receiving NSE orders entered the market during a provisional period established by the Family Smoking Prevention and Tobacco Control Act of 2009. As part of the provisional period, the company had to submit a substantial equivalence (SE) application to the FDA by March 22, 2011, in order for the products to remain on the market. The FDA reviews product submissions under this pathway to determine whether the product is substantially equivalent to a valid predicate product. Among other reasons, if a company fails to provide the necessary information to show that its product is substantially equivalent to a valid predicate product, the FDA has the authority to find a product not substantially equivalent.

The scientific basis for these four decisions include a failure to demonstrate that increased yields of harmful or potentially harmful constituents, higher levels of menthol, and/or the addition of new ingredients in the currently marketed products –when compared to the predicate products – do not raise different questions of public health.

In the case of Camel Crush Bold, a failure to demonstrate that the addition of a menthol capsule in the filter did not affect consumer perception and use also contributed to the decision.

When the FDA issues an NSE order, the tobacco product in inventory, including at a retail location, becomes adulterated and misbranded. As a result, it is illegal to sell or distribute the product in interstate commerce, or sell or distribute the product received from interstate commerce. Doing so may result in the FDA initiating enforcement action, including seizure, without further notice.

FDA in the Twenty-First Century: The Challenges of Regulating Drugs and New Technologies by Holly Fernandez Lynch, I. Glenn Cohen :: SSRN

Introduction to: FDA in the Twenty-First Century: The Challenges of Regulating Drugs and New Technologies by Holly Fernandez Lynch, I. Glenn Cohen :: SSRN


In its decades-long effort to assure the safety, efficacy, and security of medicines and other products, the Food and Drug Administration has struggled with issues of funding, proper associations with industry, and the balance between consumer choice and consumer protection. Today, these challenges are compounded by the pressures of globalization, the introduction of novel technologies, and fast-evolving threats to public health. This paper is the introduction to a book of essays by leading scholars and government and private industry experts, FDA in the Twenty-First Century addresses perennial and new problems and the improvements the agency can make to better serve the public good.

It discusses effective regulation in an era of globalization, consumer empowerment, and comparative effectiveness, as well as questions of data transparency, conflicts of interest, industry responsibility, and innovation policy, all with an emphasis on pharmaceuticals. It also intervenes in the debate over off-label drug marketing and the proper role of the FDA before and after a drug goes on the market. Dealing honestly and thoroughly with the FDA's successes and failures, contributors rethink the structure, function, and future of the agency and the effect policy innovations may have on regulatory institutions in other countries.

GM agrees to $900 million criminal settlement over ignition-switch defect

General Motors - whose cultural of evasion of responsibility was explored by the `Valukas report' it commissioned to the law firm Jenner & Block - has taken  three steps to resolve its problems. It has reportedly reached a settlement with the Department of Justice - avoiding prosecution; settled the shareholders action arising from its concealment of the now notorious ignition switch defects; and settled about half of the personal injury litigation managed in the MDL known as In Re General Motors Ignition Switch Litigation. - gwc

GM agrees to $900 million criminal settlement over ignition-switch defect

by NathanBomey // USA Today

General Motors agreed to pay $900 million and accept two criminal charges to resolve a Justice Department investigation into its handling of a deadly ignition-switch blamed for more than 120 deaths.

Federal prosecutors said in a court filing Thursday that GM had agreed to accept a wire-fraud charge and a charge for "engaging in a scheme to conceal a deadly safety defect" from regulators.

GM engineers, attorneys and mid-level executives failed to fix the defect for more than a decade. As part of the settlement, GM admitted to having defrauded customers by marketing its vehicles as safe during that period.

Separately, GM reached a deal to extend settlement offers to up to 1,385 additional victims of its deadly ignition-switch defect. GM also confirmed that it has settled a shareholder lawsuit over its handling of the matter — with the two deals collectively accounting for a $575 million charge on its third-quarter earnings.

U.S. prosecutors are expected to discuss their settlement with GM in a noon press conference in New York. GM CEO Mary Barra and product chief Mark Reuss plan to address the matter in a town hall with employees at 2 p.m.

No individual GM employees will be prosecuted, though prosecutors noted in the settlement documents that GM had fired "wrongdoers."

Barra, who did not know about the defect until days before it was publicly disclosed in February 2014, dismissed about 15 employees after an internal investigation blamed those workers for failing to disclose or fix the deadly flaw.

She apologized to the public and authorized a settlement fund for victims. Before Thursday's deal with additional victims, the automaker had already agreed to offer settlements for families of 124 people who were killed and 275 who were injured.

Those deals were offered through an independently administered settlement fund established last year with a deadline for victims interested in compensation and willing to relinquish their rights to sue.

People who opted to sue GM instead of taking the deal may get compensated as part of the settlement announced Thursday by Texas attorney Bob Hilliard, who was appointed by a federal judge to negotiate with the automaker on behalf of individual plaintiffs.

Lauren Gomez, a spokeswoman for Hilliard, said in an email that another 370 potential injury victims and families of another 84 potential victims who were killed are not part of the deal. Hilliard will continue to pursue lawsuits in those cases.

It was not immediately clear how many of the 1,385 additional plaintiffs who may qualify for settlements are tied to fatal cases or injury crashes. GM spokesman Pat Morrissey said he could not disclose that information.

GM said the plaintiffs, which it said numbered 1,380, represent more than half of the personal-injury lawsuits it faces.

Wednesday, September 16, 2015

Slavery was not a national institution / /Sean Wilentz // NY Times

A couple days ago Senator Sanders spoke at Liberty University - a school founded by Rev. Jerry Falwell - a segregationist who learned to temper his views and founded the insufferably named organization The Moral Majority. Sanders was reported to have said that this country was "founded on racist principles".  Well...not quite - this country was founded on a deplorable compromise, not an open embrace of racist principles.  Lincoln thus was able to draw on the Declaration of independence to defend the union.   Princeton historian Sean Wilentz amplifies the point well. - gwc
Constitutionally, Slavery Is No National Institution - The New York Times
by SeanWilentz

Far from a proslavery compact of “racist principles,” the Constitution was based on a repudiation of the idea of a nation dedicated to the proposition of property in humans. Without that antislavery outcome in 1787, slavery would not have reached “ultimate extinction” in 1865....
Keep reading

Monday, September 14, 2015

U.S. Navy finally agrees to ease off sonar that’s deadly to whales and dolphins

U.S. Navy finally agrees to ease off sonar that’s deadly to whales and dolphins

by Brian Palmer // Natural Resources Defense Council

Scientists often say that whales and dolphins see with their ears, mapping out their vast, dark underwater environment with an exquisite sensitivity to sound. And for many years now, the growing amount of manmade noise in the ocean has been blinding them.
One particularly devastating source of that noise is used by naval vessels to detect submarines and other objects beneath the surface. The intense, high-volume, and far-ranging sound waves blasted by active sonar are traumatic for marine mammals, and evidence has been mounting for more than a decade that they pose an existential threat to many species.
Since the mid-1990s, NRDC (disclosure) and partner conservation groups have pushed the U.S. Navy to deploy its sonar systems and conduct training exercises in ways that will reduce their impact on whales and dolphins, winning a series of court battles stretching back to 2003 (and going all the way to Supreme Court).
Over the weekend, NRDC and the U.S. Navy finally reached a federal court agreement regarding one of those long-runng fights—in the whales’ favor. As a result of the settlement deal, the navy will silence its sonar in areas around Southern California and Hawaii during certain periods of the year when marine mammal populations are most vulnerable. The agreement, signed off on by the judge today, runs until the end of 2018, when the U.S. National Marine Fisheries Service is scheduled to issue new environmental impact statements and authorizations regarding military exercises in sensitive waters.
Advocates hope the win represents a turning point in the military's view that marine mammals are acceptable collateral damage in its training exercises.
Mass strandings are the most visible effect of active sonar on wildlife, and they often coincide with nearby naval deployments. In 2000, for example, 17 whales swam themselves aground in the Bahamas. A government investigation, published more than a year later, concluded that the most likely explanation was mid-frequency sonar emitted by the navy. The sonar caused “some sort of acoustic or impulse trauma” that drove the whales ashore, killing them.

Sunday, September 13, 2015

Teaching slavery to reluctant listeners

Teaching Slavery to Reluctant Listeners 
by Edward E. Baptist

One thing is certain as I prepare to teach another course on U.S. history. Invariably, at least one student evaluation will complain that ‘‘Professor Baptist only talks about slavery.’’ It’s an annual reminder that while I’ve been trying to teach the history of slavery for two decades in American classrooms, America has tried to evade thinking about that history for far longer. Twenty-­four decades have passed since the Continental Congress deleted Thomas Jefferson’s criticisms of slavery from his first draft of the Declaration of Independence, and college students today arrive knowing little about the way America’s history of slavery has shaped their lives. Avoidance of the topic is deeply ingrained.
When I was at the University of Pennsylvania in the ’90s, the campus environment felt as if a bubbling bowl of white resentment were spilling over mostly black West Philadelphia. This was the era in which public intellectuals seriously discussed ‘‘The Bell Curve,’’ which argued that I.Q. tests proved African-­Americans were intellectually inferior. This kind of questioning — directly inherited from the history of white defenses of slavery — found its way into the Civil War history discussion I was leading. Two young white students complained that criticizing enslavers was modern-­day moralizing. Slaves, they said, might have actually been happy. They kept glancing at T., the class’s lone black student. I na├»vely thought that if I invited T. to speak up, he would find a way to shut the white students down. ‘‘T., do you want to respond?’’ I asked. As soon as the words left my mouth, I realized my mistake. T.’s face stiffened. ‘‘It’s not right to always look at one group of people to explain slavery,’’ he said firmly. T. didn’t speak again for the rest of the semester. Powerful forces were giving certain students the message that to protect their inherited privileges, they needed to dig in and resist confronting the facts of American history that had led to, for instance, a class in which there was only one black student.
Read more

NFL concussions: Health risk for players, PR disaster for league

NFL concussions: Health risk for players, PR disaster for league

September has been a rough month for the NFL.  On September 3, Tom Brady’s four-game suspension was completely vacated by Judge Richard Berman who, in the process, lambasted commissioner Roger Goodell for “dispensing his own brand of industrial justice.”
What could be more troubling for the NFL than being undermined in court, yet again? How about Concussion, a movie starring Will Smith that depicts Dr. Bennet Omalu’s discovery of chronic traumatic encephalopathy (CTE) in the brains of football players. While the movie isn’t due out until December, the trailer was released earlier this month.
Professional football is a violent sport and the longterm impact of that violence can be devastating to players. It has been linked to ALS, dementia, depression, cognitive impairment, and a spate of other troubling symptoms, the root of which is often CTE.
For now, CTE can only be diagnosed definitively after a player’s death since it involves examining brain tissue. Still, its impact is a very real presence among living players, many of whom have sued the NFL for damages related to the repeated blows to the head they sustained as professional athletes. Recent advances in medicine have also allowed players to receive a preliminary diagnosis while they are still alive.
In recent years, the NFL has tried to reduce the risk of head trauma to players by increasing in-game safeguards and developing protocols to prevent players with concussions from returning to the game. Is this too little too late? Considering the average pro football player sustains between 900 to 1500 blows to the headper season, it is hard to imagine the NFL’s efforts will actually preserve the health of this current generation of players.
Even more troubling: while the NFL is attempting to solve the concussion problem, their PR efforts have involved disseminating questionable information and silencing messengers who speak poorly of the league.
Let’s revisit some of the biggest missteps and concussion-related embarrassments in the NFL over the past few decades.

Saturday, September 12, 2015

Judges, Juries, and the Politics of Tort Reform by David Andrew Logan :: SSRN

 Former Roger Williams Law School Dean David Logan mounts something all too rare: an academic's defense of the jury system and a straightforward critique of the so-called "tort reform" movement.  - gwc

Judges, Juries, and the Politics of Tort Reform by David Andrew Logan :: SSRN


The civil justice system has many repeat players with a deep interest in the civil justice system because they are often the target of personal injury lawsuits, most prominently product manufacturers and physicians, and the companies that insure them. Following a blueprint drafted by leading corporate lawyer Lewis Powell, prior to his appointment to the Supreme Court of the United States, these deep pocket interests have spent four decades and tens of millions of dollars maligning the civil jury and trying, with notable success, to influence legislators, administrators, and judges, both state and federal, under the catchy, but misleading banner of “tort reform.” These campaigns have been amplified by media coverage of the civil justice system that has been unsophisticated, and at times misleading.

This article argues that separation of powers concerns counsel that we should be cautious about constricting the role of the jury, one of our most democratic institutions. Juries provide checks and balances on government; juries are independent; juries bring community values into the judicial system; juries are fair; juries legitimatize the civil justice system; and, juries generally “get it right.”

Instead of draconian reforms like damage caps, the article argues for the primacy of judges when adjustments to the civil justice system are called for. Judges bring legal experience and knowledge not shared by most legislators and administrators; the nature of the judicial process makes judges predictable and their work transparent; judges are far less likely to be “captured” by special interests than legislators and administrators; and state judges have the best perspective of how the civil justice system works and are thus in the best position to implement reforms when necessary.

The article concludes with a survey of various tools, some time-tested and others novel, by which judges can oversee the work of juries, and the civil justice system more generally.

Friday, September 11, 2015

Automakers Will Make Automatic Braking Systems Standard in New Cars - The New York Times

Automakers Will Make Automatic Braking Systems Standard in New Cars - The New York Times

by Bill Vlasic

DETROIT — Federal regulators said on Friday that 10 automakers had agreed to install automatic braking systems, which use sensors to detect potential collisions, as standard equipment in new vehicles.
But the automakers have not set a timetable for the introduction of the systems, and regulators may still seek government rules that would require the equipment as a standard feature in all cars and trucks — just as airbags were mandated a generation ago.
Anthony Foxx, the transportation secretary, said in a prepared statement that emergency braking technology could reduce traffic deaths and injuries.
“We are entering a new era of vehicle safety, focusing on preventing crashes from ever occurring, rather than just protecting occupants when crashes happen,” Mr. Foxx said.
Automatic emergency braking systems are meant to mitigate accidents, particularly rear-end crashes in which drivers fail to apply the brakes in time to avoid collisions.
The systems would be the latest in a long line of government efforts to cut the number of traffic fatalities in the United States, which fell about 25 percent from 2004 to 2013, to 32,719, according to the most recent government statistics.

Rakoff Says Brokers Should Face Trial Despite Insider Trading Ruling - Law Blog - WSJ

Rakoff Says Brokers Should Face Trial Despite Insider Trading Ruling - Law Blog - WSJ

December’s seismic insider-trading ruling by a Manhattan federal appeals court set a higher standard for proving the financial crime, potentially making it harder for prosecutors and regulators to win cases.
But it wasn’t enough to convince U.S. District Judge Jed Rakoff that two Wall Street brokers accused of insider trading shouldn’t face trial.
In a brief order issued Friday, Judge Rakoff said the earlier ruling by the Second U.S. Circuit Court of Appeals made the case brought by the Securities and Exchange Commission a “close call” but said the brokers should still be tried.
“[T]he Court takes cognizance of the fact that some of the issues the motion presents are a much closer call in light of United States v. Newman…than they would have been otherwise,” he wrote.
In the decision last year, the Second Circuit overturned two unrelated insider trading convictions, saying prosecutors based their case on insufficient evidence that stretched the limits of the law too far.
The two defendants in the case before Judge Rakoff are accused by the SEC of trading on tips about IBM Corp.’s acquisition of a software company in 2009. They argued in an August motion that the SEC clearly lacks evidence to back up its case, particularly in light of the Second Circuit’s narrower definition of insider trading.
While denying the defendants’ motion for summary judgment, Judge Rakoff later on Friday agreed to put off the trial while the Supreme Court considers whether to review the Second Circuit precedent.
As WSJ earlier reported, the Obama administration in July asked the Supreme Court to review United States v. Newman. In a petition, U.S. Solicitor General Donald Verrilli said the December decision clashed with long-standing precedent and had troubling implications for the government’s ability to police Wall Street.
The ruling is the latest instance of Judge Rakoff signaling unease with the Second Circuit holding.
In April, he allowed the same insider-trading lawsuit to proceed, saying the Second Circuit’s reading of past precedents governing insider-trading law “may not be obvious.” And this summer, when he was temporarily assigned to a federal appeals court in California, he expressed more skepticism with the Second Circuit’s interpretation of insider trading laws.

What Does Marriage Equality Have to Do with Dred Scott? - The New Yorker

 Annals of hyperbole. - gwc

What Does Marriage Equality Have to Do with Dred Scott? - The New Yorker

by Amy Davidson

"They can do same thing that Abraham Lincoln did about the Dred Scott decision of 1857,” Mike Huckabee, the former governor of Arkansas, said, speaking of what conservatives might do about Obergefell v. Hodges, the Supreme Court decision in favor of marriage equality. “He simply ignored the ruling and said, ‘That’s not correct.’ ” Huckabee wasn’t alone. Rick Santorum, who, like Huckabee, is running for President, said, “Just as they have in cases from Dred Scott to Plessy, the Court has an imperfect track record.” Penny Nance, the conservative activist,* wrote, “This case is about much more than marriage and will go down in history alongside other appalling Supreme Court rulings, like Dred Scott and Roe.” And Roy Moore, the chief justice of Alabama, said, “In the Dred Scott case the Supreme Court ruled that blacks were property, not citizens of the U.S…. Were they right? Of course not.”

The comparison to marriage equality seems odd and forced, yet Chief Justice John Roberts also made it, in his dissent to the Obergefell decision. And even he wasn’t the first: the alarm about a new Dred Scott has been heard, from activists like Ralph Reed and in the columns of the National Review, at least since the Windsor decision did away with the Defense of Marriage Act, two years ago. What is going on here? What does Dred Scott really have to do with Obergefell?

In part, Dred Scott is simply being used to give Obergefell a bad name—as pure invective, another way to call the decision rotten and the Supreme Court deluded. This is low enough; Dred Scott is a truly degraded decision, in a way that no other of the Court, conservative or liberal, has since matched. And, in part, the analogy reflects the notion, held by some contemporary conservatives, that they are now the “real” victims of bigotry. Roberts disparages the Obergefell decision, but he also does something more subtle. His argument is that both Obergefell and Dred Scott are the results of caring too much about “substantive due process.” Due process is the guarantee, made in the Fifth and Fourteenth Amendments, that a person can’t be deprived “of life, liberty, or property, without due process of law”; “substantive” means that this guarantee is more than formalistic (or “procedural”). In Roberts’s view, Justice Roger Taney’s opinion for the majority in the Scott case and Justice Anthony Kennedy’s in Obergefell are of the same ilk. In the first, the Court found that slave owners couldn’t be deprived of slaves; in the second, it found that gays and lesbians can’t be denied marriage—but both, to Roberts, are cases of due process gone wild.

Towering lights of 9/11 video

The Towering Lights of 9/11

 <iframe width="480" height="373" frameborder="0" scrolling="no" allowfullscreen="true" marginheight="0" marginwidth="0" id="nyt_video_player" title="New York Times Video - Embed Player" src=""></iframe>

Solving Miller v. Davis - Kevin Walsh - Mirror of Justice

Embedded image permalink
Kim Davis's response Rowan County Marriage License 
"issued pursuant to a federal court order"
Unlike some like  Catholic conservative Robert George who urges defiance of Obergefell v. Hodges, Prof. Kevin Walsh, a former Scalia law clerk, seeks a path to accommodation in the Rowan County, Kentucky confrontation.  I don't think that it is warranted to have a"different county clerk" sign a license if by that we mean the Clerk of another county.  
In my view the order to grant licenses should be addressed to Davis in her official capacity, directing that the Office of the Rowan County Clerk grant licenses to all who qualify.  If Davis refuses - she can again be held in contempt.  In that event the Deputy Clerks if permitted by Kentucky law, can issue the licenses.  If they refuse, or are not permitted to act by their superior, Judge Bunning can designate someone to issue licenses in Rowan County, charging the costs to the county.  Fed R CvP 70 (a). - gwc

Mirror of Justice

By Kevin C. Walsh
Different people have been dismayed by different aspects of the transition to same-sex marriage licensing in Rowan County, Kentucky. But just about everyone recognizes that there must have been, and still must be, a better way. So here's a shot at solving the case of Miller v. Davis
Here are the constraints/objectives: 
(1) Everyone who is eligible should be able to obtain a marriage license in Rowan County.
(2) Nobody should be forced to act in violation of his or her conscience.
(3) Nobody should act outside the law. 
This should not be terribly difficult. There is a statewide infrastructure in place for getting marriage licenses to eligible couples. Every county clerk's office has the same prescribed form. And any county clerk can issue a marriage license. That is, there is no requirement that a person obtain a license from the county where he or she lives. 
We also know from events on the ground that at least one deputy clerk in Rowan County is willing to accept license applications, fill out all the paperwork, and issue the licenses. According to the testimony at a preliminary injunction hearing, this process takes about five to seven minutes. 

Thursday, September 10, 2015

Tobacco Cos. Hit With $6M Verdict In Cancer Death Suit - Law360

Tobacco Cos. Hit With $6M Verdict In Cancer Death Suit - Law360

Law360, Los Angeles (September 10, 2015, 2:43 PM ET) -- A Florida jury on Thursday awarded $6 million in compensatory damages to the family of a smoker who died of lung cancer, also finding that R.J. Reynolds Tobacco Co. and Philip Morris USA Inc. hid the dangers of smoking and should pay punitive damages.

The jury's decision in St. Petersburg, Florida, found Philip Morris 37 percent responsible for Douglas Duignan's lung cancer and death. R.J. Reynolds bears 30 percent of the blame, and Duignan himself is 33 percent responsible, jurors found.

James Gustafson of Searcy Denney Scarola Barnhart & Shipley PAargues in the case Duignan v. R.J. Reynolds Tobacco Co. in Fort Lauderdale, Florida on Friday, Sept. 9, 2015. Video from the Courtroom View Network.

The verdict was far less than the $20 million in compensatory damages that the plaintiffs had asked for, but sets off a punitive phase of the trial that could force the tobacco companies to pay millions more.

During closing arguments earlier this week, the Duignan family's attorney, Gary Paige of Gordon & Doner PA, told jurors that Duignan's death in 1992 devastated his widow, Martha Duignan. She was a widow at age 39 and hasn't remarried, Paige said.

"To Martha, that was the love of her life," he said. "She had one love in her life and she loved him. ... It ruined Martha's life."

He urged jurors to award $12 million to Martha Duignan and $4 million to each of the couple's two children. He also urged jurors to find Philip Morris 60 percent responsible, R.J. Reynolds 30 percent responsible and Duignan himself 10 percent responsible. Paige also argued that the tobacco companies should face punitive damages.

Jurors ultimately awarded $4 million to Martha Duignan and $1 million to each of Duignan's children.

Philip Morris attorney Paul Ware of Goodwin Procter LLP told the jury during closing arguments that Duignan wasn’t fooled by their refusal to acknowledge cigarettes cause disease because he had long known smoking was dangerous, sometimes calling them "cancer sticks." In addition, they argued that his lung cancer may not have begun in his lungs.

Ware said Duignan’s relatives described him as a “man’s man” who did what he wanted.

“Are we really to believe that he could not even quit on a single occasion over the next 20 years for more than 48 hours?” he said.

R.J. Reynolds attorney Jack Williams of Jones Day said R.J. Reynolds made some bad decisions in the past, but punitive damages won't be necessary to discourage similar conduct in the future because it has already stopped.

Jack Williams of Jones Day argues in the case Duignan v. R.J. Reynolds Tobacco Co. in Fort Lauderdale, Florida on Friday, Sept. 9, 2015. Video from the Courtroom View Network.

The case is one of the thousands stemming from the landmark Engle class action against tobacco companies, which the Florida Supreme Court decertified in 2006.

Though the state high court decertified the class and overturned a $145 billion verdict, the court allowed up to 700,000 people who could have won judgments to rely on the jury's findings to file suits of their own. These findings include conclusions that smoking causes certain diseases and that tobacco companies hid smoking's dangers.

The plaintiffs are represented by Gary Paige of Gordon & Doner PA and James Gustafson of Searcy Denney Scarola Barnhart & Shipley PA.

Philip Morris is represented by Paul Ware of Goodwin Procter LLP.

R.J. Reynolds is represented by Jack Williams of Jones Day.

The case is Duignan v. R.J. Reynolds, case number 13-010978-CI, in the Sixth Judicial Circuit of Florida.

--Editing by Patricia K. Cole.

A Prescription for More Black Doctors - The New York Times

Xavier University - a historically Black Catholic college in New Orleans - is the number one producer of students who graduate and go on to careers as physicians and pharmacists. - gwc

A Prescription for More Black Doctors - The New York Times

Xavier University’s campus is mostly wedged between a canal and the Pontchartrain Expressway in Gert Town, a neighborhood in the western part of New Orleans. It has some 3,000 students and consistently produces more black students who apply to and then graduate from medical school than any other institution in the country. More than big state schools like Michigan or Florida. More than elite Ivies like Harvard and Yale. Xavier is also first in the nation in graduating black students with bachelor’s degrees in biology and physics. It is among the top four institutions graduating black pharmacists. It is third in the nation in black graduates who go on to earn doctorates in science and engineering.
Xavier has accomplished this without expansive, high-tech facilities — its entire science program is housed in a single complex. It has accomplished this while charging tuition that, at $19,800 a year, is considerably less than that of many private colleges and flagship public universities. It has accomplished this without filling its classrooms with the nation’s elite black students. Most of Xavier’s students are the first in their families to attend college, and more than half come from lower-­income homes.

GM, King & Spalding See Settlements As Well-Grounded Move - Law360

GM, King & Spalding See Settlements As Well-Grounded Move - Law360

Law360, New York (September 9, 2015, 9:56 PM ET) -- General Motors Co. and its outside counsel King & Spalding LLP argue that their swift settlements of ignition switch cases are grounded in deep-rooted traditions in American litigation, which defense attorneys agree pose tough hurdles for multidistrict litigation plaintiffs who claim such tactics helped conceal GM's ignition switch defect.

The plaintiffs in the litigation consolidated in New York federal court have lobbed controversial accusations at the automaker and King & Spalding, attempting to cast doubt on their motives for using confidential settlements to resolve at least three injury lawsuits before GM's recall in 2014 of more than 2.6 million vehicles.

The plaintiffs claim this tactic of settling cases before revelatory information could surface through the discovery process indicates that GM and its attorneys colluded to hide the defect. And they argue that such conduct justifies invoking the crime-fraud exception to break the attorney-client privilege that shields communications between GM and its attorneys about the three cases. 

But GM and King & Spalding argued Friday that settling claims to avert discovery doesn't suggest fraud and even more crucially, that such settlement strategies are enshrined in American litigation philosophy. GM argued that the plaintiffs were using "the very act of litigating" as purported evidence of fraud, while Thomas Morgan, a professor emeritus at George Washington University Law School, wrote as an expert for King & Spalding that the law firm's conduct "should be an occasion for applause, not condemnation." 

And defense attorneys believe that plaintiffs face an uphill struggle to show that King & Spalding's settlement strategy in these cases was at odds with deeply cherished protections for attorneys to candidly assess their clients' liabilities and offer ways to minimize them. 

"If I'm not hiding anything, but I try to settle, I haven't done anything wrong," said Aaron Jacoby of Arent Fox LLP. "It's not in the timing of when to settle, even though that timing might cause something to look suspicious, that doesn't mean [the plaintiffs] have found anything." 

The plaintiffs have asked to see communications between King & Spalding and GM on issues including settlement decisions relating to three cases, including one by the parents of 29-year-old Brooke Melton, whose death in her 2005 Chevy Cobalt led to plaintiffs attorney Lance Cooper's breakthrough discovery of the ignition switch defect.

In July, the plaintiffs claimed that King & Spalding falsely told the Georgia state court overseeing the Melton case that GM didn't have documents relating to other similar ignition switch lawsuits, even though the same King & Spalding attorney in that case was involved in other ignition switch suits. In one of those other suits, the law firm allegedly alerted GM that it could face punitive damages claims if information about other GM defect suits surfaced. 

"New GM’s and [King & Spalding's] goal was to prevent the Meltons from obtaining evidence of 'GM’s conscious indifference and willful misconduct when it comes to the safety of its vehicles’ occupants,'" the plaintiffs had said in that motion, referencing a July 2013 letter from King & Spalding partner Philip Holladay to a GM in-house attorney at the time. The letter is in the MDL case record but in a sealed exhibit. 

The Meltons' case settled in fall 2013 for $5 million, but Cooper later challenged that settlement, arguing that GM had negotiated it without being forthcoming on discovery requests. GM subsequently settled that dispute, too, for a confidential amount.