Genuine patriots- volunteer lawyers at detention centers - NYTimes.com

OTHERWISE: Genuine patriots- volunteer lawyers at detention centers - NYTimes.com:



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A Legal Battle Over Vivian Maier’s Work - NYTimes.com

Astonishingly beautiful work.  Click through to the story.  Reminds me of my very much alive friend and great street photographer Susan Sermonetta.

A Legal Battle Over Vivian Maier’s Work - NYTimes.com: 

by Randy Kennedy

The story of the street photographer Vivian Maier has always been tangled — she worked much of her life as a nanny, keeping her artistic life a secret, and only after she died in 2009, at the age of 83, nearly penniless and with no family, were her pictures declared to be among the most remarkable of the 20th century. Now a court case in Chicago seeking to name a previously unknown heir is threatening to tie her legacy in knots and could prevent her work from being seen again for years.

The case was filed in June by a former commercial photographer and lawyer, David C. Deal, who said he became fascinated with Maier’s life in law school and took it upon himself to try to track down an heir. He did so, he said, because he was upset that prints of her work — from more than 100,000 negatives found in a storage locker at an auction, containing images now possibly worth millions of dollars — were being sold by people who came to own the negatives but had no family connection to Maier, who spent most of her childhood in France and worked in Chicago, where she died.

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Judge Posner dismisses Wisconsin and Indian gay marriage bans

The decision of District Judge Martin Feldman in Robicheaux v. Caldwell upholding Louisiana's bar on same-sex marriage heartened conservatives (e.g. Justice Scalia acolyte Kevin Walsh in the conservative Catholic blog Mirror of Justice).  Feldman sees the issue as a choice between "democratic processes"and "sincere lifestyle choices".  He opts for democratic process, finding a rational basis for the discrimination because "Louisiana's laws and Constitution are directly related to achieving marriage's historically preeminent purpose of linking children to their biological parents."

But this week, in Baskin v. Bogan, only nine days after oral argument, the 7th Circuit struck Wisconsin and Indiana's bans in a scathing opinion by Judge Richard Posner, saying

Formally these cases are about discrimination against the small homosexual minority in the United States. But at a deeper level, as we shall see, they are about the welfare of American children. The argument that the states press hardest in defense of their prohibition of same-sex marriage is that the only reason government encourages marriage is to induce heterosexuals to marry so that there will be fewer “accidental births,” which when they occur outside of marriage often lead to abandonment of the child to the mother (unaided by the father) or to foster care. Overlooked by this argument is that many of those abandoned children are adopted by homosexual couples, and those children would be better off both emotionally and economically if their adoptive parents were married.

It won't be long before the United States Supreme Court has to resolve the splits among the lower courts.  Conservatives will stack history and state sovereignty against the rising tide of opinion that accepts homosexuality and same-sex relationships as unobjectionable, or a positive good.  - GWC 

Third Circuit Says Irreparable Harm Not Presumed in False Advertising Cases

Ferring unsuccessfully sought an injunction against its competitor Watson
which had misrepresented facts, but retracted the unsupported claims

Even though injunctive relief is often granted - especially in patent, copyright, and trademark infringement cases - that injunctive relief is an “extraordinary remedy, which should be granted only in limited circumstances” has remained the often ignored black-letter law. The principle lies at the heart of the maxim that a judge has discretion to to grant or deny a preliminary injunction. The conventional "test" is
(1) whether the party seeking the order has shown a reasonable probability of success on the merits; (2) whether they  will be irreparably injured by denial of the relief; (3) whether granting preliminary relief will result in even greater harm to the non-moving party; and (4) whether granting preliminary relief will be in the public interest.

Although courts recite these elements by rote a body of law developed that in certain cases - particularly trademark infringement, patent infringement, and copyright cases the irreparable harm element is presumed.  That is because it is practically impossible to prove what loss one suffered when someone else appropriates your trade name, or misrepresents something about your product or service.  Courts routinely grant injunctions in such cases because damages seem inadequate - hard to prove, and if the conduct continues, sure to cause some harm.  But eight years ago in eBay v. Merc Exchange the Supreme Court rejected such a presumption.  The Supreme Court further cracked the whip in 2008, holding in a Winter v. NRDC - a challenge to Navy sonar practice as harmful to marine mammals - that plaintiffs must show a "likelihood of irreparable harm" to obtain a preliminary injunction.  
The implications of the two rulings have slowly extended beyond patent cases.  The latest court to fall in line is the Third Circuit.  In Ferring Pharmaceutical v. Watson  decided August 26, 2014 the court declared that irreparable harm is not presumed as a matter of law in a Lanham Act false comparative advertising case. Because the competitor Watson had retracted the false statements and its expedrt promsied not to repeat them District Judge Dennis Cavanaugh denied Ferring's request for an injunction.  The 3rd Circuit affirmed, but said it will stiffen its injunction standards.

The court joined the general belt-tightening directed by the high court, writing:

[I]njunctive relief is an "extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief." Winter, 555 U.S. at 22 . Presuming irreparable harm would relieve the plaintiff of her burden to make such a showing.

The Circuit panel acknowledged that it had been somewhat "all over the map":

We note that before Winter, we had not treated the preliminary injunction irreparable harm requirement in a uniform manner, at times requiring a showing of a "possibility," "probability," or "potential" for irreparable harm. See, e.g., Presbytery of N.J. of Orthodox Presbyterian Church v. Florio, 40 F.3d 1454, 1458 (3d Cir. 1994) (holding that the plaintiff "failed to demonstrate the possibility of immediate and irreparable harm"); Furlong v. Gudknecht, 808 F.2d 233, 234 (3d Cir. 1986) (noting that the district court considered, inter alia, the "potential for irreparable injury absent temporary relief" in determining whether to grant a preliminary injunction); United Tel. Workers, AFL-CIO v. W. Union Corp., 771 F.2d 699, 703 (3d Cir. 1985) ("In deciding whether to provide preliminary relief, the district court must consider the probability of irreparable injury to the moving party in the absence of such relief . . . ."); United States v. Price, 688 F.2d 204, 211 (3d Cir. 1982) (noting that the "factors which guide the exercise of the courts' equitable discretion" in granting or denying a request for preliminary injunctive relief include "the probability of irreparable injury to the moving party in the absence of relief"). However, in light of Winter, parties seeking a preliminary injunction are now required to demonstrate that "irreparable injury is likely in the absence of an injunction." Winter, 555 U.S. at 22

BP reckless in 2010 Oil Spill, U.S. Judge Rules - NYTimes.com

The Times headline writer makes a mistake here.  They key is the finding of recklessness, not simple negligence.  The Oil Pollution Act has a $75 million cap unless recklessness or violation of federal safety regulations is shown.  BP waived the cap but did not admit recklessness.  Now that the finding has been made it will have major implications for the penalty phase.
In the class action settlement agreement punitive damage claims are waived. 
- gwc
BP Negligent in 2010 Oil Spill, U.S. Judge Rules - NYTimes.com: ""

by Clifford Krauss and Campbell Robertson

A federal judge ruled on Thursday that BP was grossly negligent in the 2010 Gulf of Mexico oil well blowout that killed 11 workers, spilled millions of barrels of oil into the Gulf of Mexico and soiled hundreds of miles of beaches.

“BP’s conduct was reckless,” United States District Court Judge Carl J. Barbier wrote in his sternly worded decision. Judge Barbier also ruled that Transocean, the owner of the rig, and Halliburton, the service company that cemented the well, were negligent in the accident.

But the judge put most of the blame on BP, opening the way to fines of up to $18 billion under the Clean Water Act.

In a 153-page, densely technical decision, Judge Barbier described how BP repeatedly ignored mounting warning signs that the well was unstable, making decisions that he says were “primarily driven by a desire to save time and money, rather than ensuring that the well was secure.”'via Blog this'

BP Moves to Oust Patrick Juneau as Oil Spill Administrator // NOLA

BP moves to oust Juneau as spill claims administrator
by the Associated Press

BP PLC has asked a federal judge to remove Patrick Juneau as administrator of damage claims from its 2010 oil spill, saying he failed to disclose a major conflict of interest.

Tuesday's motion by BP says Juneau represented Louisiana in talks setting up the claims process and pushed for favorable terms for those with claims. BP says that means he's not the neutral person required for the job.

Juneau says he will respond in court.

BP says it recently obtained correspondence between Juneau's law firm and the Gulf Coast Claims Facility showing he argued for liberal compensation, flexible documentation requirements and other terms that would help Louisiana claimants at BP's expense.

BP says Juneau was legally required to disclose any conflict of interest, but didn't do so.

Halliburton settles Gulf Oil Spill claims for $1.1 billion // NY Times

Subject to court approval!
Halliburton Settles Gulf Spill claims for $1.1 Billion //NY Times
by Clifford Krauss

Halliburton, the company contracted by BP to cement the ill-fated Macondo oil well in the Gulf of Mexico, has reached a $1.1 billion settlement with thousands of businesses, individuals and local governments that suffered losses from the 2010 Deepwater Horizon oil rig explosion, the company and plaintiffs announced on Tuesday.

The settlement represents a small fraction of the damages paid out by the companies involved in the accident, which left 11 workers dead, spilled millions of gallons of oil into the gulf and soiled hundreds of miles of beaches. But it goes a long way toward resolving Halliburton’s exposure to liability claims.

Had the cement Halliburton mixed and applied to the well been sturdy enough, the worst offshore oil spill in American history would probably not have occurred, according to several studies of the accident. Four years after the disaster, Halliburton and BP continue to dispute which company was responsible for the faulty cement job.

Summer of '64: They Heard the Call of Freedom // Boston Globe

What became known as Mississippi Freedom Summer was a project of SNCC - the Student Non-violent Co-ordinating Committee.  Three of those volunteers were murdered: Michael Schwerner, Andrew Goodman, and James Chaney. The Freedom Summer workers sought to build on the momentum of the civil rights movement which had spurred the 1964 Civil rights Act  Their objective was to create "freedom schools" which would encourage Black Mississippians to stand up for their rights.  That summer three civil rights workers were killed, the Mississippi Freedom Democratic party lost its fight to represent the state at the Democratic National Convention and the southern civil rights movement reached a peak.  The next year the Voting Rights Act would pass and much of the attention shift north and west to the large cities. - gwc

Nina Simone - Mississippi Goddam (1964)
Summer of 1964 - They Heard the Call of Freedom
by Eric Moskowitz // Boston Globe
They were idealists taking on the nation’s shame, students who stood with brave, black Mississippians denied a most basic civil right: the vote.

After Ferguson, Race Deserves More Attention, Not Less - NYTimes.com

After Ferguson, Race Deserves More Attention, Not Less - NYTimes.com:

MANY white Americans say they are fed up with the coverage of the shooting of Michael Brown in Ferguson, Mo.A plurality of whites in a recent Pew survey said that the issue of race is getting more attention than it deserves.

Bill O’Reilly of Fox News reflected that weariness, saying: “All you hear is grievance, grievance, grievance, money, money, money.”

Indeed, a 2011 study by scholars at Harvard and Tufts foundthat whites, on average, believed that anti-white racism was a bigger problem than anti-black racism.

Yes, you read that right!

So let me push back at what I see as smug white delusion. Here are a few reasons race relations deserve more attention, not less:

• The net worth of the average black household in the United States is $6,314, compared with $110,500 for the average white household, according to 2011 census data. The gap has worsened in the last decade, and the United States now has a greater wealth gap by race than South Africa did during apartheid. (Whites in America on average own almost 18 times as much as blacks; in South Africa in 1970, the ratio was about 15 times.)

• The black-white income gap is roughly 40 percent greater today than it was in 1967.

• A black boy born today in the United States has a life expectancy five years shorter than that of a white boy.

• Black students are significantly less likely to attend schools offering advanced math and science courses than white students. They are three times as likely to be suspended and expelled, setting them up for educational failure.

• Because of the catastrophic experiment in mass incarceration, black men in their 20s without a high school diploma are more likely to be incarcerated today than employed, according to a study from the National Bureau of Economic Research. Nearly 70 percent of middle-aged black men who never graduated from high school have been imprisoned.

All these constitute not a black problem or a white problem, but an American problem. When so much talent is underemployed and overincarcerated, the entire country suffers.......

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Judge: Texas School Finance System Unconstitutional | The Texas Tribune

In 2011 the Texas Legislature cut $5 billion from the education budget and further aggravated the inequities among school districts.  The background is detailed in the complaint of Edgewood Independent School District, one of several lawsuits that were filed.  Yesterday State District judge John Dietz in Austin ruled in favor of the plaintiff schools. - gwc
Judge: Texas School Finance System Unconstitutional | The Texas Tribune:

by Morgan Smith

"Nearly three years after more than 600 Texas school districts filed litigation challenging the state's school finance system, a Travis County district judge has ruled in their favor.

In an almost 400-page opinion supported by extensive findings of fact and conclusions of law released Thursday, District Court Judge John Dietz of Austin said that the state's school finance system is unconstitutional not only because of inadequate funding and flaws in the way it distributes money to districts, but also because it imposes a de facto state property tax.

Certain to be appealed by the state, the lawsuit that arose after lawmakers cut roughly $5.4 billion from state public education funding in 2011 will now continue to the Texas Supreme Court.

Though Dietz made no public remarks on Thursday, his decision is a reprise of an earlier oral ruling in February 2013. From the bench at the time, Dietz discussed what he called the "civic, altruistic and economic" reasons for supporting public education.

"We realize that others provided for us when we were children. We realize that children are without means to secure their education. Just as others provided for us when we were in school, now is the time when we provide for others," he said, going on to describe the societal benefits of a well-educated population: lower crime rates, fewer people who need public assistance and a greater state income."



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