Wednesday, October 1, 2014

Brain Injury Docs Seek Voice in NFL Concussion Settlement


The Brain Injury Association of America has moved to intervene as a friend of the court in the NFL concussion litigation.  Federal District Judge Anita Brody approve the proposed settlement as fair for the agreement to become effective

In its Memorandum of Law supported by the declaration of Doctors Brent Masel and Gregory O'Shanick two specialists in traumatic brain injury, the BIAA offers its aid to the court.  The Association is skeptical of the proposed settlement on two counts:

1) Numerous physical and behavioral consequences of TBI are excluded
from the list of qualifying diagnoses for treatment and compensation
under the settlement.

The physicians explain that a "mild TBI, also known as a concussion, is a complex pathophysiological process induced by biomechanical forces to the head or to another part of the body that transmit to the head. The injury produces an alteration of brain function that results in a wide range of neurological, physical, cognitive, and neuropsychological impairments. These impairments can appear on an intermittent or persistent basis immediately or as many as ten or more years after injury."

2) The settlement’s approach to diagnosis of neurocognitive impairment
is deeply flawed and will serve to exclude retired NFL players and
limit their access to medical benefits and compensation.

Masel and O'Shanick explain that the
"determination of eligibility is heavily weighted towards those with severe memory dysfunction and/or evidence of neuromuscular abnormality, which is reflected in the reliance on neuropsychological evaluation in isolation from other indices of functional impairment in day-to-day settings (including information from reliable family members, etc.). In addition, the specification of a basic neurological evaluation excludes the abundance of literature on the multiplicity of other neurological abnormalities potentially present after mild TBI that would be undetected by a “basic” neurological examination. To be maximally effective at identifying those players with residual deficits, it is well accepted by the brain injury professional community that an approach that is more holistic, human-based, and less linguistically reliant is preferred. A more broadly based performance assessment that will not under-estimate pre-morbid intelligence for a personal baseline TBI comparison is needed. Such subtleties reinforce the need for clinical experience to make proper judgment in these assessments."

Detailing financial links between doctors and drug companies // NY Times

CMS.gov Centers for Medicare & Medicaid Services
The typical TV ad for a drug - after dutiful sotto voce compliance with FDA requirement that reported complications be stated - ends with the words "talk to your doctor".  Perhaps they should be compelled to add "we already have and he's on board". - gwc

Detailing Financial Links of Doctors and Drug Makers - NYTimes.com:



Pharmaceutical and device makers paid doctors roughly $380 million in speaking and consulting fees, with some doctors reaping over half a million dollars each, during a five-month period last year, according to an analysis of federal data released Tuesday. Other doctors made millions of dollars in royalties from products they helped develop.

The data sheds new light on the often murky financial ties between physicians and the health care industry. From August to December 2013, drug and device companies made 4.4 million payments to more than half a million health care professionals and teaching hospitals — adding up to about $3.5 billion.

Tuesday, September 30, 2014

Federal Judge Rules Against Obamacare Subsidies

Federal Judge Rules Against Obamacare Subsidies:
"BySAHIL KAPUR //Talking Points Memo , SEPTEMBER 30, 2014

 A federal judge in Oklahoma ruled Tuesday that Obamacare subsidies provided on the federal HealthCare.gov exchange are invalid, agreeing with a ruling by a three-judge D.C. Circuit Court of Appeals panel against the subsidies. The ruling, along with the fallout from the D.C. Circuit decision, could be a potentially significant defeat for the Obama administration. "The court holds that the IRS Rule is arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law ... in excess of statutory jurisdiction, authority, or limitations, or short of statutory right ... or otherwise is an invalid implementation of the ACA, and is hereby vacated," U.S. District Court Judge Ronald A. White wrote in his opinion. White, appointed by George W. Bush in 2003, put his ruling on hold pending an expected appeal at the 10th Circuit Court of Appeals by the Obama administration. That means Obamacare subsidies will continue to flow, for now. An Obama administration official criticized the ruling and vowed to appeal it.
 "The district judge in the Oklahoma case made a decision that is inconsistent with the text of the statute, the clear intent of Congress, common sense, and the Fourth Circuit panel’s unanimous contrary ruling on the same issue," the official said. "[The Justice Department] has indicated that it will be appealing the decision. For people getting premium tax credits today, nothing has changed: tax credits remain available." The ruling in Pruitt v. Burwell marks the first victory for the challengers in a district court; two other federal judges sided with the government. The administration won the case at the 4th Circuit Court of Appeals and is preparing for a full court hearing on Halbig v. Burwell at the D.C. Circuit (which vacated the three-judge panel's ruling) in December, where the White House has an edge."

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Thursday, September 25, 2014

Mercketing - Frank Pasquale // Concurring Opinions

Mercketing - Concurring Opinions:
BY FRANK PASQUALE · MAY 15, 2009 
In an era of information overload, how can a drug marketer get its message across? One new method is creating its very own “journal”, as Merck and Elsevier did in Australia: From 2002 through 2005, the Australian affiliate of Merck paid the Australian office of Elsevier, an academic publisher, to publish eight compilations of scientific articles under the title Australasian Journal of Bone and Joint Medicine, a spokesman for Elsevier said.
 Elsevier issued a statement last week acknowledging that its Australian office had created paid-for compilations “that were made to look like medical journals and lacked the proper disclosures” of their drug company sponsors and calling such practices “unacceptable.” A company spokesman said Elsevier believed that one of the Merck issues was distributed to 20,000 doctors in Australia while other issues went to about 10,000 doctors.
Thus the current gallows humor in the halls of research: “Is medical science for sale?” “No, its current owners are perfectly happy with it.”*"

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Tuesday, September 23, 2014

The Ultimate Wrongdoer: The Arab Bank



A Brooklyn federal court jury has found the Jordan-based Arab Bank liable for facilitating attacks on civilians in Israel during the "second intifada".
I don't know that I would call the Arab Bank the ultimate wrongdoer as does Jon Gelman reporting on the recent jury verdict against the Arab Bank for laundering money for Palestinians who carried out suicide bombings in Israel.  I would say they have been held secondarily liable.  I consulted in a similar case brought by the victims of a bombing in Tel Aviv by Palestine Islamic Jihad.  The plaintiffs in Wultz v. Bank of China alleged that BOC should have known that the money deposited into Guangzhou branch was being funneled to PIJ, a militia which carried out attacks on civilians.  I addressed their potential liability under Chinese tort law for aiding and abetting.  The secondary liability claim survived a motion to dismiss but fell  on statute of limitations grounds.  The BOC litigation continues before Judge Shira Scheindlin as plaintiffs fight tooth and nail to obtain the discovery they need to establish liability under the Anti-Terrorism Act. - gwc

Workers' Compensation: The Ultimate Wrongdoer: The Arab Bank: "
by Jon Gelman
Yesterday a persevering plaintiff's legal team, in a landmark case, was able to obtain a verdict against an international bank that handled funds used by terrorists. It has been a decade long legal battle to seek justice against an ultimate wrongdoer. The determination of the the same lawyers who mounted successful cases against: the asbestos industry, big tobacco and lead paint companies, once again achieved victory in the civil justice system. While workers' compensation is a primary and limited payment of benefits, the real force for potential change in behavior is the responsibility imposed through litigation in the civil justice system against the ultimate wrongdoer.
The lawyers at Motley Rice who fought the arduous task against the Arab banks have accomplished a monumental victory that will all benefit mankind.  They report:
 "The eleven member jury agreed with plaintiffs’ claims that Arab Bank knowingly and systematically provided financial support to the leadership of Hamas and to the families of terrorist operatives including suicide bombers.
Motley Rice LLC represents nearly 20 U.S. citizens injured in suicide bombings and other terrorist attacks carried out by Hamas in Israel and the Palestinian Territories, in addition to dozens of other American victims of terrorism carried out by other groups, such as the Palestinian Islamic Jihad, and thousands of foreign plaintiffs under the Alien Tort Statute also pursuing claims against Arab Bank.

“We are so pleased that these plaintiffs have achieved justice after this brutal ten-year battle. Today’s verdict is a testament to their fortitude and determination,” said Motley Rice anti-terrorism and human rights attorney Michael Elsner, who represents plaintiffs in the case. “The late Motley Rice co-founder Ron Motley filed this action back in 2004. His passion for justice and his trust in jury trials was realized today. We all have a role to play in preventing terrorism in whatever sector we operate. It is now clearer than ever that this obligation extends to banks.”
“I strongly believe that this jury’s verdict marks a critical point in history and hopefully a turning point in the war against terrorism, especially now that we are faced with the rise of more terrorists,” stated Motley Rice client Joshua Faudem, who was injured in the Mike’s Place suicide attack bombing in Tel Aviv, Israel, on April 30, 2003. “By cutting off the financial support for terrorism, we are able to hurt terrorists the most. Without funding, they are not able to have the means to purchase equipment, bombs or arms, gain access to carry out violent acts or to create an elaborate system of support. I am proud to be part of this historic case.”"

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Prosser and his Influence // Abraham and White

William L. Prosser

Kenneth S. Abraham and G. Edward White have done us the favor of assessing “Prosser and his Influence”.  Prosser is, of course, William Prosser - the legendary torts treatise writer and ALI 2d Restatement of Torts Reporter.  After a brief biographical sketch (he was no charmer and no progressive) the Virginia law professors analyze the strategy and style of Prosser’s torts treatise as a window on his outsized influence on the law.   Abraham and White identify a method that could be called “boldly asserted, plausibly maintained”.
By identifying “emerging trends” in the law - such as the torts of invasion of privacy and intentional infliction of emotional distress (IIED) - Prosser sought to give doctrinal coherence to the cacophony of tort law.  The project was welcomed by lawyers who saw opportunities to explain and advance the law by doctrinal argument.  This was a much more promising tool than the anarchy offered by Legal Realists who saw only contending forces rather than logical development in the law.  His assertions often had less support than his confident but carefully qualified language suggested.  But he was perspicacious in many respects about how the law would develop.  Prosser’s recognition - and advocacy - of the torts of IIED and breach of privacy laid the foundation for important developments in recognition of dignitary harms, such as the concept of the “hostile environment” in workplace discrimination actions brought by women and ethnic minorities.  - gwc

Prosser and His Influence

http://ssrn.com/abstract=2484043

Kenneth S. Abraham 

 

University of Virginia School of Law

G. Edward White 

 

University of Virginia School of Law 

August 20, 2014

Journal of Tort Law, Forthcoming 
Virginia Public Law and Legal Theory Research Paper No. 2014-51 

Abstract:      

This Article focuses on the rhetorical strategies employed by William L. Prosser in presenting overviews of tort law doctrines in his celebrated Handbook of the Law of Torts, which was first published in 1941 and went through three additional editions between that date and 1971. We devote special attention to Prosser’s treatment of two relatively novel actions, intentional infliction of emotional distress and privacy, in which Prosser’s conceptualization of the elements and scope of each of the actions was influential in their adoption by numerous jurisdictions.

We also explore the sources of Prosser’s influence among his contemporaries in the legal profession in the three decades beginning in the 1940s. Prosser was unquestionably the leading torts scholar of his time: his Handbook was regarded as the authoritative torts treatise of his day, his Torts casebook was the most widely adopted in the nation, and he was the principal Reporter for the Second Restatement of Torts, which was first published in 1965. We survey the reaction of reviewers to the first edition of his treatise, which was uniformly favorable, serving to establish Prosser’s Handbook as the equivalent of a masterpiece. We also attempt to demonstrate, through a close reading of the paragraphs in which Prosser sought to make generalizations about tort doctrines, the way in which he sought to create an impression of doctrinal order that was not quite consistent with the cases he cited as support for his doctrinal propositions. Finally, we contrast the implicit criteria for scholarly visibility and influence under which Prosser forged his reputation with the quite different criteria operating in the contemporary legal academy, and seek to provide explanations for the origins of those sources of influence.

Monday, September 22, 2014

Repetition again* | xpostfactoid

Repetition again* | xpostfactoid:
I share in the general admiration for the tour de force in gotcha editing pasted below the jump -- so much so that I've added its author to my blogroll.  But of course I want to add my two cents.
Embedded image permalink
In his book ‘Simply English’, Simon Heffer recommends cutting redundant words. Well, he’s convinced me.
Freeman is no pedant. His point is not that his victim, Daily Telegraph editor and prescriptive grammarian Simon Heffer, was not as concise as humanly possible in his concision admonition. In a followup post, Freeman adds that while Heffer "doesn't follow his own advice"
Whether that’s a fault in his writing or a fault in his advice – or a bit of both – you can judge for yourself. Personally, I don’t think filler words are “unpardonable” and I don’t think you should cut every word that isn’t needed to preserve meaning and clarity. Redundancies may improve the rhythm or allow flashes of the author’s personality to shine through. Some of his sentences simply read better without the kind of cuts he claims to insist on.

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Left-Evangelicalism and the Constitution - Harvard Law Reivew Forum

Cover for The Evangelical Origins of the Living Constitution
Left-Evangelicalism and the Constitution - Left-Evangelicalism and the Constitution:
book review by Andrew Koppelman
The Evangelical Origins of the Living Constitution. By John W. Compton. Cambridge, Mass.: Harvard University Press. 2014. Pp. 272. $45.00.

 American constitutional law has, in many ways, abandoned the vision of the Framers. The original Constitution prohibits states from “impairing the Obligation of Contracts,”1× 1. U.S. Const. art. 1, § 10, cl. 1. but claims based on this provision, which was energetically enforced in the nineteenth century, today rarely succeed. Persons may not “be deprived of life, liberty, or property, without due process of law,”2× 2. Id. amend. V. but states can enact legislation that radically diminishes its value. The power to “regulate Commerce . . . among the several States”3× 3. Id. art. I, § 8, cl. 3. has nearly become a general federal police power.
This is a radical change from the law that prevailed until the early twentieth century. That law protected property, contract, and interstate transportation of goods from legislative interference, and sharply limited Congress’s power to regulate the interstate economy. The transformation is often attributed to the New Deal, when judges appointed by Franklin Roosevelt are thought to have abruptly discarded all these rules. Professor John Compton’s important book, The Evangelical Origins of the Living Constitution, shows that the change started within a few decades of the founding. In response to pressure from evangelicals who wanted to ban alcoholic beverages and gambling, the Court relaxed the preexisting constitutional rules.
The consequence was a growing doctrinal incoherence, with police powers that, once acknowledged, could not be limited in any sensible way. The New Deal judges were simply amputating doctrines that had already become gangrenous. Compton’s narrative offers a new perspective on originalism. It shows the folly of trying to read into the Constitution ideas of the founding generation that are not in the text. A flexible Constitution, with constructed interpretive rules that are open to judicial revision in light of experience, is both more democratic and more consistent with the Constitution’s fundamental purposes. His story also shows why the American left should reconsider its hostility toward morals legislation and religiously motivated political action.
Compton’s narrative offers a new perspective on originalism. It shows the folly of trying to read into the Constitution ideas of the founding generation that are not in the text. A flexible Constitution, with constructed interpretive rules that are open to judicial revision in light of experience, is both more democratic and more consistent with the Constitution’s fundamental purposes. His story also shows why the American left should reconsider its hostility toward morals legislation and religiously motivated political action.
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Peruta, the Home-Bound Second Amendment, and Fractal Originalism //Harvard Law Review Forum

Peruta, the Home-Bound Second Amendment, and Fractal Originalism:
by Darrell A.H. Miller // Harvard Law Review Forum
Second Amendment disputes used to cleave along one dimension: collective versus individual rights.  No more.  Ever since a majority of the Justices of the United States Supreme Court broke in favor of individual rights in District of Columbia v. Heller1and McDonald v. City of Chicago,2 tremendous litigation pressure has fragmented Second Amendment theory and doctrine.  The pressure is unlikely to ease soon.  Motivated parties, well-financed advocacy organizations, and the prospect of attorneys’ fees guarantee that every question of who, what, where, when, and why concerning the right to keep and bear arms is going to be asked, and will demand an answer.
Currently, the most pressing doctrinal question splitting the circuits, at the broadest level of generality, is whether the Second Amendment right to keep and bear arms extends beyond the home.  The Ninth Circuit recently has entered that debate.  In Peruta v. County of San Diego,3 a divided three-judge panel of the Ninth Circuit held that the Second Amendment is not home-bound.  Judge O’Scannlain, writing for the majority, held that the Second Amendment scope includes a right to carry firearms for confrontation in the streets.  The state of California has sought en banc review.  Petitions for certiorari are pending in similar cases.  It is likely we will see a Supreme Court resolution to this issue in the next few years.
RELATEDDoes the Second Amendment Protect Firearms Commerce?by Good Cause Requirements for Carrying Guns in Public by The Second Amendment as a Normal Right by 
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China Clamps Down on Web, Pinching Companies Like Google - NYTimes.com

One of the most appealing things about China and the Chinese for me is there eagerness to get to know the rest of the world.  So it is frustrating for me - and self-limiting for China - that the Communist Party so lacks confidence that they have constructed the "Great Firewall".  It obstructs - by design - my abilit to easily exchange information with my fellow academics.  They cannot, for example, read my blogs, nor reliably receive email sent via Google's gmail. - gwc
China Clamps Down on Web, Pinching Companies Like Google - NYTimes.com

HONG KONG — Google’s problems in China just got worse.

As part of a broad campaign to tighten internal security, the Chinese government has draped a darker shroud over Internet communications in recent weeks, a situation that has made it more difficult for Google and its customers to do business.

Chinese exporters have struggled to place Google ads that appeal to overseas buyers. Biotechnology researchers in Beijing had trouble recalibrating a costly microscope this summer because they could not locate the online instructions to do so. And international companies have had difficulty exchanging Gmail messages among far-flung offices and setting up meetings on applications like Google Calendar.

“It’s a frustrating and annoying drain on productivity,” said Jeffrey Phillips, an American energy executive who has lived in China for 14 years. “You’ve got people spending their time figuring out how to send a file instead of getting their work done.”

The pain is widespread. Two popular messaging services owned by South Korean companies, Line and Kakao Talk, were abruptly blocked this summer, as were other applications like Didi, Talk Box and Vower. American giants like Twitter and Facebook have long been censored by China’s Great Firewall, a system of filters the government has spent lavishly on to control Internet traffic in and out of the country.

Continue reading the main story
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Sunday, September 21, 2014

Pharma giant GSK pays $500 Million bribery fine in China, avoids FCPA


The Times reports that China's bribery investigation of the British pharmaceutical global giant Glaxo Smith Kline has ended with a quick trial, a $500 million fine, expulsion of its in-country manager, and a public apology by the company. Although similar sums have been extracted for marketing abuses in the U.S., it is an eye-catching figure for China.
Such a large fine is not explicitly authorized in the PRC's criminal law against bribery.  But in the year 2000 the Supreme People's Court issued regulations regarding use of fines in criminal casesArticle 2 provides that fines should be assessed according to the circumstances, including the unlawful gains realized, the harm done,
第二条
人民法院应当根据犯罪情节,如违法所得数额、造成损失的大小等,并综合考虑犯罪分子缴纳罚金的能力,依法判处罚金。刑法没有明确规定罚金数额标准的,罚金的最低数额不能少于一千元。
Article 2.  The People's Courts according to the circumstances of the crime,  the amount of the unlawful gain, the degree of harm it causes, and making an overall assessment of the criminal offender's ability to pay,  shall impose a fine according to law .  If the criminal law does not explicitly state a standard amount of fine, the amount of the fine cannot be less than 1,000 RMB. (trans. - GWC)
Another interesting aspect of the remedy is the public apology to the "people of china". (below) The company admits only paying bribes to "non-governmental" persons like hospitals and doctors.  Given the extent of  state institutions there is a plea bargained element there, avoiding a GSK admission of violation of the U.S. Foreign Corrupt Practices Act. - gwc
by Keith Bradsher and Chris Bucklen // NY Times  September 19, 204
 "Chinese authorities accused Glaxo of bribing hospitals and doctors, channeling illicit kickbacks through travel agenciesand pharmaceutical industry associations — a scheme that brought the company higher drug prices and illegal revenue of more than $150 million. In a rare move, authorities also prosecuted the foreign-born executive who ran Glaxo’s Chinese unit.After a one-day trial held in secrecy, the court sentenced Glaxo’s British former country manager, Mark Reilly, and four other company managers to potential prison terms of up to four years. The sentences were suspended, allowing the defendants to avoid incarceration if they stay out of trouble, according to Xinhua. The verdict indicated that Mr. Reilly could be promptly deported. The report said they had pleaded guilty and would not appeal."
GSK plc Statement of Apology to the People of China

Following a comprehensive investigation by the Chinese judicial authorities, GSK China Investment Co. Ltd (GSKCI) has been identified according to Chinese law to have offered money or property to non-government personnel in order to obtain improper commercial gains, and has been found guilty of bribing non-government personnel. GSK plc fully accepts the facts and evidence of the investigation, and the verdict of the Chinese judicial authorities. Furthermore, GSK plc sincerely apologises to the Chinese patients, doctors and hospitals, and to the Chinese Government and the Chinese people. GSK plc deeply regrets the damage caused. GSK plc also apologises for the harm caused to individuals who were illegally investigated by GSKCI.

The illegal activities of GSKCI are a clear breach of GSK plc’s governance and compliance procedures; and are wholly contrary to the values and standards we expect from our employees. It is deeply disappointing that these issues were not identified and addressed. GSK plc has reflected deeply and learned from its mistakes, has taken steps to comprehensively rectify the issues identified at the operations of GSKCI, and must work hard to regain the trust of the Chinese people. Today, GSK plc makes a further commitment to the Chinese government and people that GSKCI will take tangible actions to establish itself as a model for reform in China’s healthcare industry: by continuing to invest in China and supporting China's scientific development; and by further development of innovative new medicines and vaccines for diseases prevalent in China. GSKCI will also increase access to its products in both city and rural areas of China through greater expansion of production and through price flexibility.
This long-term development strategy of GSK plc will promote the future health and well-being of the Chinese people, and positively contribute to China’s economic and social development.

Saturday, September 20, 2014

How the Ray Rice scandal unfolded between the Baltimore Ravens, Roger Goodell and the NFL - ESPN

How the Ray Rice scandal unfolded between the Baltimore Ravens, Roger Goodell and the NFL - ESPN: "The seven-month scandal that is threatening Roger Goodell's future as NFL commissioner began with an unexpected phone call in the early morning hours on a Saturday in February. Just hours after running back Ray Rice knocked out his then-fiancée with a left hook at the Revel Casino Hotel in Atlantic City, New Jersey, the Baltimore Ravens' director of security, Darren Sanders, reached an Atlantic City police officer by phone. While watching surveillance video -- shot from inside the elevator where Rice's punch knocked his fiancée unconscious -- the officer, who told Sanders he just happened to be a Ravens fan, described in detail to Sanders what he was seeing. Sanders quickly relayed the damning video's play-by-play to team executives in Baltimore, unknowingly starting a seven-month odyssey that has mushroomed into the biggest crisis confronting a commissioner in the NFL's 94-year history."

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Wednesday, September 17, 2014

Corporate Lawyers Breaking Bad - CJ&D

Corporate Lawyers Breaking Bad | centerjd.org:
"By Joanne Doroshow, Center for Justice and Democracy at New York Law School
 I cannot wait for the new Breaking Badspin-off, Better Call Saul, about the always entertaining lawyer, Saul Goodman. For those unfamiliar with Breaking Bad, Saul's a criminal lawyer. No, literally, a CRIMINAL lawyer. Saul already has a new fake website complete with a banner ad, "Welcome Lawbreakers!" It's a joke, of course, not to mention fiction. And yet, I think Saul would find himself right at home in the legal departments of some of today's mega-corporations, at least based on what we've been seeing in court lately. And that's no joke.
 Last week, an extraordinary decision was issued by the federal Third Circuit Court of Appeals in an asbestos case, which really should rock the corporate defense bar. In the case, Kimberlee Williams, et al. v. BASF Catalysts LLC, et al., asbestos victims provided evidence to the court that "that BASF and ['the New York law firm that defended it for years in asbestos cases, Cahill Gordon & Reindel LLP'] systematically collected and destroyed or hid evidence of asbestos-contaminated products produced by a BASF predecessor, Engelhard, in order to evade liability and forge quick settlements." See more here. It was enough evidence to revive a fraud case against BASF and its law firm for "lying about the toxic material, then depriving those injured by it of their day in court.""

Gay Marriage -The Moment at Hand - Linda Greenhouse - NYTimes.com

William Eskridge was the first legal scholar
to propose same sex marriage
Times have changed.  Linda Greenhouse recounts how Judge Richard Posner's views on gay marriage have evolved from "it's OK for states to experiment" to "it's not OK for states to bar gay marriage".  Many of us have undergone similar evolution.  I remember the first time I wrote about the issue.  I supported Goodridge v. Massachusetts drafted an editorial relying on Justice Louis Brandeis's lauding state experimentation in the New State Ice case.
A few years later I supported New Jersey Justice Barry Albin's majority view (4-3) that the state had to provide absolute equality for same-sex couples but the voters should decide whether it had to be called marriage.  The Legislature responded setting up a study commission which concluded that only marriage could be equal to marriage.  The legislators passed a bill allowing gay marriage which Governor Chris Christie vetoed.  A lower court mandated marriage be permitted and Christie opted not to appeal.
Now the U.S. Supreme Court has to decide if the logic of permitting same-sex marriage is enough to overcome their conservative (and Catholic) impulse to defer to the sentiments of voters in the states which have not yet come to that conclusion.  - gwc
The Moment at Hand - NYTimes.com
by Linda Greenhouse

When it comes to gay rights, it’s not as if we need proof of how things have changed in the past 20 years. But anyone looking for proof might put two documents side by side. Both are by the same author, the always interesting, often provocative federal appeals court judge, Richard A. Posner. One, from the mid-1990s, is a review of a book advocating legal acceptance of same-sex marriage by William N. Eskridge Jr., then a law professor at Georgetown University, now at Yale.

The argument in the book, “The Case for Same-Sex Marriage,” was “a powerful one,” Judge Posner wrote, “and it would not trouble me if a state were persuaded by it and adopted such a law.” But a judicial declaration to a right to same-sex marriage, he continued, “would be an unprecedented example of judicial immodesty.” The public would view such a decision as the imposition of “a radical social policy that is deeply offensive to the vast majority,” Judge Posner went on, adding that “judges must accord considerable respect to the deeply held views of the democratic majority.”

The second document is from two weeks ago. Writing for a unanimous three-judge panel of the United States Court of Appeals for the Seventh Circuit, Judge Posner held that the refusal by Indiana and Wisconsin to recognize same-sex marriages violated the 14th Amendment guarantee of equal protection.

In a 40-page opinion in Baskin v. Bogan, issued nine days after the argument, Judge Posner said the states had failed to offer even “plausible” justifications for their prohibitions. He shredded the states’ arguments in pithy, sometimes hilarious terms. To the states’ “argument from tradition,” he observed that traditions are not invariably or reliably good. They can sometimes be bad (“cannibalism, foot-binding, and suttee”) or sometimes neither good nor bad (“trick-or-treating on Halloween.”) “Tradition per se therefore cannot be a lawful ground for discrimination.”

And to the argument that courts should defer to the democratic process (Indiana’s ban was by statute, and Wisconsin’s by constitutional referendum), Judge Posner had this to say: “Minorities trampled on by the democratic process have recourse to the courts; the recourse is called constitutional law.”
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Oregon Supreme Court Imposes Aggregate Settlement Rule in Clergy Sex Abuse Case //Mass Tort Blog

Mass Tort Litigation Blog:

by Elizabeth Chamblee Burch

On August 21, 2014, the Oregon Supreme Court embraced the ALI's definition of a non-class aggregate settlement and held that an attorney who represented victims of clergy abuse failed to get the clients' informed consent before distributing a lump-sum settlement.  In In re Complaint as to the Conduct of Daniel J. Gatti, the court noted that Gatti failed to get clients' informed consent in writing to the formula or method he devised to divvy up the defendants' lump-sum settlement payments, which violated Rule 1.8(g).  As a result, the court imposed a 90-day suspension as a sanction.
For more on the problems associated with lump-sum settlements, see Howie's article, The Trouble with All-or-Nothing Settlements.

Tuesday, September 16, 2014

Health Law Falls Flat With Kentucky Voters, Even Those It Helps - NYTimes.com

Robin Evans benefits from Obamacare but she's not budging.
She'll vote for Mitch McConnell who voted to keep her uninsured and sick.
Tip O'Neill was wrong.  All politics is tribal. She's sticking with the white people's party.  - gwc
Health Law Falls Flat With Kentucky Voters, Even Those It Helps - NYTimes.com

by Abby Goodnough

“I’m tickled to death with it,” Ms. Evans, 49, said of her new coverage as she walked around the Kentucky State Fair recently with her daughter, who also qualified for Medicaid under the law. “It’s helped me out a bunch.”

But Ms. Evans scowled at the mention of President Obama — “Nobody don’t care for nobody no more, and I think he’s got a lot to do with that,” she explained — and said she would vote this fall for Senator Mitch McConnell, the Kentucky Republican and minority leader, who is fond of saying the health care law should be “pulled out root and branch.”
Ms. Evans said she did not want the law repealed but had too many overall reservations about Democrats to switch her vote. “Born and raised Republican,” she said of herself. “I ain’t planning on changing now.”
Continue reading the main story
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Number of Americans Without Health Insurance Falls, Survey Shows - NYTimes.com

Number of Americans Without Health Insurance Falls, Survey Shows - NYTimes.com:
by Sabrina Tavernise
Federal researchers reported on Tuesday that the number of Americans without health insurance had declined substantially in the first quarter of this year, the first federal measure of the number of uninsured Americans since the Affordable Care Act extended coverage to millions of people in January.

The number of uninsured Americans fell by about 8 percent to 41 million people in the first quarter of this year, compared with 2013, a drop that represented about 3.8 million people and that roughly matched what experts were expecting based on polling by private groups, like Gallup. The survey also measured physical health but found little evidence of change.

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How Stephen King Teaches Writing // The Atlantic


Stephen King believes in diagramming sentences and Strunk & White's Elements of style.  Jessica Fahey interviews him in The Atlantic. - gwc
How Stephen King Teaches Writing - The Atlantic:
by Jessica Fahey

Stephen King’s On Writing: A Memoir of the Craft has been a fixture in my English classroom for years, but it wasn’t until this summer, when I began teaching in a residential drug and alcohol rehab, that I discovered the full measure of its worth. For weeks, I struggled to engage my detoxing, frustrated, and reluctant teenage students. I trotted out all my best lessons and performed all my best tricks, but save for one rousing read-aloud of Poe’s “A Tell-Tale Heart,” I failed to engage their attention or imagination.
Until the day I handed out copies of On Writing. Stephen King’s memoir of the craft is more than an inventory of the writer’s toolbox or a voyeuristic peek into his prolific and successful writing life. King recounts his years as a high school English teacher, his own recovery from drug and alcohol addiction, and his love for his students (“even the Beavis and Butt-Head types”). Most importantly, he captivates the reader with his honest account of the challenges he’s faced, and promises redemption to anyone willing to come to the blank page with a sense of purpose.
I asked King to expound on the parts of On Writing I love most: the nuts and bolts of teaching, the geekiest details of grammar, and his ideas about how to encourage a love of language in all of our students.
For the interview click the headline above

Monday, September 15, 2014

Here's what Shakespeare's Plays Sounded Like in the Original Accent

Here’s what Shakespeare’s plays sounded like with their original English accent | 22 Words: "In this short documentary, linguist David Crystal and his son, actor Ben Crystal, look at the differences between English pronunciation now and how it was spoken 400 years ago. They answer the most basic question you probably have right now — How do you know what it sounded like back then? — and they discuss the value of performing Shakespeare’s plays in the original accent…"

Cleaning China's Smoggy Skies: China Released Draft Air Pollution Law Amendments for Public Comment | Barbara Finamore's Blog | Switchboard, from NRDC

Cleaning China's Smoggy Skies: China Released Draft Air Pollution Law Amendments for Public Comment | Barbara Finamore's Blog | Switchboard, from NRDC: "Though a burst of clear skies on Monday allowed Beijingers to marvel at a magnificent Mid-Autumn Festival moon, a blanket of smog choked the capital the next morning, reminding citizens of China’s grave air pollution woes. However, that same Tuesday, September 9th, the Legislative Affairs Office of China’s State Council released the first draft of the highly-anticipated revisions to the national Air Pollution Prevention and Control Law (hereinafter referred to as the Air Pollution Law), providing hope that blue skies won’t always be so fleeting. The State Council’s Legislative Affairs Office, which generates and reviews drafts of national laws and regulations, will be accepting comments on revisions of the law between September 9th and October 8, 2014. Releasing the draft law for public comment at such an early stage of the process is a big step forward for governmental transparency and public participation. The Chinese government does not usually seek public comments on laws until they are submitted to the National People’s Congress (NPC), at which point it becomes more difficult for the public to influence legislation. Amendments to the Air Pollution Law have been a long time in the making. China’s original 1987 Air Pollution Law was first revised in 1995 and further strengthened in 2000. But these earlier versions lacked specific details and mechanisms for enforcement."

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Sunday, September 14, 2014

I know that Bruce Ackerman says that this is Obama's Unconstitutional War.  And Andrew Sprung has been skeptical.  But I'm inclined to support the Obama approach to ISIS, pretty much for the reasons he has given.  - gwc
President Obama: “We Will Degrade and Ultimately Destroy ISIL” | The White House:

VIDEO

Friday, September 12, 2014

N.F.L. Agrees: Brain Trauma in 1 in 3 Players - NYTimes.com

This is the most shocking statement about workplace safety I have ever heard.  If football cannot be made safe it must be banned.  And I doubt it can be made safe. = GWC
N.F.L. Agrees: Brain Trauma in 1 in 3 Players - NYTimes.com:
The National Football League, which for years disputed evidence that its players had a high rate of severe brain damage, has stated in federal court documents that it expects nearly a third of retired players to develop long-term cognitive problems and that the conditions are likely to emerge at “notably younger ages” than in the general population.
The findings are a result of data prepared by actuaries hired by the league and provided to the United States District Court judge presiding over the settlement between the N.F.L. and 5,000 former players who sued the league, alleging that it had hidden the dangers of concussions from them.
“Thus, our assumptions result in prevalence rates by age group that are materially higher than those expected in the general population,” said the report, prepared by the Segal Group for the N.F.L. “Furthermore, the model forecasts that players will develop these diagnoses at notably younger ages than the generation population.”

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9/11 Thirteen Years Later

On September 10, 2014 President Obama explained without demagoguery his intention to destroy the extremist force that is commonly called ISIL or ISIS.  There are criticisms: particularly his broad assertion of Presidential power was criticized by constitutional law scholar Bruce Ackerman, Andrew Sprung said the President "phoned it in", Jonathan Hafetz lamented the "elasticity of the post 9/11 AUMF", and Republican leaders in Congress and at Fox News were generally shrill when not being silly.
I have to say..I am not worried about this expansion of the claim of authority/  The Marines landed on the shores of Tripoli and the republic stood. - gwc

Thursday, September 11, 2014

NJ Lawmakers May Increase Judges' Retirement Age | New Jersey Law Journal

Lawmakers Express Desire to Increase Judges' Retirement Age | New Jersey Law Journal:
by Michael Booth // NJLJ
"New Jersey lawmakers appear to be closer to taking another step toward increasing the mandatory retirement age of the state's judges. Although no formal vote was taken, members of the Assembly Judiciary Committee on Sept. 11 appeared united in their desire to push forward either one of two packages that would increase the retirement age from 70 to either 72 or 75. The committee heard about an hour of testimony on two proposed constitutional amendments and two implementing statutes. The Pension and Health Benefits Commission recommended passage of the measures in June. Chairman John McKeon, D-Morris, has said he wants to move on increasing the retirement age this year. Increasing the retirement age, which is being viewed as one way to keep the Superior Court bench staffed at a time of increasing vacancy rates, would require the approval of the state's voters."

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Passive Aggressive: Scalia and Garner on Interpretation

Passive Aggressive: Scalia and Garner on Interpretation:
by Andrew Koppelman
Abstract
Antonin Scalia’s coauthored treatise on legal interpretation is also a melodrama, with sharply drawn good guys and bad guys. The hero is the Faithful and Impartial Judge, the servant of Democracy. The argument is weak and inconsistent with Scalia’s actual practice as a judge. The book nonetheless nicely accomplishes what it is trying to do. Scalia is one of the authors, to be sure, but he is also the protagonist of a narrative. The author’s preeminent concern is seeing to it that you perceive the protagonist as the author intends: as the champion of judicial restraint, against all those liberal oligarchs. If you buy the story of Virtuous Scalia, that empowers Judicial Activist Scalia.
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Anti-gay slurs merit suspension: New Jersey Supreme Court

In I/M/O Jared Stolz, an insurance defense lawyer , has been suspended for three months because over a period of time he insulted his adversary, sending emails and faxed letters that said:

"Don’t feel you have to email me daily andlet me know just how smart you are."(November 3, 2009 email)."This will acknowledge receipt of yournumerous Emails, faxes and letters ....In response thereto, Bla Bla Bla Bla BlaBla." (November ii, 2009 fax.)"Did you get beat up in school a lot?,because you whine like a little girl."(January 27, 2010 email)."Why don’t you grow a pair?" (July 7, 2010email)."I’d send you the delivery receipt, but Iput both your email addresses in my ’JunkMail’ box, because that is all I get fromyou, JUNK." (Aug. 16, 2010 email)"What’s that girlie email you have.Hotbox.com or something?" (Sept 28, 2010email).
At one point after arguing several motions there was a physical confrontation.  Stolz had been angered by his adversary's threat to file ethics compliants.  When the adversary said to Stolz "don't ever touch me again" the responses was "why would I want to touch a fag like you?"

Those are the headline grabbers, but underlying that is the fact that Stolz was very busy and had, admittedly, decided to improve his lifestyle by paying more golf and spending more time with his family.  One result was that he neglected his files, which led in his case to lies to a judge.

The New Jersey Supreme Court affirmed the decision of its Disciplinary Review Board which found Stolz violated Rules of Professional Conduct 3.2, failure to treat those involved in the legal process with courtesy and respect; 8.4(d), conduct prejudicial to the administration of justice; 8.4(a), violating ethics strictures; 3.3(a)(1), knowingly lying to a tribunal; 3.3(a)(5), failing to disclose a material fact to a tribunal; and 4.1(a), knowingly lying to a third person.

Read more: http://www.njlawjournal.com/id=1202669638153/Attorney-Who-Called-Opposing-Counsel-Gay-Slur-Suspended#ixzz3CyQAty92

Monday, September 8, 2014

White People Commit the Most Heinous Crimes, So Why Is America Terrified of Black Men? | Alternet

White People Commit the Most Heinous Crimes, So Why Is America Terrified of Black Men? | Alternet:
by Lisa Bloom - author of Suspicion Nation
Underlying much of that subconscious racial bias is the most enduring, corrosive racial stereotype in America: the black-as-criminal mindset.  Historian David Levering summarizes it:  “Whites commit crimes but blacks are criminals.” While whites can and do commit a great deal of minor and major crimes, the race as a whole is never tainted by those acts.  But when blacks violate the law, all members of the race are considered suspect.  I used to anchor a show on Court TV, and when we heard about a new arrest for some horrific crime, my African American co-host would whisper, “Please don’t let him be black.”  It would never enter my mind to wish that a bad guy not be white, because no matter how sick the crime, other members of the white race are not impugned.

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How we grew up: an Israeli veteran on the dehumanising power of military control //New Statesman

Israeli soldiers in front of the barrier at the Qalandiya checkpoint between Ramallah and Jerusalem. Photo: Getty
New Statesman | How we grew up: an Israeli veteran on the dehumanising power of military control: "Yehuda Shaul writes of how he and his friends learned to glorify power, and lost their ability to see Palestinians as people whose lives are no less valuable. Now, he and hundreds of others are working to end the occupation."
by Yehuda Shaul
 I would be obliged to say that 47 years as an occupying power have taught Israeli society a similar lesson to the one learned by every soldier who serves in the Territories. We have learned to glorify power, and have lost our ability to see Palestinians as people whose lives are no less valuable than ours. We have learned to avert our gaze from the tears of the hundreds of children who were killed over the course of the past month in Gaza. In addition to the dozens of families that were erased when one-ton bombs were dropped on their homes. The destructive images give rise to feelings of pride, rather than questions about the people for whom the rubble was once a home. The abject poverty in Gaza arouses contempt, instead of questions regarding the roots of poverty in a region that remains under Israeli control.

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A War of Choice in Gaza - NYTimes.com

A War of Choice in Gaza - NYTimes.com:
by Roger Cohen
LONDON — Another round of violence is over in the Holy Land. More than 2,100 Palestinians, most of them civilians and many of them children, have been killed. More than 70 Israelis are dead. The grass, in that appalling Israeli metaphor, has been mown (and will now start growing again). Hamas, through its resistance, has burnished its reputation among Palestinians. Israel is angrier. Nobody is better off.
Periodic eruptions are intrinsic to Prime Minister Benjamin Netanyahu’s strategy of maintaining the status quo of rule over millions of Palestinians, expansion of West Bank settlements and maneuver to deflect American mediation. Oppressed people will rise up. Israel’s anemic embrace of a two-state objective is the best possible cover for the evisceration of that aim. Still, the question arises: Was this mini-war necessary?
I think not. 

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G.M.’s Board Is Seen as Slow in Reacting to Safety Crisis - NYTimes.com


G.M.’s Board Is Seen as Slow in Reacting to Safety Crisis - NYTimes.com: "The "Valukas Report" by the law firm Jenner & Block into GM's response to the ignition key defect continues to produce insights into how corporate responsibility took the form of self-protection and self delusion.  - gwc

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