Wednesday, December 30, 2020

Racism is the temptation white people have yet to overcome | National Catholic Reporter

Racism is the temptation white people have yet to overcome | National Catholic Reporter
By Sr. Joan Chittister

Thirty cities, they say. Thirty cities. Thirty cities burned from coast to coast. You can hear the tsk-tsking everywhere. You can see the heads shaking with disgust, with frustration, with deep disapproval — with despair. You can see the looks of confusion and horror, of dismay and doubt. Why would something like this happen? Why George Floyd? Why Derek Chauvin? Why here, of all places? Here in the "land of the free" and the "home of the brave"?

There are reasons for all of this, of course, but we claim not to know them. When they finally force us to look our racism in the face, we call them "unfair." "There are better ways to call attention to your plight," we homilize them. But we don't tell them exactly what that is because we've never done it. 

As a result, the people we've kept down so they couldn't rise up, we condemn because they don't rise up. And so they did. 

Now, we're really unhappy about that. We had nothing to do with this racism thing, we say, and we're not going to apologize for something that happened centuries ago. 

But maybe we should think about that a little. After all, it's in our DNA. It's what we do. Generation after generation.

No, this generation didn't buy slaves to pick cotton. Instead, this generation underpaid them so they'd keep doing the servant work we don't want to do. Or we deny them decent places to live, making it all but impossible for them to get nice little brick homes, too. Or we elect a president who calls other races names and insults while the whole world looks on in horror as the mask of gentility drops from the face of a racist nation. Or we allow him to put their children in cages to show the world that we don't want "those kind of people" around us. 


No doubt about it. We've done our share of racism while we blame it on the racist generations that went before us. Maybe just apologizing for our own sins against a people would be a start.

As Mayor Sam Liccardo of San Jose, California, said on CNN May 30, " How are we going to step up around questions of racial equity from plaguing us really for centuries?" Indeed. It erupts and we put it down. And it erupts again. And we put it down ... again and again and again.

Monday, December 28, 2020

Limit on Religious Gatherings During COVID-19 Is Well Founded | New Jersey Law Journal

Limit on Religious Gatherings During COVID-19 Is Well Founded | New Jersey Law Journal
By the Editorial Board

Rev. Kevin Robinson, pastor of St. Anthony of Padua R.C. Church in North Caldwell, and Rabbi Knopfler of a small, 30-member Jewish congregation in Lakewood, sought a temporary restraining order or preliminary injunction against Gov. Philip Murphy’s executive orders limiting religious congregations. The governor seeks to stem the spread of the novel coronavirus sweeping the state, country, and world. Rejected at the district court and the Third Circuit the two clergymen petitioned the United States Supreme Court in an “emergency application for an injunction pending appellate review”.

The pastor and the rabbi complain that “[u]nder the New Jersey governor’s web of COVID-19 pandemic regulations, imposed solely by his will, houses of worship are strictly limited to the lesser of 25% of capacity or 150 people, but, strangely enough, never fewer than 10 people even if greater than 25% of capacity.” The minimum allowance of ten is an accommodation to Jewish tradition that requires ten men to form a minyan.

The clergymen complain that the state has imposed “less restrictive limits on secular activities that evidently pose the same or greater risk of viral transmission, [thus] violat[ing their congregants] rights to the Free Exercise of Religion and Free Speech and Assembly.”

The Constitution, they argue “does not allow a State to pursue such measures against religious practices more aggressively than it does against comparable secular activities.” The issue closely resembles that in Brooklyn Catholic Diocese v. Andrew Cuomo, Governor of New York. A fractured court, in six opinions voted 6-3 to enjoin Cuomo’s order that in “red zones” no more than 10 may congregate in a church or other indoor place of worship. In a “yellow” zone no more than twenty five may gather in worship.

The Supreme Court in a per curiam opinion in the Brooklyn Catholic Diocese case said the New York measures denied churches and synagogues “the minimum requirement of neutrality”. The opinion disparaged Cuomo’s order because enterprises deemed “essential” include “acupuncture facilities, camp grounds, garages, as well as many whose services are not limited to those that can be regarded as essential, such as all plants manufacturing chemicals and microelectronics and all transportation facilities.” Three dissenters on the merits (Justices Breyer, Kagan, and Sotomayor) faulted the five-member majority for interfering with the governor’s informed choices as uninformed intrusions by judges trained as lawyers but unskilled in the arts of epidemiology and public health.

The Supreme Court has vacated the order of the district court denying relief and remanded for reconsideration in light of the Brooklyn Catholic Diocese case. But it appears to us that the New Jersey case can be readily distinguished from the New York order enjoined by the high court. In his brief for Gov. Murphy, Attorney General Gurbir Grewal reports that the New Jersey orders do not single out religious gatherings but rather “prevent crowding at any venue where the public congregates for extended periods”. Grewal goes on to explain that New Jersey “reserves its strictest numerical limits for indoor gatherings, limiting them to just ten people, because they combine the various risk factors that lead to spread of COVID-19—such as group interactions, in indoor spaces, for extended periods of time, and even including loud talking or singing.  And the state maintains robust 25% capacity limits for venues where the public remains for extended periods, reasoning that “the more closely [persons] interact with others and the longer that interaction, the higher the risk of COVID-19 spread.”

Courts exercising their equity powers properly tailor their injunctions to the circumstances presented to afford full relief. But there must be a wrong to warrant a remedy. That a general order on congregant activity may impact different groups differently is not tyranny but good government when it is grounded in scientific opinion formed with the degree of rigor typically employed in a field.

Gov. Murphy’s order is informed by the opinions of epidemiologists and public health experts who explain that: the “dose” of COVID-19 to which someone is exposed makes a difference in how likely that individual is to contract the virus, and how severe their illness will be. And the dose to which someone was exposed depends on the closeness and length of their contacts with an infected person. As the CDC puts it, “the more closely you interact with others and the longer that interaction, the higher the risk of COVID-19 spread.”

In the Brooklyn Catholic Diocese case, Associate Justice Brett Kavanaugh explained his vote saying that “New York has not sufficiently justified treating houses of worship more severely than secular businesses.” But in New Jersey the disparity to which Kavanaugh objected is absent. And perhaps more importantly, Murphy’s order is tailored to the viral dose to which certain categories of conduct may subject others, creating heightened risk to the uninfected.

The epidemic is raging and we hope that the newly approved vaccines will bring COVID-19′s spread to a halt. As new infections exceed 200,000 per day nationally and daily deaths exceed 2,000, now is no time for courts to fine tune the scientifically-grounded measures rationally adopted by our state, which is conventionally understood to have the “police power” to protect the public health and welfare.

Sunday, December 27, 2020

OTHERWISE: The Largest Mass Execution in American History : Heather Cox Richardson - We're History

OTHERWISE: The Largest Mass Execution in American History : Heather Cox Richardson - We're History

Building Immigration Policy Back Better - Anil Kalhan*

Since 2017, President Trump and his allies have hurtled the politics and policy of immigration in xenophobic directions to an extent without modern precedent and with devastating eff ect.1 The Trump presidency has instituted hundreds of restrictionist measures, including high profi le initiatives that have prompted signifi cant public controversy and many less prominent, often technical measures that have erected a sprawling, “invisible wall” and placed millions at heightened risk of deportation.2 With the onset of the novel coronavirus pandemic, the administration has intensifi ed this crackdown further, using the outbreak as a pretext to institute even more sweeping restrictions that it previously had tried but failed to achieve. Because these measures have been implemented almost entirely through executive action, rather than new legislation, the next administration will be well-positioned to roll back many of them—that is, provided that it commits the resources, energy, and political capital required. But even as it seeks to dismantle the Trump immigration legacy, the new administration should also lay the foundation for a more fundamental paradigm shift away from the entrenched regime of comprehensive immigration severity that enabled the Trump presidency’s xenophobic crackdown in the fi rst place.3 In both its executive actions and legislative agenda on immigration, the new administration has an opportunity embrace the more ambitious objective, as it has in other policy domains, to “build back better” in the aftermath of Trump.
 Rolling Back Trumpism  

Saturday, December 26, 2020

COVID-19 Suits, Preemption, and Workers' Compensation

COVID-19 Suits, Preemption, and Workers' Compensation

At, Amanda Bronstad covers suits by employees against Tyson Foods.  The defendants in those cases have argued negligence claims are preempted by the Federal Meat Inspection Act and the Poultry Products Inspection Act.  In the cases filed in Iowa, defendants also cited the workers' compensation bar.  Tyson opted out of workers' compensation in Texas, the only jurisdiction in the United States in which that is possible.  Bronstad then discusses preemption as applicable to other industries.  For instance, nursing homes sued for negligence have attempted to argue preemption based on the Public Readiness and Emergency Preparedness (PREP) Act:

At least four federal judges, in New Jersey, Kansas, Pennsylvania and California, have ruled against the nursing homes, granting remand of the cases to state courts.

“The allegations are ‘you didn’t take enough steps to keep us from getting COVID.’ Courts are looking at that, saying that’s not what the PREP Act had in mind,” Robinette said. “Basically, what the PREP Act is talking about is certain drugs, biological products or devices—for instance, once a vaccine has been developed. But the suits are alleging things like your failures to do certain things have led to us getting COVID.”

Rothstein & Irzyk on Employer Liability for "Take-Home" COVID-19

Rothstein & Irzyk on Employer Liability for "Take-Home" COVID-19 

Mark Rothstein and Julia Irzyk have posted to SSRN Employer Liability for "Take-Home" COVID-19.  The abstract provides:

Workplace exposure to SARS-CoV-2 has been a source of morbidity and mortality from COVID-19, especially for “essential workers,” such as those employed in health care and meatpacking. Many family members of these workers also have become infected and died. If the employee’s exposure was the result of the employer’s negligence, the family member or the family member’s estate might be able to recover from the employer using the “take-home” liability theory first developed in asbestos cases. This article discusses the elements of these cases and how they relate to workers’ compensation, OSHA enforcement, and other aspects of workplace safety and health protections.

Monday, December 21, 2020

Supreme Court dismisses reapportionment case, says it's too soon to rule // ABA Journal

Supreme Court dismisses reapportionment case, says it's too soon to rule//ABA journal

The U.S. Supreme Court on Friday dismissed a case challenging President Donald Trump’s plan to exclude immigrants in the country illegally from numbers used to determine the number of congressional representatives for each state.

The Supreme Court said it was too soon to decide the case because there are so many unknowns, report the Washington Post, the New York Times and SCOTUSblog.

According to the New York Times, excluding the immigrants could shift the allotment of congressional seats “to states that are older, whiter and typically more Republican.”

At issue is a 14th Amendment provision that reads: “Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state.” Data from the census is used to make the calculation.

Trump had sought to exclude immigrants without lawful status from reapportionment “to the extent feasible.” But the U.S. Census Bureau has said it might not be able to supply those figures while Trump is still in office, and it’s unclear how many people would be excluded from the count.

“At present, this case is riddled with contingencies and speculation that impede judicial review,” the Supreme Court said in a per curiam opinion.

Justice Stephen G. Breyer dissented in an opinion joined by Justices Sonia Sotomayor and Elena Kagan.

Breyer argued in his dissent that the plaintiffs challenging the policy have standing, the case is ripe for resolution, and the plaintiffs challenging the policy should prevail on the merits.

“The plain meaning of the governing statutes, decades of historical practice, and uniform interpretations from all three branches of government demonstrate that aliens without lawful status cannot be excluded from the decennial census solely on account of that status,” Breyer said. “The government’s effort to remove them from the apportionment base is unlawful, and I believe this court should say so.”

The case is Trump v. New York.

NJ Supreme Court: Attorney-Client arb agreements OK - BUT advantages and disadvantages must be explained

OTHERWISE: NJ Supreme Court: Attorney-Client arb agreements OK - BUT advantages and disadvantages must be explained: The New Jersey Supreme Court in Delaney v. Sills (A30-019) has OK'd retainer agreements that provide that all disputes between attorney a...

Thursday, December 17, 2020

Eric Segall: Standing Outside the Law: Of Incoherence and How Legal Sausages are Made - Dorf on Law

Professor Eric Segall has a particularly strong bead on the incoherence of the concept of standing.  Iconically ascribed to the phrase "cases and controversies" in the federal constitution it is in reality one of the masks judges wear as they pick their spots.
Most recently the Supreme Court used the sanitized phrase "no judicially cognizable interest" to strike down Texas's plainly partisan lawsuit to disenfranchise millions of voters in Pennsylvania and other swing states so as to keep Donald Trump in the White House.  Instead the court spurned candor and turned to standing. - gwc
Eric Segall: Standing Outside the Law: Of Incoherence and How Legal Sausages are Made - Dorf on Law

Sunday, December 13, 2020

Thursday, December 10, 2020

OTHERWISE: Supreme Court dodges Delaware Courts Challenge

OTHERWISE: Supreme Court dodges Delaware Courts Challenge:   
Supreme Court 8-0 dodges Delaware Courts Challenge on standing grounds. IMO the Court should have remanded for trial, not dismissed.

Monday, December 7, 2020

Pennsylvania Supreme Court, Citing Laches, (Unreasonable Delay) Ends Latest Challenge to Certification of Election Results | Election Law Blog

Pennsylvania Supreme Court, Citing Laches, (Unreasonable Delay) Ends Latest Challenge to Certification of Election Results | Election Law Blog

Perhaps the Dumbest Argument Ever Made in Emergency Petition to the Supreme Court Appears in Pennsylvania Election Case | Election Law Blog

Perhaps the Dumbest Argument Ever Made in Emergency Petition to the Supreme Court Appears in Pennsylvania Election Case | Election Law Blog

Super Interesting: In Rep. Kelly’s Case Seeking to Overturn PA Results for President, Brief from PA Republican Party Does NOT Support Argument Election Should Be Overturned | Election Law Blog

Super Interesting: In Rep. Kelly’s Case Seeking to Overturn PA Results for President, Brief from PA Republican Party Does NOT Support Argument Election Should Be Overturned | Election Law Blog

Damages: A Mass Tort Settlement - DePuy J&J ASR Hip Implant Devices

A Mass Tort Settlement - DePuy J&J ASR Hip Implant Devices   recorded video lecture 48:00 12/3/20

US ASR settlement - Powerpoint SLIDES

 US ASR Hip Settlement - official website

Saturday, December 5, 2020

Damages: the BP Gulf Oil Spill and the Deepwater Horizon Disaster

Damages: the BP Gulf Oil Spill and the Deepwater Horizon Disaster video lecture 12/6/20 1:01

Deepwater Horizon Settlements - official website

The economic losses suffered in the Gulf Coast region as a result of the massive oil spill in April 2010 were not recoverable under prevailing precedent in both maritime and tort law.  They both provided that "pure economic loss was not compensable".  ONLY if one suffered property damage or physical injury could he/she recover money.

Plaintiffs had argued with some success for expansive concepts of proximate cause such as may be recalled from first year torts and the Kinsman cases. There recovery for economic losses due to inability to meet contractual delivery dates were held to be too remote to permit recovery as a foreseeable consequence of the failure to secure vessels in the swift currents of the icy Niagara River which caused the collision with and collapse of a bridge over the river.

Courts had repeatedly found a way to compensate economic losses that were the obvious result of negligence in environmental cases arising from barges that spilled into rivers, oil wells in the ocean off the California coast, and the oil spilled by an Exxon supertanker off the shore in Alaska.  One bold judge - John Minor Wisdom - had argued in the Testabank case that property damage was not a prerequisite.  So long as one was rendered unable to "make use of" the damaged natural resource the loss should be compensable.  But he was a lone dissenter on the Fifth Circuit Court of Appeals.

Although to reason by example is often merely to restate the problem, the following illustration may be an aid in explaining our result. To anyone familiar with N. Y. traffic there can be no doubt that a foreseeable result of an accident in the Brooklyn Battery Tunnel during rush hour is that thousands of people will be delayed. A driver who negligently caused such an accident would certainly be held accountable to those physically injured in the crash. But we doubt that damages would be recoverable against the negligent driver in favor of truckers or contract carriers who suffered provable losses because of the delay or to the wage earner who was forced to "clock in" an hour late. And yet it was surely foreseeable that among the many who would be delayed would be truckers and wage earners.

In the final analysis, the circumlocution whether posed in terms of "foreseeability," "duty," "proximate cause," "remoteness," etc. seems unavoidable. As we have previously noted, 338 F.2d at 725, we return to Judge Andrews' frequently quoted statement in Palsgraf v. Long Island R.R., 248 N.Y. 339, 354-355 (dissenting opinion): "It is all a question of expediency * * * of fair judgment, always keeping in mind the fact that we endeavor to make a rule in each case that will be practical and in keeping with the general understanding of mankind." Petitions of Kinsman Transit Co., 388 F.2d 821, 825 (2d Cir. N.Y. 1968)

Fortunately for people on the Gulf Coast the Oil Pollution Act of 1991 promised a broader scope of liability - as long as one suffered a loss that was "due to" or "results from" damage to natural resources a recovery was allowed.   Neither property damage nor personal injury needed to be shown, federal judge Carl Barbier held.

The OPA contained a limitation for $75 million for oil spill compensation.  But the statute excepted damage resulting from gross negligence. BP did not raise that as a statutory defense.  And Judge Barbier ultimately ruled that BP had been grossly negligent - thus allowing escape from the damages cap.

For those most directly affected - fishermen and others in the immediate shoreline area a simple mode of proof of damages was devised:

How to calculate your lost income or profits under the Deepwater Horizon Settlement, using a fisherman as an exemplar

A) What was my share of the catch for either the same period in 

* 2009


* 2008-2009 average


* Average of 2007 - 2009

B) What was my catch of shrimp for any three months in the period April 20 - December 2010

C) A minus B = Loss

D) Depending on Zone or category multiply C x [1.25x....3.0x) RTP

E) Add C+ D = total compensation

[A] ($30,000), plus RTP ($90,000) = $120,000


NOAA:  Deepwater Horizon oil spill settlements: Where the money went

U.S. and States Announce Historic Settlement - Department of Justice

Monday, November 30, 2020

A lawyer's responsibilities - Giuliani, et al. fail and fail again.

OTHERWISE: A lawyer's responsibilities - Giuliani, et al. fail and fail again.: Judge Matthew Brann, Harrisburg, PA A Lawyer’s Responsibilities We lawyers are responsible.  That is our stock in trade.  ..

In Harrisburg District Judge Matthew Brann, an Obama nominee, past Republican state official, sponsored by Senator Pat Toomey declared in his action denying leave to file a third version of the Trump campaign’s complaint:

...this Court has been presented with strained legal arguments without merit and speculative accusations, unpled in the operative complaint and unsupported by evidence. In the United States of America, this cannot justify the disenfranchisement of a single voter, let alone all the voters of its sixth most populated state. Our people, laws, and institutions demand more.

Saturday, November 28, 2020

Sanction GOP election lawyers?

OTHERWISE: Sanction GOP election lawyers?: I am scarcely incognizant of the importance of protecting lawyers who represent the unpopular.  That provides no ground on which to stand ...

Thursday, November 26, 2020

Supreme Court 5-4 stays Cuomo exec order on Church and synagogue attendance

OTHERWISE: Supreme Court 5-4 stays Cuomo exec order on Church and synagogue attendance: Responding to "emergency" petitions the the Roman Catholic Brooklyn Archdiocese and an Orthodox Jewish group Agudath Israel of America the ...

Tuesday, November 17, 2020

Professor Drew S. Days III dies at 79 - Yale Law School

Yale Law School Mourns the Death of Alfred M. Rankin Professor of Law Drew S. Days III - Yale Law School

After law school Drew Days served in the Peace Corps in Honduras with his wife Ann from 1967-1969.  He then began work at the NAACP Legal Defense Fund in New York City as its First Assistant Counsel, where he litigated cases in the areas of school desegregation, police misconduct, employment discrimination, and prisoners’ rights until 1977.

At the age of 30, Days won a lawsuit that desegregated his childhood Tampa schools as part of the trial team in Mannings v. Board of Public Instruction of Hillsborough County, Florida.

President Jimmy Carter nominated him to be the first African American Assistant Attorney General for the Civil Rights Division at the U.S. Department of Justice in 1977. In that capacity, he was responsible for nationwide enforcement of federal civil and criminal civil rights laws. In 1978, he led the successful effort to endorse affirmative action programs in the landmark case Regents of the University of California v. Bakke.

Days joined the Yale Law faculty in 1981. At Yale, his teaching and writing was in the fields of civil procedure, federal jurisdiction, Supreme Court practice, antidiscrimination law, comparative constitutional law (Canada and the United States), and international human rights. In 1991, he was named Alfred M. Rankin Professor of Law. From 1988 to 1993, he was also the founding director of the Orville H. Schell Jr. Center for International Human Rights at Yale Law School. From 1993–1996, Days served as the Solicitor General of the United States for the Clinton Administration.

“Drew was a gentle, courageous lawyer of principle, deeply committed to human and civil rights. He always spoke quietly and modestly, but with such moral authority,” said former Dean and Sterling Professor of International Law Harold Hongju Koh. “Along with his mentor Burke Marshall, another former head of the Civil Rights Division, he was one of the moral centers of the Yale Law School in the late-20th century. He cared nothing for titles or recognition, because his client was always the Constitution, not the political powers of the moment. His life will be remembered as a reminder of the moral urgency of putting principle first.”

Monday, November 16, 2020

Saturday, November 14, 2020

Against a Catholic backdrop, Biden vows increase in refugee admissions | National Catholic Reporter

Against a Catholic backdrop, Biden vows increase in refugee admissions | National Catholic Reporter

Joe Biden chose the setting of one of the Catholic Church's leading refugee support organizations' events to state for the first time as president-elect that he will dramatically increase the target for refugee admissions to the United States, offering a stark contrast to the historic lows under President Donald Trump that were long protested by Catholic leaders.

The Catholic president-elect who repeatedly invoked his faith on the campaign trail, said he would raise the annual admission target to 125,000, marking a sharp increase to the Trump administration's cap of 15,000 individuals.

"A Biden-Harris administration will restore America's historic role in protecting the vulnerable and defending the rights of refugees everywhere," he said.

Last June, on World Refugee Day, Biden had previously pledged to increase the refugee ceiling, but this is the first time he has committed to doing so as president-elect.

His remarks came on Nov. 12 during a virtual 40th anniversary celebration for Jesuit Refugee Service/USA. Established in 1980 as an initiative of the Society of Jesus, the organization works around the globe to resettle refugees and other forcibly displaced persons.

"This is a great organization. This organization was founded to serve the needs of some of the most vulnerable among us," Biden said in a prerecorded message. "JRS believes that in the stranger, we actually meet our neighbor and that every society is ultimately judged by how we treat those most in need."


Wednesday, November 11, 2020

Opinion | What Is Trump Playing At? - The New York Times

Donald Trump's refusal to concede that he lost th election is an unprecedented threat to democracy.
Opinion | What Is Trump Playing At? - The New York Times

By Thomas Edsall

Trump's Pennsylvania post-election challenge

 Trump's Pennsylvania post-election challenge - Trump v. Boockvar, Sec'y of Commonwealth   <<<VIDEO recording

Constitution of the United States of America

Article I 

  • Section 4

    • Clause 1
    • The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.

The Trump Pennsylvania Complaint - too much counting?

Tribe & Mazie - Trump threatens a coup  Boston Globe 10/28/20

Update: Texas law profs support Democrats opposing GOP effort to void 100,000 Houston curbside ballots

Amar. Katyal and Amar Opinion | The Supreme Court Should Not Muck Around in State Election Laws - The New York Times

Republican Party of PA v. Boockvar, motion to expedite certiorari petition denied, over dissent by Alito, that PA Supreme Court "squarely alters" a "statutory provision... enacted by the Pennsylvania Legislature"

Carson v. Simon, Minnesota Sec'y of State, October 29, 2020, 8th Circuit [2-1], enjoins Secretary of State's directive to count mail-in ballots postmarked by November 3 but received through November 10

Order and dissent: Merrill, Secretary of State v. People First of Alabama Federal Court Alabama reinstates  5-3  ban on curbside voting, October 21, 2020

 By Ian Millhiser

Merrill, AL Secretary of State v. People First, October 21, 2020

Democratic Party of Penn v. Boockvar, Penn Supreme Court, September 17, 2020
linked and discussed in Harvard Law Review Blog

Tuesday, November 10, 2020

Andy Slavitt - things are looking up but the next three months will be the worst

 You can hear Andy Slavitt (Ex-Obama health care head) and Eric Topol (Scripps, former Cleveland Clinic provost) on Slavitt's podcast In the Bubble November 10, 2020

Supreme Court, put the needs of children in foster care first | TheHill

Based on the tenor or oral argument last seek the Supreme Court seems poised to require Philadelphia to offer a contract to Catholic Social Services for adoption and foster care - despite CSS refusal to place children with same-sex married couples - whose marriages it does not recognize. This despite Pope Francis's recent statement in support of civil union for gay couples. - gwc
OTHERWISE: Supreme Court, put the needs of children in foster care first | TheHill: Supreme Court, put the needs of children in foster care first | TheHill By Mary Boo  [Executive director of the North American Council on Adoptable Children]

Monday, November 9, 2020

The Trump Pennsylvania Complaint - too much counting?

OTHERWISE: The Trump Pennsylvania Complaint - too much counting?

David Nasaw Traces What Happened To WWII's 'Last Million' Displaced People : NPR

David Nasaw Traces What Happened To WWII's 'Last Million' Displaced People : NPR

By Dave Davies

When Allied troops entered Germany at the end of World War II, they were astounded to learn that more than 6 million people had been stranded in the fallen Reich after the war.

"The number of homeless, shelterless, starving civilians [in Germany] was overwhelming," historian David Nasaw says.

Among the displaced persons were Allied prisoners of war, Jewish survivors of concentration camps and forced laborers from conquered lands who had been brought in by the Nazis to fuel the German war effort. Within a few months, most of them were able to return to their homelands, but about a million people refused to go home — or had no home to return to.

Nasaw writes about the remaining group in his new book, The Last Million. He notes that the six-year effort to house displaced persons in camps and eventually find them new countries to settle in proved to be a torturous and politically charged journey at a time when most of the world wanted to forget about the war and people wanted to rebuild their own lives.

"From 1947 on, the nations of the world began to accept for resettlement displaced persons — Latvians, Estonians, Poles, Yugoslavs — but they would not welcome the Jews," he says. "Until America opened its doors to Jewish displaced persons, no nation on Earth was willing to do so."

But U.S. acceptance of displaced persons — especially Jews — was severely restricted. And Nasaw says that the postwar resettlement effort set a pattern for the 21st-century refugee crisis.

"What I discovered for the case of the last million refugees after World War II was that nationalist concerns and political concerns always overruled humanitarian concerns," he says. "In a funny way, the results for the last million were much more promising than the results for the refugees who came after them."


Friday, November 6, 2020

National Academy of Social Insurance Annual Report on Workers' Compensation Workers’ Compensation Law Prof Blog

National Academy of Social Insurance Annual Report on Workers' Compensation

NASI's annual "costs and benefits report" is just out and is updated to include 2018 data (the most recent available). Yours truly and Pennsylvania Workers' Compensation Judge David B. Torrey--co-editors of this blog--are members of NASI's workers' compensation data panel, which advises NASI policy analysts tasked with creating the report. From the summary:

The 23rd annual report produced by the Academy on Workers' Compensation: Benefits, Costs, and Coverage (2018 Data) provides the only comprehensive data on workers' compensation benefits, coverage, and employer costs for the nation, the states, the District of Columbia, and federal programs. Drawing on a unique combination of data from state workers’ compensation agencies, A.M. Best, and the National Council on Compensation Insurance, the report is guided by a Study Panel of experts with diverse research, policy, and practice experience. While trends in this five-year study period (2014-2018) largely continue those presented in the past few reports, expanded discussions about who pays for workers’ compensation, which similar programs might belong in future analyses, and other social insurance and safety-net programs that complement workers’ compensation protections, offer new insights and timely information in the context of the current COVID-19 pandemic.

The Report is here.

Michael C. Duff

Can Workers’ Compensation Covid Causation Presumptions Have Preclusive Effect in Tort Cases?Workers’ Compensation Law Prof Blog

by Michael Duff
One of the more interesting fact scenarios playing out in recent months centers on the scope of workers’ compensation exclusivity: an employee becomes exposed to coronavirus but does not herself become disabled by Covid-19. Instead, she carries the disease home and exposes certain others in her household to the virus, and one or more of those others develops Covid-19. The situation is analogous to the employee who becomes exposed to asbestos at work, does not herself develop the signature disease of mesothelioma, but someone else in the household does develop that disease. While I have no empirical data on the frequency of these kinds of Covid-19 cases, I am hearing and reading that they are being litigated.

The Larson’s treatise terms these “independent breach” claims (§101.03): a dependent spouse or parent brings an action against the employee’s employer suing not derivatively, in connection with the employer’s breach of a duty to the employee (a negligence breach clearly subsumed by exclusivity), but independently in connection with a wrong committed directly against the spouse or parent. This is not, for example, a meatpacking plant worker’s wrongful death suit filed by a surviving family member eligible for workers’ compensation benefits. That type of suit is preempted by workers’ compensation exclusivity (at least in the absence of intentional/willful/wanton/malicious conduct, where the action may theoretically be available depending on the state in question). In an independent breach claim the employee “bringing home” asbestos (or Covid 19) is simply a conduit for transmission of the disease agent. For this reason it should also not matter if a state bars workers’ compensation for infectious diseases since the claim does not arise under workers’ compensation. 

Wednesday, November 4, 2020

African American voters in the "black belt" - the rich soils tilled by slaves


This is a brilliant thread which ties the legacy of slavery to the present. 

Wednesday, October 28, 2020

As Supreme Court Weighs Election Cases, a New Life for Bush v. Gore - The New York Times

As Supreme Court Weighs Election Cases, a New Life for Bush v. Gore - The New York Times
by Adam Liptak

WASHINGTON — The Supreme Court’s decision in Bush v. Gore 20 years ago was supposed to work like the tape recorder in “Mission: Impossible.” It was meant to produce a president and then self-destruct.

“Our consideration is limited to the present circumstances,” the majority wrote. In other words: The decision was a ticket for one ride only, handing the presidency to George W. Bush and then disappearing. In the two decades that followed, only a single Supreme Court opinion ever cited the case, and that was a passing reference in a footnote to a 2013 dissent from Justice Clarence Thomas.

On Monday, Justice Brett M. Kavanaugh breathed new life into the decision, which on December 12, 2000 shut down a recount in Florida ordered by the state Supreme Court. He said the decision could play a role in deciding an election dispute now before the court and other potential challenges to election rulings from state courts.

Then, in a long footnote, Justice Kavanaugh addressed a different question, one not before the court. Citing Bush v. Gore, he said federal courts do have a role to play in supervising state courts in some election disputes. Ordinarily state Supreme Courts have the last word on issues of state law.

“As Chief Justice Rehnquist persuasively explained in Bush v. Gore,” Justice Kavanaugh wrote, referring to a concurring opinion in that case, “the text of the Constitution requires federal courts to ensure that state courts do not rewrite state election laws.”


Tuesday, October 27, 2020

Supreme Court in Unsigned Order on 5-3 Vote Reinstates Alabama Ban on Curbside Voting; Justice Sotomayor Writes Dissent for Three Liberal Justices; What It Means | Election Law Blog

Breaking: Supreme Court in Unsigned Order on 5-3 Vote Reinstates Alabama Ban on Curbside Voting; Justice Sotomayor Writes Dissent for Three Liberal Justices; What It Means | Election Law Blog
By Rick Hasen (UC Irvine) October 21, 2020)

I am not at all surprised by this ruling, even though I agree 100% with Justice Sotomayor’s disssent. If you look at the two main statements of the Court in these emergency covid election cases, from Wisconsin and South Carolina, it is clear that the conservative Justices believe that it is up to states, rather than federal courts, to decide how to best balance health concerns related to voting during the pandemic with burdens on voting rights. These Justices also seem to have adopted a strong view of the Purcell Principle against changes in voting rules by federal courts close to the election. (Chief Justice Roberts, who was in the majority in both of those cases and the Pennsylvania state case seems to believe in great deference to states—even state courts—in deciding how to balance these health and safety concerns.)

This would seem to bode poorly for the attempts by Democrats and voting rights groups petitioning the Supreme Court to reinstate the extension of voting deadlines in Wisconsin, which a district court had granted and the 7th Circuit had reversed, citing the Supreme Court precedents. Any more federally ordered voting changes that make their way to the Supreme Court before the election face a steep uphill climb.

The liberals, as expressed in the Wisconsin dissent by Justice Ginsburg and the Sotomayor dissent today would, as I believe they should, put a thumb on the scale favoring voting rights during the pandemic. It is quite clear that the right to vote is too weakly protected in the U.S. even during the pandemic.

Sotomayor concludes:

The District Court’s modest injunction is a reasonable accommodation, given the short time before the election. It does not require all counties to adopt curbside voting; it simply gives prepared counties the option to do so. This remedy respects both the right of voters with disabilities to vote safely and the State’s interest in orderly elections. The District Court’s compromise likewise does not risk creating “voter confusion and consequent incentive to remain away from the polls.” Purcell v. Gonzalez, 549 U. S. 1, 4–5 (2006) (per curiam).

Supreme Court, on 5-3 Party Line Vote, Won’t Restore Wisconsin Ballot Deadline Extension; Justices Fight in Footnotes over Pennsylvania State Court Issue | Election Law Blog

Supreme Court, on 5-3 Party Line Vote, Won’t Restore Wisconsin Ballot Deadline Extension; Justices Fight in Footnotes over Pennsylvania State Court Issue | Election Law Blog
By Rick Hasen (UCLA)

The result in this case is not a surprise; in every case that Court has considered this election cycle where a federal court has extended a voting rule over state objection, the state has won (often, but not always, along a party line vote). Indeed, I was surprised that Wisconsin plaintiffs decided to take this case up. Doing so risked making more bad law, which is what this case just did.

Perhaps of greatest importance in this case, however, is not the (unsurprising) holding or party-line split but instead the fight over the issue in the Pennsylvania case: what happens when it is a state court, not a federal court, extending voting rights during the pandemic. Three of the Justices weighed in on this. Justice Kavanaugh dropped an extensive footnote, citing Bush v. Gore (!), arguing that state courts too are limited in extending voting rights even during a pandemic and even in reliance on a state constitution if a state legislature objects...

Monday, October 26, 2020

Supreme Court Tie Gives Pennsylvania More Time to Tally Some Votes - The New York Times

A 4-to-4 tie let stand a ruling from Pennsylvania’s highest court that had extended the deadline for counting some mailed ballots by three days, citing the pandemic and postal delays.  As is common practice no explanation was offered.
Supreme Court Tie Gives Pennsylvania More Time to Tally Some Votes - The New York Times
By Adam Liptak 

5-3 Scotus bars Wisconsin mail ballots postmarked by but received after election day

The Supreme Court by 5-3 vote has refused to vacate a stay of a District Judge's order that mailed ballots postmarked before but received after election day be counted.  Neil Gorsuch and Brett Kavanaugh are derisively dismissive of Justice Kagan's concerns about maximizing the vote during the health emergency. 
Remarkably, as I discussed in April, the Supreme Court majority in the Wisconsin primary had itself entered a sua sponte order that ballots postmarked by election day be counted. 
Elena Kagan, dissenting: 

Wisconsin is one of the hottest of all COVID hotspots in the Nation.  So rather than vote in person, many Wisconsinites will  again  choose  to  vote  by  mail.    State  election  officials  report that 1.7 million people—about 50 percent of Wiscon-sin’s voters—have already asked for mail ballots.  And more are expected to do so, because state law gives voters until October 29, five days before Election Day, to make that re-quest.        To ensure that these mail ballots are counted, the district court  ordered  in  September  the  same  relief  afforded  in  April:  a  six-day  extension  of  the  receipt  deadline  for  mail  ballots postmarked by Election Day.  The court supported that order with specific facts and figures about how COVID would affect the electoral process in Wisconsin.  See Democratic National Committee v. Bostelmann, 2020  WL  5627186 (WD  Wis.,  Sept.  21,  2020).   

The  district court  found  that  the  surge  in  requests  for  mail  ballots  would  overwhelm  state officials in the weeks leading up to the October 29 ballot-application deadline.  And it discovered unusual delays in the United States Postal Service’s delivery of mail in the State.  The combination of those factors meant, as a high-ranking  elections  official  testified,  that  a  typical  ballot  would take a full two weeks “to make its way through the mail from a clerk’s office to a voter and back again”—even when  the  voter  instantly  turns  the  ballot  around. 

Based on the April election experience, the court determined that many voters would not even receive mail ballots by Election Day, making it impossible to vote in that way.  And as many as 100,000 citizens  would  not  have  their  votes  counted—even  though  timely requested and postmarked—without the six-day ex-tension.  (To put that number in perspective, a grand total of 284 Wisconsin mail ballots were not counted in the 2016 election.1)    In  the  court’s  view,  the  discarding  of  so  many  properly  cast  ballots  would  severely  burden  the  constitutional right to vote.  The fit remedy was to create a six-day grace period, to allow those ballots a little extra time to ar-rive in the face of unprecedented administrative and delivery delays.     But  a  court  of  appeals  halted  the  district  court’s  order,  and today this Court leaves that stay in place.  

I respectfully dissent because  the  Court’s  decision  will  disenfranchise  large numbers of responsible voters in the midst of hazardous pandemic conditions.