OTHERWISE: New S.E.C. Chair White should retreat, answer Judge Rakoff's questions - NJ Law Journal Editorial Board

OTHERWISE: New S.E.C. Chair White should retreat, answer Judge Rakoff's questions - NJ Law Journal Editorial Board:

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Federal Tort Claims Act covers jailer's sexual assault.

Kim Millbrook, a federal prisoner, was sexually assaulted by a guard.  Like Clarence Gideon 50 years ago, he filed a pro se complaint and cert petition.  Like Gideon he won in the United States Supreme Court.   In Millbrook v. United States of America (about which we commented at the time of oral argument in this post) the Supreme Court construed 28 USC 2680 (h) which contains a proviso (or exception to the exception from sovereign immunity).  The proviso is that though the United States is not liable for the intentional torts of assault, battery, false arrest, malicious prosecution, libel, slander, interference with contract,  the United States shall be liable for such intentional torts if an “assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution” consists of  “acts or omissions of investigative or law enforcement officers of the United States Government”.  Justice Thomas, writing for the court, explained that the U.S.A. is liable if the assaulting officer was acting within the scope of his/her employment - even if the investigative or law enforcement officer was not making an arrest or seizing evidence, at the time.


The case also provides an opportunity to consider how FTCA and diversity jurisdiction differ in their reliance on state law.

28 USC 2674  partially waives sovereign immunity:

The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances, but shall not be liable for interest prior to judgment or for punitive damages.

In diversity of jurisdiction cases (28 USC 1332) the court is guided by 28 USC 1652 which provides:
The laws of the several states, except where the Constitution or treaties of the United States or Acts of Congress otherwise require or provide, shall be regarded as rules of decision in civil actions in the courts of the United States, in cases where they apply.

The difference is significant.  In a diversity case the U.S. court is merely a neutral forum.  It bound (statutorily) to follow the law of the state whose applies (based on the applicable choice of law).  The U.S. Court does not establish any precedent that binds a state or its courts when the federal court is sitting via diversity jurisdiction.

But in a Federal Tort Claims Act cases 28 USC 2680 it is the liability of the United States that is at stake and the substantive law is a matter of federal law - that is it is a  federal question.  Since the U.S. does not have a common law the Congress `borrows’ or adopts the law of the place of the accident.  Once a federal court has determined liability under its understanding of the law of the state even a subsequent change in the law of the state does not change the result reached by the federal court.






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OTHERWISE: Anthony Lewis, Who Transformed Coverage of the Supreme Court, Dies at 85 - NYTimes.com

OTHERWISE: Anthony Lewis, Who Transformed Coverage of the Supreme Court, Dies at 85 - NYTimes.com:
ifty years ago the United States Supreme Court announced in Gideon v. Wainwright that the Sixth Amendment right to the assistance of counsel is so essential to a fair trial that government must provide a lawyer to a defendant who cannot afford one.

No one did more to celebrate the importance of the decision than did Times Supreme Court reporter and columnist Anthony Lewis, who died yesterday.


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Oil Spill Compensation - U.S. and China - Georgetown - April 3

OTHERWISE: The Doctor's New Prescription: A Lawyer - NYTimes.com

OTHERWISE: The Doctor's New Prescription: A Lawyer - NYTimes.com:



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Replevin for a lost dog

Judge Judy does justice!

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Guest Post: Parents Hold the Key to Concussion Awareness | NFL Concussion Litigation

Guest Post: Parents Hold the Key to Concussion Awareness | NFL Concussion Litigation:

By Brittany Beaumont

It takes less than ten minutes to reach pages eleven and twelve of Concussions and our Kids where just four convincing paragraphs serve as a wakeup call for any parent who has a child participating in youth sports. Written by Robert Cantu, M.D. and Mark Hyman (2012), this book presents solid documentation that concussions (especially multiple concussions or head injuries/trauma) should be taken seriously by parents and coaches alike. However, it appears the words from these esteemed authors are still falling on deaf ears. Not enough has been written to convince those, especially parents of aspiring young football players that it is time for the nation to wake up and demand that those in charge of full contact youth sports be held accountable for their lack of action (or reaction as the case may be) whenever a child is involved in a head injury.

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Torts Blog: Idaho Supreme Court refuses to adopt "baseball rule"

Torts Blog: Idaho Supreme Court refuses to adopt "baseball rule":
by Prof. Alberto Bernabe

"The Idaho Supreme Court recently declined to adopt the so-called "baseball rule” which is commonly used to release baseball park operators from liability based on the notion that spectators assume the risk of being hit by foul balls. The court reached the correct result, but it could have done more to clarify what has become a confusing area of the law.
It is often said that spectators assume the risk of getting hit by foul balls at baseball games and that, thus, those in charge of the park do not have a duty to protect them. 

Neither of the two parts of this statement is entirely correct. The problem is that the statement confuses the concept of duty – which is an element of the cause of action’s prima facie case – and assumption of the risk – which is an affirmative defense. The so–called “primary assumption of the risk” is simply another way of asking whether the defendant owes a duty to the plaintiff.  "

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Losses at sea: oil spills, marine pollution and maritime law in China | chinadialogue

Beijing-based Xia Jun, a member of the Zhongshi law firm, discusses the past decade's oil spill cases in China. - gwc
Losses at sea: oil spills, marine pollution and maritime law in China | chinadialogue:
by Xia Jun

"The rule of environmental law in China is making progress – and the situation is already better this year than it was last year. Even so, both government and civil resources for seeking damages are inadequate, law enforcement is weak and success is only seen in straightforward cases. These issues still need to be resolved.

China should be able to deal with the impact of oil slicks more effectively than it did during the 2006 Bohai spill, or the 2010 Dalian leak. Administrative and judicial procedures should be combined. But the government still habitually uses administrative measures to deal with pollution incidents, sacrificing the interests of the weak and the environment. There is still work to be done, by both the authorities and the Chinese people. "

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Fish farms protest oilfield restart - BUSINESS - Globaltimes.cn

Fish farms protest oilfield restart - BUSINESS - Globaltimes.cn: 

by Song Shengxia

"More than 200 farmers in North China's Hebei Province have petitioned the country's top economic planner to suspend offshore oil operations by US firm ConocoPhillips in Bohai Bay, farmers and lawyers confirmed Tuesday.

A total of 208 fish farmers in the Caofeidian district of Tangshan in Hebei, who claim to be victims of oil spills from the Conoco-operated field in Bohai Bay, are asking the National Development and Reform Commission (NDRC) to take back oil drilling rights from ConocoPhillips, according to a letter obtained by the Global Times Tuesday from lawyers acting on behalf of the farmers.
The Caofeidian farmers also asked the NDRC to order ConocoPhillips to compensate for losses caused by pollution from the oil spills.

They claimed they lost about 500 million yuan ($80.45 million) from damage to their fisheries, but unlike farmers in nearby Laoting county, they received no compensation, according to the letter.

The letter comes on the heels of ConocoPhillips resuming operation in the Penglai oilfield in February after the State Oceanic Administration (SOA) approved the field's revised development and production plan and environmental impact assessment following the oil spills. "


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