OTHERWISE: Sen. Hatch's Op-Ed: `Let Voters Decide' dodges responsibility for choosing a Scalia Successor- The New York Times

OTHERWISE: Sen. Hatch's Op-Ed: `Let Voters Decide' dodges responsibility for choosing a Scalia Successor- The New York Times

On C.T.E. and Athletes, Science Remains in Its Infancy - The New York Times

On C.T.E. and Athletes, Science Remains in Its Infancy - The New York Times

by Benedict Carey

BEDFORD, Mass. — In a small room banked by refrigerators of preserved brains, a pathologist held a specimen up to the light in frank admiration. Then it was time to cut — once in half and then a thick slice from the back, the tissue dense and gray-pink, teeming with folds and swirls.

It was the brain of a professional running back.

“There,” said Dr. Ann McKee, the chief of neuropathology at the V.A. Boston Healthcare System and a professor of neurology and pathology at Boston University’s medical school, pointing to a key area that had an abnormal separation. “That’s one thing we look for right away.”

Over the past several years, Dr. McKee’s lab, housed in a pair of two-story brick buildings in suburban Boston, has repeatedly made headlines by revealing that deceased athletes, including at least 90 former N.F.L. players, were found to have had a degenerative brain disease called chronic traumatic encephalopathy, or C.T.E., that is believed to cause debilitating memory and mood problems. This month, after years of denying or playing down a connection, a top N.F.L. official acknowledged at a hearing in Washington that playing football and having C.T.E. were “certainly” linked.

His statement effectively ended a very public dispute over whether head blows sustained while playing football are associated with the disorder. But it will not resolve a quieter debate among scientists about how much risk each football player has of developing it, or answer questions about why some players seem far more vulnerable to it than others.

KEEP READING

Meet Ken Feinberg - the Master of Disasters // NY Observer

Wherein I get some "ink". - gwc
Meet Ken Feinberg - the Master of Disasters //NY Observer

“It’s certainly a triumph of branding. There’s no doubt about that,” said George Conk, a law professor at Fordham University and an expert on torts law. “He’s a dominant presence.”

"His real innovation may have been realizing that if you want a Resolution, you have to make sure everyone participates in a claims program. This means “you’ve got to offer just about everybody something, including people who have weak claims,” said Mr. Conk, the Fordham University professor. “You can’t pay fraudulent claims, but you can pay weak claims."

ABA Opposes Med-Mal Cap in Federal bill //TortsProf Blog

TortsProf Blog

The ABA has sent a letter to House Judiciary Committee chairman Bob Goodlatte voicing opposition to: (1) a $250,000 cap on noneconomic damages, (2) several liability, and (3) a provision allowing judges to reduce contingent fees for plaintiffs' attorneys. The ABA Journal has the story, including a pdf of the letter.

The Hogan Verdict

HERE is commentary by Michigan Law Professor Len Niehoff.

Gawker seems to have a good argument that Hogan knew he was being taped, and had no reasonable expectation of privacy. - gwc

The Hogan Verdict

by Nick Denton // Gawker Media

The decision by a Florida jury to grant $140 million in damages for a story on Gawker.com about a Hulk Hogan sex tape was extraordinary. The number is far larger than even the plaintiff himself had asked for in relief. It’s a huge pay-day for an indiscretion that would have been quickly forgotten, one among many in the professional wrestler’s personal life.

The enormous size of the verdict is chilling to Gawker Media and other publishers with a tabloid streak, but it is also a flag to higher courts that this case went wildly off the rails. The plaintiff’s lawyers, with the occasional assist from our witnesses, successfully painted Gawker as representative of an untrammeled internet that good and decent people should find frightening and distasteful. Emotion was permitted to trump the law, and key evidence and witnesses were kept from the jury.

A state appeals court and a federal judge have already held repeatedly that the 2012 commentary and short video excerpt, which joined an existing conversation and explored the public’s fascination with celebrity sex tapes, were newsworthy. We have had our day in trial court, and we lost. We will have our day back in appeals court, and we will be vindicated.

Hogan did not sue us, as he has claimed, to recover damages from the emotional distress he purportedly experienced upon our revelation in 2012 of a sexual encounter with his best friend’s wife, Heather Cole (then Heather Clem). It turns out this case was never about the sex on the tape Gawker received, but about racist language on another, unpublished tape that threatened Hogan’s reputation and career.

Moreover, the basis of his claim that he had a reasonable expectation of privacy during his sexual encounters with Heather Cole, then Bubba’s wife, was that Hogan didn’t know he was being filmed. From the documents released by the appellate court, it is now clear that this is contradicted by multiple statements Bubba made to FBI agents asserting that Hogan knew full well that Bubba had wired his bedroom for video and was filming. We were barred from presenting that crucial evidence to the jury, or asking Bubba how much his most intimate friend knew about the couple’s sexual practices.

Hogan initially blamed his friend for the tape’s release, but later settled his lawsuit against Bubba for the sum of $5,000 and a pledge to play the role that Hogan needed him to in the litigation against Gawker. Bubba complied, asserting his Fifth Amendment rights against self-incrimination to avoid answering our questions about Hogan’s role in the tape’s genesis; the trial court allowed him to keep his end of his settlement bargain and prevented us from putting him on the witness stand.

BP to blame for payment delays, not Deepwater Claims Administrator Juneau | Legal Examiner New Orleans

BP to blame for payment delays, not Deepwater Claims Administrator Juneau | Legal Examiner New Orleans

by Tom Young

Recently, Florida Senator Bill Nelson penned a letter to Deepwater Horizon Claims Administrator Patrick Juneau urging Mr. Juneau to speed up claims analysis. While the resolution of individual and business economic loss claims associated with BP’s disaster has been much too slow, the fault lies squarely at BP’s feet, not Mr. Juneau’s.

BP’s Brilliant Subterfuge


Judge Barbier of lead BP attorney Rick Godfrey (pictured above): “If anyone is trying to rewrite the Settlement Agreement, it is counsel for BP.”

In 2012, with BP’s enthusiastic urging, Claims Administrator Juneau and his staff processed and paid (if eligible) most claims within 60-90 days of filing. The company was all too happy to promote the program’s efficiencies as it sought judicial approval for the compact. Then, once the Settlement was officially blessed by Judge Barbier, BP went about attempting to systematically dismantle it.

Objective number one for the company was to slow down payments by any means possible. This included cooking up largely unfounded allegations of fraud and filing losing lawsuits that BP pressed all the way to the Supreme Court of the United States (which promptly told the company to go pound sand).

BP’s course reversal after Settlement approval was not lost on Judge Barbier:


“[I]f anyone is attempting to rewrite or disregard the unambiguous terms of the Settlement Agreement, it is counsel for BP. Frankly, it is surprising that the same counsel who represented BP during the settlement negotiations, participated in drafting the final Settlement Agreement, and then strenuously advocated for approval of the settlement before this Court, now come to this Court and the Fifth Circuit and contradict everything they have previously done or said on this issue. Such actions are deeply disappointing.” – Judge Barbier, December 24, 2013


Judge Carl Barbier questioned BP’s motives, saying the company’s position was “deeply disappointing.”

I have written before about BP saying one thing while doing the opposite. Unfortunately for the people of the Gulf, such is the company’s modus operandi.

Why the GOP’s Merrick Garland strategy could be a disaster for Republicans - Salon.com

Why the GOP’s Merrick Garland strategy could be a disaster for Republicans - Salon.com

by Andrew Koppelman (Northwestern Law School)


***The united front against Garland could change that. You can imagine one Democratic line of attack: They would declare that the Republican candidate wants to trust Trump to fill a Supreme Court vacancy – and that voters have to decide whether they love Trump as much as their Republican Senator or Senate candidate evidently does.

The attacks would be effective because they would obviously be accurate.

Trump has cited, as precedent for his proposed mass exclusion of Muslims, World War II Japanese-American internment camps, one of the nastiest human rights violations in America’s history. President Trump might be badly inconvenienced by a Supreme Court that took its job seriously. Civil liberties are a bother. Does your Republican Senator agree that it’s okay to put American citizens in concentration camps on the basis of their ancestry? If he doesn’t think that, why is he so keen to give a Supreme Court appointment to a man who does?

How segregation works in NYC schools /vox

http://www.vox.com/2016/2/16/10980856/new-york-city-schools-segregation

J&J hammered on hip implants //Legal Examiner

http://fortworth.legalexaminer.com/medical-devices-implants/jj-hammered-in-texas-over-its-depuy-pinnacle-line-of-metal-hip-implants/

PrawfsBlawg: Judge Garland and the Future of Human Rights Litigation

PrawfsBlawg: Judge Garland and the Future of Human Rights Litigation

by Seth Davis

 It’s hard to deny that Judge Merrick Garland, President Obama’s nominee to the Supreme Court, is “is an amazingly qualified, brilliant judge,” even for commentators who think he’s a “bad choice.” He shouldn’t be blocked by Senate Republicans. He probably will be, though perhaps we’ll see a lame-duck hearing and confirmation vote. For now, there’s much to see --- and like --- in his jurisprudence on the D.C. Circuit.

For instance, I’d say his dissenting opinion in Saleh v. Titan Corp. is one to like. The question in that case was whether Iraqi nationals who were abused at the Abu Ghraib military prison could sue private military contractors for wrongs that both President George W. Bush and President Obama “repeatedly and vociferously condemned.” The panel held they couldn’t, reasoning that “tort law is preempted on the battlefield.” Judge Garland objected that the “country’s legal system [should] take its ordinary course and provide a remedy for those who were wrongfully injured.” Individuals who “were beaten, electrocuted, raped, subjected to attacks by dogs, and otherwise abused by private contractors” should have a remedy under a state’s “traditional, generally applicable tort law.”

We shouldn’t lightly assume, in other words, that the United States’ foreign policy preempts an individual’s right to a remedy under state law. To the contrary, Judge Garland suggested, “facially neutral state tort law” may be an important source of remedies for international human rights violations.

If Judge Garland’s dissent in Saleh is any guide, then a Justice Garland might shift the future of human rights litigation in the United States. In recent years the Supreme Court has restricted human rights litigation under the Alien Tort Statute. In Kiobel v. Royal Dutch Petroleum Co., for example, the Court applied the presumption against extraterritoriality to limit claims in federal court under the ATS. State law might, however, step in to fill the remedial gap, as this symposium in the UC Irvine Law Review explored. In the “ordinary course,” as Judge Garland put it, our legal system “provide[s] a remedy for those who were wrongfully injured.” Whether the Court will let our system run its ordinary course in human rights cases is but one of many controversial questions that may be at stake with this