Sunday, January 25, 2015

Respecting the Seventh Amendment | Joanne Doroshow

Respecting the Seventh Amendment | Joanne Doroshow

by Joanne Doroshow  //Center for Justice and Democracy at New York Law School

Center for "There are few democratic institutions in America more embattled than the civil justice system. No matter what one thinks of "tort reform," the political term often used to describe laws to weaken this system, one thing is clear: For the last 35 years, questions about the future of civil juries have been dumped on the plate of Congress and every statehouse in America. Many legislatures have been pressured to undermine the civil jury system by restricting access to the courts and limiting juries' power and authority. We are seeing more proposals to limit the right to jury trial than ever before.

If the framers of our Constitution were alive today, they would be appalled by this development. Our nations' founders considered the right to trial by jury in civil cases to be one of our most important rights.

In virtually every major document and speech delivered before the Revolution, the colonists portrayed trial by jury as, if not their greatest right, one that was indispensable. The right to civil jury trial was a key issue over which the American Revolution was fought. It was so essential to our nation's founders that they preserved it directly in the Bill or Rights as the 7th Amendment. In a 1979 case, U.S. Supreme Court Justice William Rehnquist explained:

 [T]hose who oppose the use of juries in civil trials seem to ignore [that] the founders of our Nation considered the right of trial by jury in civil cases an important bulwark against tyranny and corruption, a safeguard too precious to be left to the whim of the sovereign, or, it might be added, to that of the judiciary.
A chief function of the jury system is to provide a check on official or arbitrary power. It was the colonists' experience that the civil jury system could be vulnerable to political attacks by those in power. 
The framers could hardly have imagined that such attacks would still be a problem 223 years after the Amendment was ratified. Unfortunately, many lawmakers in recent times have allowed the civil jury system to be weakened or, in some cases, completely shattered.

Consider all the ways this has happened. Many states have enacted "caps on damages," or limits on compensation to injured victims after they have won their case. The determination of damages is one of the jury's most important functions. As the Georgia Supreme Court said in its 2010 decision striking down caps in that state, "the determination of damages rests 'peculiarly within the province of the jury.'" Caps undermine a jury's fundamental purpose. Even worse, they transfer the jury's job to cash-greased politicians, who force courts to apply "one-size-fits-all" limits irrespective of the evidence that a jury sees."

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Thursday, January 22, 2015

Justice Scalia keeps both sides guessing in Fair Housing Act case: In Plain English : SCOTUSblog

Justice Scalia keeps both sides guessing in Fair Housing Act case: In Plain English : SCOTUSblog:

by Amy Howe

"Yesterday the Supreme Court did something that it didn’t get to do in two other recent cases involving the Fair Housing Act: it heard oral arguments. As I noted in my preview of Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, the previous two cases had settled before the oral argument. The reason? Civil rights groups were worried that the conservative Justices on the Roberts Court would rule that the Fair Housing Act does not allow lawsuits based on “disparate impact” – that is, an allegation that a law or policy has a discriminatory effect, even though the discrimination was not on purpose. 



The ability to bring such claims is important, they believe, because these days lawmakers and landlords rarely tell people that they intend to discriminate; discrimination is much more subtle, and it’s easier to prove that an action has a discriminatory effect. Many businesses, landlords, and lawmakers want the Court to rule that disparate-impact claims are not allowed under the FHA for much the same reason: why should we face lawsuits, they ask, if we have good intentions and didn’t mean to discriminate but our actions just so happen to disproportionately affect minorities?

Going into yesterday’s oral argument, we would have expected a close case. After all, the nine Justices on the Roberts Court often divide five to four in high-profile cases like these. 


What most people would not have anticipated, however, was that the case could turn out to be a real nail-biter, with Justice Antonin Scalia suggesting at times (but not at others) that he might be inclined to vote to allow disparate-impact claims. Let’s talk about the argument in Plain English.,,,

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Wednesday, January 21, 2015

How long? Not long! - ML King at Montgomery , Alabama

How long? Not long! M.L.King, Jr. at Montgomery, Alabama, March 25, 1965
The speech they were not allowed to use in the movie - because it is copyrighted and owned by the King estate.
The VIDEO
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Tuesday, January 20, 2015

BP spill: Penalty Phase Settlement likely - Bloomberg

It's Looking More Like a BP Settlement Over Gulf Disaster - Bloomberg
By Margaret Cronin Fisk and Laurel Brubaker Calkins Jan 20, 2015 

Last week’s ruling that BP Plc (BP/)’s Macondo well dumped less oil into the Gulf of Mexico than the U.S. government claimed may trigger a settlement before a decision on the amount it must pay after a trial set to begin this week. A federal judge determined on Jan. 15 that the penalty will be based on the size of the spill being 3.19 million barrels, about 25 percent less than estimated by the government. 
That ruling, which was followed by a 5.3 percent jump in BP shares, reduced the potential maximum pollution fines for the 2010 spill to $13.7 billion from $18 billion and increased the incentives for a settlement. “There’s a very good chance -- about 75 percent -- that they’ll settle,” said David Berg, a Houston trial attorney who has been following the litigation. 
Even if the case doesn’t settle before a trial verdict, BP probably won’t face a maximum fine against BP, Berg said. The range will likely be from $8 billion to $10 billion, he said. Even a fine of that size would be the largest civil penalty under the Clean Water Act, according to the Environmental Protection Agency. The current record is the $1 billion settlement Transocean Ltd. (RIG), which owned the Deepwater Horizon drilling rig that burned and sank in the Gulf spill, reached with the U.S. in 2013."

Monday, January 19, 2015

Will the F.D.A. Kill Off E-Cigs? - NYTimes.com

Will FDA regulation crush the "safe" e-cigarette under the wight of the regulations it is developing for ordinary tobacco products? frets the "free enterprise" oriented AEI op-ed writer. - gwc

Will the F.D.A. Kill Off E-Cigs? - NYTimes.com

by Sally Satel // American Enterprise Institute


WASHINGTON — ELECTRONIC cigarettes, battery-powered devices that convert a solution of nicotine and other chemicals into a vapor that can be inhaled, or “vaped,” have the potential to wean a vast number of smokers off cigarettes. No burned tobacco leaves, no cancer-causing tar: a public health revolution in waiting.

The problem is, not enough smokers are switching to e-cigarettes, despite their relative safety — and understandably so. Smokers are barraged with news about inaccurate labeling, shoddy counterfeits and poorly made e-cigarettes that emit toxins and cancer-causing chemicals in vapor. And to the frustration of smokers, public health experts and, yes, manufacturers, the Food and Drug Administration, which has not yet set up sensible regulations, is making the situation worse.

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Oil Prices to Play Into BP Fine - WSJ

Oil Prices to Play Into BP Fine - WSJ:


“We look forward to presenting our case at trial,” said J. Andrew Langan, a lawyer representing BP’s subsidiary. The company “should be subject to a Clean Water Act penalty at the lower end of the statutory range.”

BP had $30.7 billion in cash by the end of September. But the company argues that it has no obligation to lend money to its subsidiary and that the court should disregard the broader BP group’s financial resources in imposing a fine.

BP also argues it should get credit for leading the “largest environmental response operation in the nation’s history,” according to court pleadings. The company has incurred $43 billion of spill-related costs, including criminal and civil settlements and $14 billion for the Gulf cleanup.

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Sunday, January 18, 2015

Will the Supreme Court Annihilate One of the Most Effective Tools for Battling Racial Segregation in Housing? | Economic Policy Institute

Will the Supreme Court Annihilate One of the Most Effective Tools for Battling Racial Segregation in Housing? | Economic Policy Institute

The segregation of low-income minority families into economic and racial ghettos is one cause of the ongoing achievement gap in American education. Students from families with less literacy come to school less prepared to take advantage of good instruction. If they live in more distressed neighborhoods with more crime and violence, they come to school under stress that interferes with learning. When such students are concentrated in classrooms, even the best of teachers must spend more time on remediation and less on grade-level instruction.
The Economic Policy Institute, together with the Haas Institute for a Fair and Inclusive Society at the University of California, have organized a large group of housing scholars—historians and other social scientists—to sign a friend-of-the-court brief urging that housing policies perpetuating segregation should be banned.
The case was filed by the Inclusive Communities Project (ICP), a Dallas civil rights group that had been promoting racial integration in the Dallas area by assisting African American families who were eligible for rent subsidies (commonly known as “Section 8” vouchers) to find affordable apartments in predominantly white neighborhoods. This was difficult to accomplish because so many of the tax-subsidized low-income family housing developments that the Texas Department of Housing approved were located in heavily minority and low-income communities.
Those who defend practices like those of the Texas Department claim that they do not intentionally promote segregation but that developers pick minority and low-income communities for subsidized housing, not to purposely reinforce segregation, but because such communities are convenient for prospective tenants who live nearby.
Convenience should be no excuse, however, for perpetuating segregation. Our brief makes the following argument: historically, the federal, state and local governments have, in concert with each other and with private interests, acted to purposely segregate metropolitan areas by race. Once these patterns of segregation were established by deliberate racial policy, placement of federally subsidized housing (to be occupied predominantly by minority tenants) in already segregated neighborhoods unlawfully reinforces this segregation, even if Jim Crow policies are no longer in effect and no purposeful intent to segregate can be proven. It should be deemed unlawful for government agencies simply to respond to developer proposals without considering their racial impact, because the Fair Housing Act requires these agencies to affirmatively pursue integrated housing. As our brief recounts, a much earlier (1972) Supreme Court decision stated that the Fair Housing Act’s main purpose is to “replace ghettos ‘by truly integrated and balanced living patterns.’” This purpose would be improperly repudiated if the Court were now to permit practices like those of the Texas Department of Housing.
It is unlikely but possible that the Texas case will be settled before the Supreme Court issues its ruling. If so, developers will almost certainly seek another case in which the court will be invited to permit practices that perpetuate segregation, even where a deliberate intent to segregate cannot be proven. Possibly, we may again file a brief, tailored to the facts of a new case. If you are an historian or social scientist who would like to join any future such brief, please let us know atrrothstein@epi.org and steve.menendian@gmail.com.


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Bad Blood - Death Case Lawyer vs. Texas Court | The Marshall Project

Bad Blood | The Marshall Project

by Maurice Chammah



"On Wednesday, the judges of Texas’ highest criminal court told a defense attorney named David Dow he would not be able to practice in front of them for the next year. The Court of Criminal Appeals decided that Dow had filed a motion to stop the execution of his client, Miguel Angel Paredes, too late, and that since he’d done the same thing in a different case in 2010, he will now be suspended.

Neither the court nor Dow, a professor at the University of Houston Law Center and one of the best known death penalty defense attorneys in the country, will comment publicly. But this move is the latest evidence of an ongoing feud in Texas between lawyers who appeal on behalf of inmates facing executions, Dow chief among them, and the judges who rule on their claims.

On the surface, the fights have been about deadlines, but, as criminal justice blogger Scott Henson described Dow’s relationship with the judges back in 2009, “Basically these folks just don't like each other on a level that transcends any given issue.”

Miguel Paredes was executed last October for a triple murder of gang rivals, committed in 2000. The summer before the execution, he wrote a letter to Dow asking for help, and Dow volunteered — without being appointed to the case — to investigate Paredes’ claims. It took a while owing to Dow’s busy schedule, but he found that Paredes’ original lawyer had called no witnesses at the trial and that Paredes was allowed to waive an early appeal while on anti-psychotic medications.

Dow filed an appeal and a call for a stay seven days before the execution. The court said he should have filed it the day before. The court has explicitly said the deadline is seven days before an execution, but in practice attorneys know that they must have it in eight days before. It wasn’t the first time Dow had clashed with the court over deadlines.*****"

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William Howard Taft on Voting Rights - Concurring Opinions

William Howard Taft was the 27th President and 10th Chief Justice of the United States.  This excerpt from his 1909 inaugural address conveys the patronizing racial attitudes of the conservative Ohio Republican - whose party's views were generally better than those of Democrats.  The "progressive" Democrat who succeeded Taft - Woodrow Wilson - segregated the United States armed forces.  - gwc

William Howard Taft on Voting Rights - Concurring Opinions

BY GERARD MAGLIOCCA · January 10, 2015

Periodically I like to do basic research in the hope that this generate new ideas and that I’ll learn something. In addition to reading all of the party platforms (still working on that), I decided to read all of the presidential inaugural addresses. One of the most interesting passages I’ve come across so far was in President Taft’s 1909 Inaugural. This gives a clear (though unsettling) account of how people viewed race relations and suffrage at the time.


The consideration of this question can not, however, be complete and full without reference to the negro race, its progress and its present condition. The thirteenth amendment secured them freedom; the fourteenth amendment due process of law, protection of property, and the pursuit of happiness; and the fifteenth amendment attempted to secure the negro against any deprivation of the privilege to vote because he was a negro. The thirteenth and fourteenth amendments have been generally enforced and have secured the objects for which they are intended. While the fifteenth amendment has not been generally observed in the past, it ought to be observed, and the tendency of Southern legislation today is toward the enactment of electoral qualifications which shall square with that amendment. Of course, the mere adoption of a constitutional law is only one step in the right direction. It must be fairly and justly enforced as well. In time both will come. Hence it is clear to all that the domination of an ignorant, irresponsible element can be prevented by constitutional laws which shall exclude from voting both negroes and whites not having education or other qualifications thought to be necessary for a proper electorate. The danger of the control of an ignorant electorate has therefore passed. With this change, the interest which many of the Southern white citizens take in the welfare of the negroes has increased. The colored men must base their hope on the results of their own industry, self-restraint, thrift, and business success, as well as upon the aid and comfort and sympathy which they may receive from their white neighbors of the South.

There was a time when Northerners who sympathized with the negro in his necessary struggle for better conditions sought to give him the suffrage as a protection to enforce its exercise against the prevailing sentiment of the South. The movement proved to be a failure. What remains is the fifteenth amendment to the Constitution and the right to have statutes of States specifying qualifications for electors subjected to the test of compliance with that amendment. This is a great protection to the negro. It never will be repealed, and it never ought to be repealed. If it had not passed, it might be difficult now to adopt it; but with it in our fundamental law, the policy of Southern legislation must and will tend to obey it, and so long as the statutes of the States meet the test of this amendment and are not otherwise in conflict with the Constitution and laws of the United States, it is not the disposition or within the province of the Federal Government to interfere with the regulation by Southern States of their domestic affairs. There is in the South a stronger feeling than ever among the intelligent well-to-do, and influential element in favor of the industrial education of the negro and the encouragement of the race to make themselves useful members of the community. The progress which the negro has made in the last fifty years, from slavery, when its statistics are reviewed, is marvelous, and it furnishes every reason to hope that in the next twenty-five years a still greater improvement in his condition as a productive member of society, on the farm, and in the shop, and in other occupations may come.

The negroes are now Americans. Their ancestors came here years ago against their will, and this is their only country and their only flag. They have shown themselves anxious to live for it and to die for it. Encountering the race feeling against them, subjected at times to cruel injustice growing out of it, they may well have our profound sympathy and aid in the struggle they are making. We are charged with the sacred duty of making their path as smooth and easy as we can. Any recognition of their distinguished men, any appointment to office from among their number, is properly taken as an encouragement and an appreciation of their progress, and this just policy should be pursued when suitable occasion offers.

But it may well admit of doubt whether, in the case of any race, an appointment of one of their number to a local office in a community in which the race feeling is so widespread and acute as to interfere with the ease and facility with which the local government business can be done by the appointee is of sufficient benefit by way of encouragement to the race to outweigh the recurrence and increase of race feeling which such an appointment is likely to engender. Therefore the Executive, in recognizing the negro race by appointments, must exercise a careful discretion not thereby to do it more harm than good. On the other hand, we must be careful not to encourage the mere pretense of race feeling manufactured in the interest of individual political ambition.

Personally, I have not the slightest race prejudice or feeling, and recognition of its existence only awakens in my heart a deeper sympathy for those who have to bear it or suffer from it, and I question the wisdom of a policy which is likely to increase it. Meantime, if nothing is done to prevent it, a better feeling between the negroes and the whites in the South will continue to grow, and more and more of the white people will come to realize that the future of the South is to be much benefited by the industrial and intellectual progress of the negro. The exercise of political franchises by those of this race who are intelligent and well to do will be acquiesced in, and the right to vote will be withheld only from the ignorant and irresponsible of both races.

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Saturday, January 17, 2015

Alabama State Constitution of 1901/Initial Constitution - Wikisource, the free online library

OTHERWISE: Alabama State Constitution of 1901/Initial Constitution - Wikisource, the free online library: "Watching Selma the thought occurred to me - where did the County Clerk get the authority to deny the vote?  The Alabama Constitution of 1901 limited the franchise to men, required the poll tax to be paid, and made it a criminal offense (bribery) to pay or advance to another the money to pay the poll tax.  But there was more - much more. -gwc"



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