Back to the Ice House? Obama, Brandeis and Federal Preemption

"As Justice Brandeis explained more than 70 years ago, "[i]t is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country."

Barack Obama, May 20, 2009 - quoting New State Ice Co. v. Liebmann, 285 U.S. 262 (1932)

The White House today issued a Presidential Memorandum to the heads of all federal agencies. It instructs them to spurn the Bush administration's "backdoor federalization" - use of the regulatory preamble to establish federal preemption of state law where neither regulation nor statute explicitly called for it. Obama mandated a review of preemptive regulations taken in the past 10 years:

"3. Heads of departments and agencies should review regulations issued within the past 10 years that contain statements in regulatory preambles or codified provisions intended by the department or agency to preempt State law, in order to decide whether such statements or provisions are justified under applicable legal principles governing preemption. Where the head of a department or agency determines that a regulatory statement of preemption or codified regulatory provision cannot be so justified, the head of that department or agency should initiate appropriate action, which may include amendment of the relevant regulation."

But federalism is a wall on which all can write, as the Bush administration did despite leaving untouched Clinton's 11th hour Executive Order 13132 - Federalism. The first federalists were nationalists. Today's are states righters - except when it comes to litigation costs that business would rather avoid.

Momentum matters in football, and in litigation. Catherine Sharkey and Samuel Issacharoff described that momentum in Backdoor Federalization, 53 UCLA L. REV. 1353 (2006). But the Obama memo combined with the plaintiffs' win in Wyeth v. Levine enables us to say that the Big Mo has stalled if not reversed.

Not all have gotten the message. In Bruesewitz v. Wyeth, 561 F.3d 233, the 3rd Circuit found a DPT vaccine design defect claim to be impliedly preempted by the 1982 Childhood Vaccine Compensation Act- despite the Levine decision. The Circuit rejected the Georgia Supreme Court's contrary conclusion in American Home Products v. Ferrari, 284 Ga. 384 (2008)

States are certainly proving to be a laboratory on the same-sex marriage front as Maine has just demonstrated. But the nationalizing argument is certainly stronger when it comes to governing commerce. As Stephen Sugarman has pointed out liberals flip-flopped on tort law. Once celebrants of the regulatory state that FDR built, in the last three decades they became defenders of state prerogatives in tort law.

One cannot accuse the plaintiffs lawyers of flip-flopping. The American Association for Justice (once the National Organization of Claimants Compensation Representatives, then the Trial Lawyers) [of which I am a long-time member] was built by the `King of Torts' Melvin Belli and then-retired Harvard Law School Dean Roscoe Pound, a New Deal skeptic. John Fabian Witt in Patriots and Cosmopolitans has brilliantly chronicled that history.

Today Obama's regulatory policy czar Cass Sunstein is unlikely to follow the Roscoe Pound model. In `Is Tobacco a Drug? Administrative Agencies as Common Law Courts', 47 DUKE L.J. 1013 (1998) he defended the Clinton Administration's expansive view of FDA jursidiction over tobacco. And his pro-regulatory cost-benefit approach is controversial among those who claim to comprehend it. See, e.g. his Catastrophic Harm Precautionary Principle here.

Call to bishops for civility on abortion issue

Turning the abortion debate into a single-issue take-no-prisoners crusade has marginalized Catholic influence on the issue according to John Langan, S.J., Rector of Georgetown's Jesuit community. He spoke out at a recent seminar on Capitol Hill sponsored by Catholic University, National Catholic Reporter recounts.

In remarks delivered two weeks before Barack Obama struck a comparable note at Notre Dame's commencment Fr. Langan, the Cardinal Joseph Bernardin Professor of Catholic Social Thought, said:

"The bishops are certainly right to condemn the moral evil of abortion and to warn us against the individualism, selfishness and greed which have had such a devastating effect on American culture and family life as well as on our financial institutions,” he said.

“But if they think they make their witness more credible and more effective by developing a quasi-excommunication of the Democratic Party and by aligning themselves with politicians who think that combining pro-life slogans with American chauvinism and exercising American military power without regard to international criticism constitutes an adequate response to evil in the world, they are sadly mistaken,” he added.

Bishops who try to make abortion the sole or overriding political issue for Catholics are “marginalizing the church’s political influence,” he said.

H.R. 1346 - Medical Device Safety Act of 2009

The FDCA has a provision which expressly preempts state regulations that contradict federal regulatory decisions. Justice Scalia (and a 7-2 majority of the Supreme Court) read that broadly to bar design defect claims against FDA-cleared devices in Riegel v. Medtronic.

The Institute of Medicine's report The Future of Drug Safety made clear the FDA is neither designed to nor is it competent to determine what design choices the manufacturer could have made. Its passive role is as gatekeeper not designer. The FDA's definition of safe and effective is an unquantified "net benefit" - "better than placebo". Yet the Court found that state product liability actions are barred because FDA approval of a new device essentially satisfied the "reasonably safe product" duty imposed on sellers by state common law.

Lower courts promptly barred claims even for admittedly defective cardiac defibrillators. In re Medtronic, Inc., Sprint Fidelis Leads Product Products Liability Litigation, 592 F. Supp. 2d 1147 (D. Minn. 2009) (MDL Proceeding)

Now Henry Waxman, sponsor of H.R. 1346 - the Medical Device Safety Act of 2009 - proposes to reverse that decision. (see Open Congress status widgets below)

House Energy and Health subcommittee hearings were held May 12. The complete record including videos and prepared testimony can be found here.

Witnesses were:

• David Vladeck, J.D., Professor of Law, Georgetown University Law Center
• William H. Maisel, M.D., M.P.H., Director, Medical Device Safety Institute, Department of Medicine, Beth Israel Deaconess Medical Center, Boston
• Gregory Curfman, M.D., Editor, New England Journal of Medicine
• Bridget Robb, Gwynedd, Pennsylvania
• Richard Cooper, Partner, Williams & Connolly LLP
• Michael Kinsley, Seattle, Washington

"Disbar the torture lawyers"?

I am not committing myself on the legal merits of the effort but here is the website of Velvet Revolution's campaign to "disbar the torture lawyers". It provides the disciplinary complaints they have filed against Bush administration lawyers who were policy architects or authored the notorious memos, and the key documents.

As a teacher of professional responsibility I will withhold judgment until I have studied them. I will acknowledge though that when on his first day in the Oval Office President Obama stood with the admirals who had pressed the issue and signed the executive order that interrogations must adhere to law - to the Army field manual - tears welled up as the weight of shame lifted.

And I voted with the majority on a yet-to-be-published editorial in the New Jersey Law Journal entitled Enabling Torture. It concludes:

"Law is powerful and lawyers who construe and implement law have extraordinary power. If that power is used to enable torture, criminal punishment and professional discipline may well be warranted."

p.s. - 12/1/2009 A coalition of NGO's has filed more state bar complaints against lawyers in the Bush administration. The documents can be found HERE

Obama at Notre Dame

Abortion. Choice. Planned Parenthood. Life.

The debate has divided the American polity for forty years. The dominant opinion has ben "pro-choice". The Catholic hierarchy has so staked its case on "pro-life" that those who disagree on banning abortion have been banished from campuses and barred from receiving Communion - the central sacrament of Catholic practice.

I attended a commencement a few years ago. The speaker (I don't remember who) said he would be brief. He had once before given such an address. He asked his son if he remembered who had spoken at the son's commencement. NO, the son responded. "It was me", said the father. That won't happen to those who graduated from Notre Dame yesterday.

Barack Obama, in language that reminds me of his speech on race, has sought to bridge the divide - without claiming it can be erased. The full text is here. An excerpt follows. The video is on the Notre Dame site, as is Judge John Noonan's address.

As I considered the controversy surrounding my visit here, I was reminded of an encounter I had during my Senate campaign, one that I describe in a book I wrote called The Audacity of Hope. A few days after I won the Democratic nomination, I received an email from a doctor who told me that while he voted for me in the primary, he had a serious concern that might prevent him from voting for me in the general election. He described himself as a Christian who was strongly pro-life, but that’s not what was preventing him from voting for me.

What bothered the doctor was an entry that my campaign staff had posted on my website - an entry that said I would fight “right-wing ideologues who want to take away a woman’s right to choose.” The doctor said that he had assumed I was a reasonable person, but that if I truly believed that every pro-life individual was simply an ideologue who wanted to inflict suffering on women, then I was not very reasonable. He wrote, “I do not ask at this point that you oppose abortion, only that you speak about this issue in fair-minded words.”

Fair-minded words.

After I read the doctor’s letter, I wrote back to him and thanked him. I didn’t change my position, but I did tell my staff to change the words on my website. And I said a prayer that night that I might extend the same presumption of good faith to others that the doctor had extended to me. Because when we do that - when we open our hearts and our minds to those who may not think like we do or believe what we do - that’s when we discover at least the possibility of common ground.

That’s when we begin to say, “Maybe we won’t agree on abortion, but we can still agree that this is a heart-wrenching decision for any woman to make, with both moral and spiritual dimensions.

So let’s work together to reduce the number of women seeking abortions by reducing unintended pregnancies, and making adoption more available, and providing care and support for women who do carry their child to term. Let’s honor the conscience of those who disagree with abortion, and draft a sensible conscience clause, and make sure that all of our health care policies are grounded in clear ethics and sound science, as well as respect for the equality of women.”

Understand - I do not suggest that the debate surrounding abortion can or should go away. No matter how much we may want to fudge it - indeed, while we know that the views of most Americans on the subject are complex and even contradictory - the fact is that at some level, the views of the two camps are irreconcilable. Each side will continue to make its case to the public with passion and conviction. But surely we can do so without reducing those with differing views to caricature.

Vioxx: Australia trial - deja vu

Tufts University cardiologist Marvin Konstam

was lead author but made made "no significant contribution"

to a Merck-financed 2001 article in a leading journal that discounted

Vioxx health risks.

The Australian, a leading daily newspaper - and Wall Street Journal affiliate - has excellent coverage of the current Vioxx trial there. There are many demonstrations of marketing's triumph over science like those familiar to me from my work for plaintiffs in McDarby v. Merck: the hard sell, the misleading marketing, the wining and dining of doctors, the struggle with regulators. The Australian's index page for Vioxx is here

The current Vioxx trial in Federal Court replicates in may ways the U.S. experience: Merck struggling - with considerable success - to get regulators to soften the warnings, pointing to and developing the ambiguities in the medical evidence.

It is a much easier thing than one might think. Scientists are so imbued with fealty to the null hypothesis that it is rare to see them state a conclusion with any definiteness. Evidence always suggests, never shows, never proves. Thus

"On the witness stand yesterday, Mr Back (of Merck) admitted the company "pushed back" on the wording of the suggested warnings by the TGA in the product information, which was aimed at doctors.

"The company didn't believe (the warning) was supported by the data," he said.

When Mr Back, who is now the company's associate director of regulatory affairs, was asked by Mr Burnside who the warnings had to be made "palatable" for, he said it was for Ms Loran (a Merck marketing exec in the U.S.).

The court heard that the TGA finally accepted the revisions in November 2001 after Merck successfully changed the warning from Vioxx-specific to just referring to the class of drug.

Lead plaintiff Graeme Peterson, representing more than 1000 other Australians, claims Vioxx caused his heart attack in 2003. He is suing Merck & Co and Merck, Sharp and Dohme for compensation."

For excellent discussion of the issues, take a look at Concurring Opinion for its discussion of "mercketing". And for the particularly serious problem of pharmaceutical companies like Merck's ghost-writing medical literature, see Sergio Sismondo's Ghosts in the Machine.

Thanks to Mass Tort Litigation blog for the tips on Concurring Opinion and Sismondo.

- GWC

A global casino in which the government is the house and the taxpayers are the losers

Calculated Risk (link in blog roll) presents some videos from the (Michael) Milken Institute's recent conference on the crisis in the credit markets. We have been living in a "global casino", explains David Malpass (former chief economist for Bear Stearns) now a consultant with Encima Global.

My 15 Seconds of Fame: WCBS-TV news on Swine Flu

I was the man on the street. The only one, actually, about 3:30 today at the corner of Columbus and 62d as I approached Fordham. The man with the microphone was Pablo Guzman, the veteran CBS-TV local news reporter (and once Minister of Information of the Young Lords Organization which also produced newsman Geraldo Rivera).

Did I have a minute to answer a question: will there be a backlash against Mexicans due to the swine flu outbreak there? I was glad that when my Warhol moment came I was wearing my Fordham cap and standing in front of the Law School (on my way to pick up my ungraded exams).

I promptly issued glorious remarks demonstrating my mastery of the subject, reaching all the way back to the New York Health Department's 1947 vaccination of 7 million in 7 days when smallpox broke out in Brooklyn; reassuring words about the comprehensive plans of world public health authorites for just this kind of emergency; the importance of following the advice of the public health authorities; that all will be well.

All on the cutting room floor. It was the man in the street stuff that got on air. Here it is

And here's the video

Apr 29, 2009 7:53 pm US/Eastern

Is Swine Flu A Stigma On Mexicans In New York?

Reporting
Pablo Guzman

NEW YORK (CBS) ― With the swine flu outbreak having started in Mexico, are New Yorkers stigmatizing Mexicans?

"I'd like to say we're beyond that, but people are afraid and we know less about how Mexico is governed and how effective the public health authorities are there," said Fordham law professor George Conk.

Click to enlarge

U.S. travelers who were on a flight from Mexico wear face masks to protect themselves against the risk of contracting swine flu as they arrive at Los Angeles International Airport on April 28, 2009.

Mark Ralston/Getty Images

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Defending Harold Koh - Duncan Hollis & Chris Borgen

Duncan Hollis (Temple) and Christopher Borgen (St. John's), defend Harold Koh's approach to international law concisely in the Philadelphia Inquirer today - eve of the confirmation hearings for his post as Legal Adviser at State. Check out their post on Opinio Juris or just go to the Inquirer.

"Suggestions that Koh's appreciation of foreign and international law is somehow un-American misrepresent who we are as a nation. International law and a willingness to learn from others' experiences are part of our DNA.

One opponent expressed horror at Koh's willingness to examine U.S. law with a "decent respect to the opinions of humankind."

Critics would do well to consider that phrase's origin: the Declaration of Independence.

Koh's respect for international law and the experiences of other peoples does not deny the greatness of America and our Constitution; it affirms it."

Stressed Out - 13 big banks

The Treasury issued its Stress Test methodology.

Without numbers. Without categories of losses.

So the story is starting to leak out.

Thirteen Banks:

JP Morgan Chase, Citigroup, Bank of America, Wells Fargo, Sun Trust, State Street, Key Corp, US Bancorp, Capital One, Bank of New York Mellon, PNC, Goldman Sachs, BB&T

$240 Billion in Projected Losses

Graphic image: Westwood Capital

Thanks to Calculated Risk

Pat Buchanan - Kid Glove Treatment of a Racist

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THIS IS YOUR FATHER'S PAT BUCHANAN

No one who has followed Pat Buchanan over the years will be surprised by him using a questionable term like "scrub stock" to describe non-white foreigners. Well, no one outside of DC, at least. The real issue is why Buchanan's jingoistic nativism has not disqualified him as a member of the elite punditry who gets to spend hours each week playing the cranky old uncle on MSNBC.

Late Update: TPM Reader TL takes exception:

Why does David Kurtz let Pat Buchanan off so easily? Labeling him as merely a "nativist" is tantamount to a slap on the wrist, and in light of the over-the-top, inflammatory innuendo in his article could even be perceived as a strange nod of agreement. ...

Pat Buchanan ... was born in 1938 and understands full well the meaning of "blood-and-soil" and "scrub stock." His article is an endorsement -- even embracing -- of full blown Naziism, and the worst of Naziism (if there can be such a thing).

It's not the "dip" into an "obscure racist phrase" (in TPM's words) that is so disturbing -- it's the use of three phrases and the ideology behind them, tied together in one article, that rise to a level I've never witnessed in recent mainstream political discourse: "blood-and-soil," "scrub stock," and "(m)ost Americans remain visceral patriots. It's in their DNA."

This rises to a level that would likely, ironically, put Buchanan in prison in today's more enlightened Germany, but might have earned him an officer's commission in the SS in 1938, the year he was born.

--David Kurtz

Herald of Change? New Jersey's Repeal of the Death Penalty

My essay - which introduces the Proceedings of last year's symposium at Seton Hall on the repeal of the death penalty -has now been published by the Seton Hall Legislative Journal at 33 Seton Hall Leg. J. 21 (2008).

It is available on SSRN here. Abstract below.

The complete proceedings are available on SSRN here and via the post just below this one.

The symposium did what we sought - built the historical record and demonstrated how the change came to America. It was a powerful message, which I delivered several times in China in December 2008. I had the good fortune to be invited by NYU Law Prof. Jerome Cohen to join him, his staff Yu Ping and Margaret Lewis, along with judges Jed Rakoff (Southern District NY) and John M. Walker (2d Circuit). We spoke to judges, prosecutors, and students at universities in Guangzhou and Beijing. I went on to Wuhan to Huazhong University of Science & Technology. (More on that in a future post.)

Abstract

Herald of Change

In 2007, the New Jersey Legislature repealed the death penalty, twenty five years after it had reinstated capital punishment. The U.S. Supreme Court suspended all executions in 1972 in Furman v. Georgia. New Jersey restored the measure in 1982 - relying on specified aggravating and mitigating factors to cure the arbitrariness that the Supreme Court had declared made execution as random as being struck by lightning.

Of 228 death penalty trials 60 were sentenced to death, 57 death sentences were reversed on appeal. 9 condemned men remained on death row when the Legislature’s Study commission recommended repeal in 2007. No one was executed from reinstatement to the Legislature acted in December 2007, replacing execution with life imprisonment without parole.

The New Jersey courts took their mandate to avoid arbitrariness with utmost earnestness and approached their task with scientific rigor. The Office of the Public Defender, in its mission to "save lives" used advanced statistical methods to examine death penalty outcomes across a spectrum of circumstances. The appointed a Special Master to determine if racial or other impermissible disparity tainted the death sentences. The Supreme Court itself used what Justice Alan Handler (a death penalty opponent) called "super due process" and Justice John Wallace labeled "exacting review" - a fusion of the lessons of the 5th, 6th, 8th, and 14th amendments. It was this process, not, as some detractors would argue, obstruction, that led to the lack of executions.

Justice Virginia Long felt that the "proportionality review" process used by the courts to be "futile" and wanted to outlaw the death penalty based on "evolving standards of decency". The majority was unpersuaded. Justice Barry Albin agreed with her assessment but believed the court must defer to the voting public, which had affirmed in a 1992 amendment that execution was supported by common sentiment. Indeed, this was the ultimate outcome - the elected Legislature acted and repealed the death penalty on December 17, 2008.

The next day the United Nations General Assembly called for a moratorium on executions. In Italy the Colosseum, ancient site of executions, was bathed n light in tribue

New Jersey, with its urban and diverse population, has long been a bellwether state on social issues such as fair employment practices, and civil union. The death penalty is no exception. 15 months after repeal one state (New Mexico) has followed New Jersey’s lead and has abolished the death penalty.

Symposium proceedings: Legislative Repeal of the Death Penalty in New Jersey

SETON HALL LEGISLATIVE JOURNAL

SYMPOSIUM ISSUE

VOLUME 33, No. 1 (2008)

Constance Desena, Editor In Chief

download at SSRN

LEGISLATION, LITIGATION, REFLECTION & REPEAL:

THE LEGISLATIVE REPEAL OF THE DEATH PENALTY IN NEW JERSEY

April 14, 2008 symposium website

Herald of Change? New Jersey’s Repeal of the Death Penalty ... George W. Conk

Proceedings

Call to Order & Welcome

Patrick E. Hobbs, Dean, Seton Hall Law School

George W. Conk, Stein Center for Law & Ethics, Fordham Law School, Symposium Co-Chairman

Keynote Address... James R. Zazzali, Chief Justice, Supreme Court of New Jersey (Ret.)

Symposium Chairman

Panel I: The Struggle in the Courtroom

Moderator: Hon. W. Michael Murphy

Dale Jones, Assistant Public Defender; William A. Zarling, First Deputy Assistant Prosecutor (Ret.); David A. Ruhnke, Esq.

Panel II: The Death Penalty on Appeal

Moderator: Hon. James R. Zazzali, Chief Justice, Supreme Court of New Jersey (Ret.)

Hon. Deborah T. Poritz, Chief Justice, Supreme Court of New Jersey (Ret.)

James K. Smith, Assistant Public Defender

Hon. Alan B. Handler, Associate Justice, Supreme Court of New Jersey (Ret.)

Hon. Peter G. Verniero, Associate Justice, Supreme Court of New Jersey (Ret.)

Lawrence S. Lustberg, Esq., Gibbons P.C.

Address: Hon. Jon S. Corzine, Governor, State of New Jersey

Legislative Resolution presented to Celeste Fitzgerald, New Jerseyans for Alternatives to the Death Penalty, by Senator Raymond J. Lesniak

Panel III: Legislative Moratorium and the Death Penalty Study Commission

Moderator: Prof. R. Erik Lillquist, Gibbons Institute, Associate Dean, Seton Hall Law School

Celeste Fitzgerald, Director, New Jerseyans for Alternatives to the Death Penalty

Kevin D. Walsh, Esq., New Jerseyans for Alternatives to the Death Penalty

Hon. James H. Coleman, Associate Justice, Supreme Court of New Jersey (Ret.)

Miles S. Winder, III, NJ State Bar Association Member of NJ Death Penalty Study Commission

Panel IV: The Final Act - Repeal - Marshaling the Votes

Moderator: Kathy Barrett Carter, Editorial Board member, The Star Ledger

Hon. Robert Martin, Sponsor - NJ State Senate; Professor, Seton Hall Law School, Co-chairman

Hon. Wilfredo Caraballo, N.J. Assembly Sponsor; Professor, Seton Hall Law School

Senator Raymond J. Lesniak, Majority Leader

Hon. Christopher “Kip” Bateman, N.J. Assembly Sponsor

Conference chairs:

Hon. James R. Zazzali, Chairman

Co-chairs:

George Conk - Stein Center for Law & Ethics, Fordham Law School

Robert Martin - Seton Hall Law School

Lynne Newsome - New Jersey State Bar Association

Stephen Greenwald - Capital Punishment committee, New York City Bar Association

Katrina: Tort Claims Act trial begins against Army Corps of Engineers

The bench trial against the Army Corps of Engineers began today before Judge Stanwood Duval in U.S. District Court in New Orleans, reports the Times.

Robinson v. United States of America, Civil No. 06-2268, (EDLA) is the bellwether trial for a settlement class of those who suffered losses when hurricane Katrina overwhelmed the levees protecting New Orleans, Louisiana. The passionate complaint alleges unfathomable losses due to design defects in the Army Corps of Engineers' "design, construction, operation, and maintenance of the Missippi River Gulf Outlet". MR-GO is a navigation canal dug through the Louisiana wetlands to the sea. (Because it is not a flood control measure the Federal Tort Claims Act allows negligence claims against the United States).

The canal, which history has shown to be a catastrophic mistake, has been `deauthorized' by the Army Corps of Engineers. It will soon be blocked by a huge concrete wall, and work has begun to restore the protective wetlands destroyed by the straight-as-an-arrow ship canal.

The complaint alleges that the "drowning" of the City and the massive damage were the

"foreseeable consequences of two fatally defective conditions known by the United States Army Corps of Engineers (HAnny Corps") for decades:

(1) the destruction ofthe marshlands surrounding the MR-GO that intensified a huge east-west storm surge resulting in the inundation of much of New Orleans; and

(2) the funnel effect stemming from the MR-GO's faulty design that accelerated the force and strength of the storm surge to lethal proportions.

Absent the exacerbating effect of the MR-GO, aptly nicknarned the "Hurricane Highway," Katrina would have been an endurable event in New Orleans' history rather than the obliterating force that destroyed lives and businesses, displaced thousands of people, and devastated much of a great American city known for its historic grace and beauty."

The funnel effect is demonstrated by the drawing above. It is the phenomenon described by Bernoulli's Theorem - which applies to both liquids and gases. The canyon effect on New York's streets is a concrete example. The straight-line to the sea built by the Army Corps created a firehose pouring into the City when the Katrina storm surge hit at just the right angle. As a reporter I'll follow it.

Further "the Army Corps was well aware of-but did nothing to correct-the faulty design of the MR-GO, described in 2002 as "a shotgun pointed straight at New Orleans, should a major hurricane approach from that angle." The MR-GO is a straight arrow pointed at Greater New Orleans with no barriers or other means to slow down storm-driven surges. In addition, the MR-GO creates a funnel effect where the MR-GO intersects the Gulf Intracoastal Waterway ("GIWW"), furiously accelerating the power and force of the storm surge while channeling it directly into the Industrial Canal (also known as the Inner Harbor Navigational Canal ("nINC'). This funnel effect caused the inuudation of New Orleans East, St. Bernard Parish, and the Lower Ninth Ward."

In 2007 Judge Duval denied the U.S. motion to dismiss under 12 (b)(1) and (6), rejecting the claim that "discretionary function" immunity applied because

"the Court finds, at a minimum, that plaintiffs' allegations

concerning:

(1) the failure of the Army Corp to consult with the U.S. Fish and Wildlife Service and the Louisiana Department of Wild Life and Fisheries–and to present these agencies' concerns to Congress about the MRGO alignment and the effect thereof on the wetlands–as required by statute;

(2) the numerosity of the decisions made in constructing and maintaining the MRGO and the inability on this record to characterize such decisions as being grounded in policy;

(3) the issue of whether there were non-policy based decisions made that failed to comport with standard engineering practices;

raises issues that are inextricably tied to the gravamen of the plaintiffs' cause of action and are not subject to Rule 12(b)(1) treatment."

That is - a trial - now commenced - is needed to determine the facts.

Katrina Property Owners Lawsuit

Check out this SlideShare Presentation:

Katrina Property Owners Lawsuit

View more documents from LegalDocs.

The Rhetorical Demands of Law

Lawyers don't ask `what is the truth', but rather `what does the evidence show', I often comment to students who find the observation provocative, rather than routine. This functional approach is akin to the Holmesian `bad man' who looks at law as a set of rewards and detriments, not as a moral code to be internalized.

The subject is elegantly explored in Jack Balkin and Sanford Levinson's 2006 essay Law & the Humanities:

There is, however, an important feature of professional legal education that has a strong connection to the humanities, at least as classically conceived: rhetoric. Simply put, lawyers are rhetors. They make arguments to convince other people. They deal in persuasion.

Practicing lawyers represent clients, and they make arguments that support their client’s interests. They do not actually have to believe what they say; rather, they need to produce arguments that their audience will believe.

To that end, they will borrow from any source and from any species of learning they can to construct arguments that will persuade their audience and help their client win.

This point is the often asserted disconnect between the Olympian detachment of the academy and the practicing lawyer, but as Balkin and Levinson point out, the Rhetorical orientation is deeply embedded in law schools because of their function as professional trainers.

This SSRN link will bring you to the full text. Thanks to Ian Weinstein for the tip.

The Torture Memos

Released by the U.S. Department of Justice, Office of Legal Counsel, April 17, 2009.

An 18-page memo [PDF], August 1, 2002, from Jay Bybee, Assistant Attorney General, OLC, to John A. Rizzo, General Counsel CIA.

A 46-page memo [PDF], dated May 10, 2005, from Steven Bradbury, Acting Assistant Attorney General, OLC, to John A. Rizzo, General Counsel CIA.

A 20-page memo [PDF], dated May 10, 2005, from Steven Bradbury, Acting Assistant Attorney General, OLC, to John A. Rizzo, General Counsel CIA.

A 40-page memo [PDF], dated May 30, 2005, from Steven Bradbury, Acting Assistant Attorney General, OLC, to John A. Rizzo, General Counsel CIA.

How smart is a Smart Car?

Newton told us something about equal and opposite reactions. The net result of that principle when a Mercedes C300 crashes head on into a Smart Car - at 40 mph (80 mph closing speed) - the Mercedes slows by 27mph and the Smart Car goes into reverses speed at 13mph.

Here's the New York Times article with video courtesy of the Insurance Institute for Highway Safety.

Choosing a lawyer - Carol Burnett & Tim Conway

It's one of the most important decisions of your life. Especially when the charge is murder. Carol Burnett and Tim Conway show you how it's done in a classic simulation scripted by Ian Weinstein.

Rhetoric

Sixty years ago the standard classical education - such as one got at any Jesuit college - included Rhetoric as a required course. The great classic of course was Aristotle's Rhetoric (as discussed in this Stanford Encyclopedia of Philosophy article.)  High school study of Latin included Cicero's prosecution of Catiline, particularly the First Oration.  Fifty years ago! when I started high school at Brooklyn Prep, extemporaneous speech-making was a highly valued skill, its practitioners celebrated.

Aristotle defines the rhetorician as someone who is always able to see what is persuasive (Topics VI.12, 149b25). Obama fits the bill. James Fallows has pointed out the President's response to Ed Luce of the Financial Times:

PRESIDENT OBAMA: I believe in American exceptionalism, just as I suspect that the Brits believe in British exceptionalism and the Greeks believe in Greek exceptionalism. I’m enormously proud of my country and its role and history in the world. If you think about the site of this summit and what it means, I don’t think America should be embarrassed to see evidence of the sacrifices of our troops, the enormous amount of resources that were put into Europe postwar, and our leadership in crafting an Alliance that ultimately led to the unification of Europe. We should take great pride in that.

And if you think of our current situation, the United States remains the largest economy in the world. We have unmatched military capability. And I think that we have a core set of values that are enshrined in our Constitution, in our body of law, in our democratic practices, in our belief in free speech and equality, that, though imperfect, are exceptional.

Now, the fact that I am very proud of my country and I think that we’ve got a whole lot to offer the world does not lessen my interest in recognizing the value and wonderful qualities of other countries, or recognizing that we’re not always going to be right, or that other people may have good ideas, or that in order for us to work collectively, all parties have to compromise and that includes us.

And so I see no contradiction between believing that America has a continued extraordinary role in leading the world towards peace and prosperity and recognizing that that leadership is incumbent, depends on, our ability to create partnerships because we create partnerships because we can’t solve these problems alone.

3rd Restatement of Torts - Wake Forest Symposium

Many of the leading academic thinkers about tort law gathered the first week of April to discuss the Third Restatement of Torts. The project, begun by the late Gary Schwartz of UCLA, and Harvey Perlman (now Chancellor of University of Nebraska), came into the hands of a new team mid-stream. Michael Green and Bill Powers (who were Reporters for the Apportionment of Liability Restatement) took the reins.

They have a product near completion. It addresses key concepts such as duty, scope of liability (proximate cause), liability for emotional distress, and landowner liability (proposing a new framework).

Green and Powers were bold enough to invite many of the leading lights, including both critics and supporters.

The audio and the papers are available here.