Reparations, from Minnesota to Mississippi - James Fallows - The Atlantic

What is the proper remedial response to the legacy of racial discrimination, de jure and de facto in America?

Reparations, from Minnesota to Mississippi - James Fallows - The Atlantic:

monument to the Duluth, Minnesota lynchings of 1930

'via Blog this'

Politicians’ Prescriptions for Marijuana Defy Doctors and Data - NYTimes.com

For one hundred years the FDA has sought to protect the country's food and drug supply from charlatans.  In 1962 the law was amended to require evidence of safety and effectiveness for new drugs.  Since about the same time courts have proclaimed that there is strict liability for mislabeled products.  Is it a good idea for legislatures to proclaim that marijuana cures what ails you when the law has actually forbidden systematic study to determine whether it does or not?  - gwc

Politicians’ Prescriptions for Marijuana Defy Doctors and Data - NYTimes.com:

by Catherine St,. Louis

New York moved last week to join 22 states in legalizing medical marijuana for patients with a diverse array of debilitating ailments, encompassing epilepsy and cancer, Crohn’s disease and Parkinson’s. Yet there is no rigorous scientific evidence that marijuana effectively treats the symptoms of many of the illnesses for which states have authorized its use.

Instead, experts say, lawmakers and the authors of public referendums have acted largely on the basis of animal studies and heart-wrenching anecdotes. The results have sometimes confounded doctors and researchers.

The lists of conditions qualifying patients for marijuana treatment vary considerably from state to state. Like most others, New York’s includes cancer, H.I.V./AIDS and multiple sclerosis. Studies have shown that marijuana can relieve nausea, improve appetite and ease painful spasms in those patients.

But New York’s list also includes Parkinson’s disease, Lou Gehrig’s disease and epilepsy, conditions for which there are no high-quality trials indicating marijuana is useful. In Illinois, more than three dozen conditions qualify for treatment with marijuana, including Alzheimer’s disease, lupus, Sjogren’s syndrome, Tourette’s syndrome, Arnold-Chiari malformation and nail-patella syndrome.

'via Blog this'

Supreme Court Strikes Abortion Clinic Buffer Zone Law in Massachusetts

Today the Supreme Court struck down as not sufficiently narrowly tailored a Massachusetts law that created a thirty five foot zone around abortion clinic entrances.  The judgement in McCullen v. Coakley was unanimous.  But Justice Antonin Scalia dissented from the majority opinion in which C.J. John Roberts joined with the liberals.  In typically sharp rhetoric Scalia objects to that part of the majority opinion that says the statute is not content-based, i.e. NOT aimed at anti-abortion protesters:

Today’s opinion carries forward this Court’s practice of giving abortion-rights advocates a pass when it comes to suppressing the free-speech rights of their opponents. There is an entirely separate, abridged edition of the First Amendment applicable to speech against abortion. See, e.g., Hill v. Colorado, 530 U. S. 703 (2000); Madsen v. Women’s Health Center, Inc., 512 U. S. 753 (1994).

I agree with Scalia that the measure is content-based.  But I would embrace a "separate" First Amendment jurisprudence for anti-abortion protests.  Because I don't think that people have a right to intrude on the privacy of people seeking medical attention, delivering pleas to not have an abortion, etc.  Of course a woman going to such a clinic may be seeking advise, birth control pills, post-op check up, a medically necessary abortion, or an elective one. In my view it is none of the bloody business of anyone else.  I would have voted to uphold the statute. - GWC


Supreme Court Strikes Down Law on Abortion Clinic Buffer Zones - NYTimes.com: 
by Adam Liptak

WASHINGTON — The Supreme Court on Thursday struck down a Massachusetts law that barred protests near abortion clinics.

The law, enacted in 2007, created 35-foot buffer zones around entrances to abortion clinics. State officials said the law was a response to a history of harassment and violence at abortion clinics in Massachusetts, including a shooting rampage at two facilities in 1994.

The law was challenged on First Amendment grounds by opponents of abortion who said they sought to have quiet conversations with women entering clinics to tell them about alternatives to abortion.

In 2000, the Supreme Court upheld a similar Colorado law in Hill v. Colorado. That law established 100-foot buffer zones outside all health care facilities, not just abortion clinics. Inside those larger zones, the law banned approaching others within eight feet for protest, education or counseling without their consent.

Massachusetts experimented with a similar law but found it inadequate.

Up to 100 children a year die from accidental shootings, research shows | World news | theguardian.com

Up to 100 children a year die from accidental shootings, research shows | World news | theguardian.com:

by Ed Pilkington

"The tragedy of children killed accidentally by guns in the US is laid bare in new research that shows that as many as 100 boys and girls aged 14 and under are dying each year, substantially more than federal statistics have previously suggested.

Everytown and Moms Demand Action for Gun Sense in America – affiliated groups that campaign for stronger gun laws – have studied the incidents of publicly reported unintentional gun deaths involving children in the period of a year from 15 December 2012 to 14 December 2013.

The report exposes a long list of lives cut short as a result of largely preventable calamities.

Like the one that befell two-year-old Sincere Smith in Conway, South Carolina, who was relaxing after a heavy meal of chicken and mac and cheese on Christmas day when he spotted an object on the living room table. It was a .38-caliber handgun that his father had bought two weeks before and had left on the table while he went to make a phone call. Sincere picked it up and fired a single shot through his own chest; he died en route to hospital."



'via Blog this'

Son of Halliburton : SCOTUSblog

Opinion analysis: Son of Halliburton : SCOTUSblog:

 "The eagerly awaited decision in Halliburton Co. v. Erica P. John Fund – before the Court for the second time – was finally handed down by the Supreme Court.  As usual, there is a little something for everyone.  What is unusual is that there were no dissents.  Rather, the Justices divided into three camps of three. 

 The question before the Court this time around was whether a defendant can defeat class action status by showing that market price was unaffected by an alleged misrepresentation.  The question arises because under the fraud-on-the-market (FOTM) theory, adopted by the Court in Basic, Inc. v. Levinson, investors can be presumed to rely on a public material misrepresentation about a stock that is traded in an efficient market because it is presumed to affect market price and because investors are presumed to rely on the integrity of the market.

 In a word, the answer to this question is YES – defendants may seek to rebut the presumption for purposes of defeating certification."



'via Blog this'

China's Courts - how/do they work?

People often picture China as a lawless place or one run by the fiat of party leaders.  The situation of course is far from that.  the Supreme People's Court has new directed that all courts post their decisions online.  The SPC site is HERE (in Chinese of course).  And although there is not a system of precedent the SPC has begun to designate "guiding cases", now available HERE in translation from Stanford Law School.  IP litigation of course is a big concern of stakeholders. The Supreme Peoples court hosts a database of IP cases.   CIELA provides analytics.  It describes itself as:

Richard Posner & NAACP v. Button — A Short History - Concurring Opinions

We see our task as lawyers as working out the logic of the law and applying it to the facts.  But the law embraces competing values, so one must choose which to elevate and which to subordinate.  For many years stirring up litigation was deemed an evil.  Virginia passed five laws which took aim at such practices.  but their real target was the NAACP which was the leading force in the courts supporting Brown v. Board of Education.  So in Richmond, former capital of the Confederate States of America, lawyers devised a facially neutral policy that would put the NAACP out of business in the name of regulating the practice of law: plainly a state function.

Bt contingencies determine fate. The original vote was 5-4 in favor of Virginia but the resignation of Justice Whittaker and the severe stroke suffered by Felix Frankfurter changed the composition of the Court - and the result.  Ronald Collins digs into the back story. - gwc

h/t John Steele, Legal Ethics Forum 

Richard Posner & NAACP v. Button — A Short History - Concurring Opinions:

by Ronald K. Collins

"The case’s original name was NAACP v. Patty, which began in 1957. After cert. was granted, the case name changed to NAACP v. Gray. Later it would be changed to Button, the last name of the Virginia Attorney General at the time. The controversy involved a challenge to five Virginia laws which, according to Fourth Circuit Court Judge Morris Aimes Soper, “were enacted [in 1956] for the express purpose of impeding the integration of the races in the public schools of the state which the plaintiff corporations are seeking to promote.” The laws in question banned the encouragement of certain kinds of litigation (“barratry” statutes) and the solicitation of clients (including in pro bono cases) and/or the financing of litigation (“champerty” statutes). The lawyer who represented the NAACP was Robert L. Carter (1917-2012), Thurgood Marshall’s chief legal assistant (and later General Counsel to the NAACP). By 1957, recalled Carter in his memoir (A Matter of Law), the group was involved in 25 cases in various states employing barratry and champerty laws aimed at halting civil rights litigation. Henry T. Wickham (1920-2008) represented the state of Virginia. In his obituary it was noted that Mr. Wickham “served as a special assistant to former Virginia Attorney General J. Lindsay Almond Jr. representing Virginia in an effort to preserve segregated public schools” in Brown v. Board.

→ For an informative and thoughtful account of Button, see Harry Kalven, Jr., The Negro and the First Amendment 75-90 (1965).

The Hand of Fate


Robert Young Button was the Attorney General of Virginia (Dem. –1962-1970) who backed policies of Massive Resistance to prevent public school desegregation (see short video clip here)
When it came time for a conference vote in the Button case, Chief Justice Earl Warren, predictably, voted to reverse. “The purpose of the statute is obviously to circumvent Brown,” he said. Justice Hugo Black agreed. “This is part of a scheme to defeat the Court’s order, and sooner or later we will have to grapple with these problems in those terms. The NAACP is finished if this law stands.” 

But Justice Felix Frankfurter pushed back. “I can’t imagine a worse disservice than to continue being the guardians of the Negroes. . . . There is nothing in the record to show that this statute is aimed at Negroes as such.” Justices Tom Clark and Charles Evans Whittaker agreed. “To strike this law down, we would have to discriminate in favor of Negroes,” said Clark, to which Whittaker added: “We should be color blind on this law.” 

 Warren added up the votes. It was a five-to-four split in favor of the state of Virginia. Justice Frankfurter eagerly began work on his majority opinion upholding Virginia’s law—the laws that made the NAACP’s brand of non-pecuniary solicitation and financing of litigation a disciplinary offense that could result in disbarment. (For a discussion of Frankfurter’s early role in the case, see Mark V. Tushnet, Making Civil Rights Law 277-278 (1994).)"



'via Blog this'

U.S. Patent Office Cancels Redskins Trademarks For Being 'Disparaging To Native Americans'

For twenty two years the Washington Redskins football team owners have fought to defend their name against assertions by Native Americans that the name is disparaging.  That is grounds for cancellation of a trademark.  The United State Patent and Trademark Office did just that in a 1999 decision.  But the decision was overturned on appeal on grounds that the time to object had expired.  A new challenge was filed in 2006.  Today the TTAB again ruled that the name is disparaging and canceled the trademark.  The decision is HERE. - gwc

U.S. Patent Office Cancels Redskins Trademarks For Being 'Disparaging To Native Americans':

by Eric Lach // Talking Points Memo


 "The United States Patent and Trademark Office has cancelled six of the Washington Redskins' trademark registrations, because they "were disparaging to Native Americans at the respective times they were registered."

The agency ruled Wednesday in a case brought by five Native Americans, who sought cancellation of the team's trademark registrations, arguing they violated the prohibition on registering "marks that may disparage persons or bring them into contempt or disrepute," as the agency wrote in its ruling.

"We decide, based on the evidence properly before us, that these registrations must be cancelled because they were disparaging to Native Americans at the respective times they were registered," the agency wrote.

In emailed statements, the plaintiffs’ attorneys lauded the ruling as "historic.""



'via Blog this'

Competing Values: Preserving Litigant Autonomy in an Age of Collective Redress by Linda S. Mullenix :: SSRN

The right of a client to consent to judgment, settlement, etc. is deeply embedded in the lore and practice of lawyers. It is enshrined in RPC 1.2. But the reality is that where claims are massed litigant control is minimal - whether for a small number of claimants  against a limited fund (as in an underinsured vehicle operated carelessly), against an insolvent where claims are aggregated and prioritized in bankruptcy; or mass tort claimants as in the BP Gulf oil spill or mass drug actions.

Linda Mullenix explores this problem through an examination of the work of District Judge Jack Weinstein. - gwc 

Competing Values: Preserving Litigant Autonomy in an Age of Collective Redress by Linda S. Mullenix :: SSRN:

In one of the most famous law review articles ever written, The Role of the Judge in Public Law Litigation, Professor Abram Chayes in 1976 described a paradigm shift away from bipolar traditional litigation to a new model of public law litigation. Embedded in the traditional model was a deeply-held notion of litigant autonomy – that is, a fundamental right of any person to appear in his individual capacity to advocate for remediation of alleged wrongdoing. The concept of litigant autonomy reflected certain process and dignity ideals, including the psychological and cathartic values in individual representation. 
In his analysis of a changed litigation landscape, Professor Chayes concluded: “...from the perspective of the traditional model, the [new public law] proceeding is recognizable as a lawsuit only because it takes place in a courtroom before an official called a judge.” Judge Jack Weinstein’s judicial philosophy and class action jurisprudence were forged during this period, and he readily characterized mass tort cases as a new form of public law litigation. There is perhaps no judge more identified with the aggregate litigation movement of the late twentieth century and, in turn, Judge Weinstein’s landmark efforts have inspired generations of acolytes who have subscribed to and implemented his views on aggregate claim resolution.
Throughout the 1980s and 1990s judicial experiments addressing the efficient resolution of mass tort litigation were undergirded by a jurisprudential debate pitting collective redress mechanisms against arguments for litigant autonomy. By the end of the twentieth century, the proponents of aggregate claim resolution had prevailed over competing theories of litigant autonomy. However, arguments centered on litigant autonomy have endured and received renewed advocacy in era of twenty-first century of informal aggregation techniques.
This article suggests that Judge Weinstein’s jurisprudential odyssey illuminates the interesting tension between litigant autonomy and collective redress. Ironically, the judge so closely identified with compassionate treatment of individuals became the leading advocate for collective redress. The article discusses how, in the United States, concepts of collective redress and aggregate settlements prevailed over notions of litigant autonomy. In light of this, the article questions whether it is worth revisiting this debate and the values embraced by litigant autonomy, which values largely have been displaced by the triumph of aggregate claim resolution. 
The article concludes with reflections on the current European movement for collective redress mechanisms. EU countries have seriously considered the debate between collective redress and litigant autonomy, and have concluded – unlike the United States – that any emerging EU collective redress model must preserve the deeply-held European civil law notion of the fundamental right to litigant autonomy. The EU experience suggests a compromise means for implementing collective redress regimes while preserving this fundamental right.

This is a draft paper as part of the 20th Annual Clifford Symposium on Tort Law and Social Policy, In Honor of Judge Jack Weinstein: Judge Jack Weinstein's Impact on Civil Justice in America

'via Blog this'

UPDATED: NJ Senate panel approves Rabner, Solomon for Supreme Court | NJ.com

With yesterday's confirmation of Chief Justice Stewart Rabner and the newly appointed Lee Solomon the New Jersey judiciary crisis has abated.  It was created when on ideological and political grounds Gov. Chris Christie rejected two justices up for tenure.  that violated a sixty year old practice.  Judges were nominated for tenure after their first seven year term only if there had been bad behavior on or off the bench.

Although the Court has been nudged to the right, it has not - and now will not - repudiated its landmark open housing and school funding decisions.  Christie's plan to remake the Supreme court has been defeated.  There remains one vacancy but that is held by the moderate liberal senior Appellate Judge Mary Catherine Cuff who the Governor and Democrat leaders agreed may remain in place until she reaches mandatory retirement age in 2017.

Much work remains.  There are over forty vacancies in the state's 420 member Superior Court bench.  A constitutional amendment to grant tenure except for cases of misconduct will likely lose momentum, though extension of the mandatory retirement age of seventy may gain some force.

The Court's next crisis will come soon when the legality of the Governor's proposed default on pension obligations reaches the court.  And after that the court will have to decide the constitutionality of a statute that permits recall of judges over the mandatory retirement age.That measure has long helped the courts function despite numerous vacancies. - gwc

NJ Senate panel approves Rabner, Solomon for Supreme Court | NJ.com:

by Salvador Rizzo //The Star Ledger

A state Senate panel cleared Chief Justice Stuart Rabner for a tenured term on the New Jersey Supreme Court today, and approved Superior Court Judge Lee Solomon’s nomination to become an associate justice.

After a day of intense questioning by the Senate Judiciary Committee, both nominations now head to the full Senate. Rabner, 53, and Solomon, 59, are expected to win final confirmation, the result of an agreement between Gov. Chris Christie and Senate President Stephen Sweeney (D-Gloucester).

Many legal observers doubted that the Republican governor — an outspoken critic of the Supreme Court and its rulings on school financing and affordable housing — would reappoint the Democratic chief justice.

But Christie gave Rabner a strong vote of confidence last month, clearing the way for him to lead the high court until he reaches the mandatory retirement age of 70, in 2030. In return, Democrats agreed to elevate Solomon to one of two court vacancies. A seventh seat remains to be filled.

"I think you have all the necessary skills and temperament to be the best chief justice that the state has ever seen," Sen. Nicholas Scutari (D-Union), the chairman of the Judiciary Committee, told Rabner.

'via Blog this'