Friday, August 29, 2014

Judge: Texas School Finance System Unconstitutional | The Texas Tribune

In 2011 the Texas Legislature cut $5 billion from the education budget and further aggravated the inequities among school districts.  The background is detailed in the complaint of Edgewood Independent School District, one of several lawsuits that were filed.  Yesterday State District judge John Dietz in Austin ruled in favor of the plaintiff schools. - gwc
Judge: Texas School Finance System Unconstitutional | The Texas Tribune:

by Morgan Smith

"Nearly three years after more than 600 Texas school districts filed litigation challenging the state's school finance system, a Travis County district judge has ruled in their favor.

In an almost 400-page opinion supported by extensive findings of fact and conclusions of law released Thursday, District Court Judge John Dietz of Austin said that the state's school finance system is unconstitutional not only because of inadequate funding and flaws in the way it distributes money to districts, but also because it imposes a de facto state property tax.

Certain to be appealed by the state, the lawsuit that arose after lawmakers cut roughly $5.4 billion from state public education funding in 2011 will now continue to the Texas Supreme Court.

Though Dietz made no public remarks on Thursday, his decision is a reprise of an earlier oral ruling in February 2013. From the bench at the time, Dietz discussed what he called the "civic, altruistic and economic" reasons for supporting public education.

"We realize that others provided for us when we were children. We realize that children are without means to secure their education. Just as others provided for us when we were in school, now is the time when we provide for others," he said, going on to describe the societal benefits of a well-educated population: lower crime rates, fewer people who need public assistance and a greater state income."



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Mervyn Susser, 92, Dies; Studied Illness and Society - NYTimes.com





Mervyn Susser and his wife Dr. Zena Stein
Mervyn Susser, 92, Dies; Studied Illness and Society - NYTimes.com:



Mervyn Susser has died.  The physician, epidemiologist, and philosopher of science was 92 when he passed at home in Hastings on Hudson.  The former editor of the American Journal of Public Health, he was a South African-born progressive, who collaborated with his wife Zena Stein.  I had just began to seriously look at the problem of how to prove causation of disease in occupational illness cases where no exact mechanism  of injury could be identified. Susser gave me direction as I represented the Trial Lawyers Association  in the asbestos-related disease case Landrigan v. Celotex, a landmark guide in the use of scientific evidence.



When I was in graduate school at B.U. Howard Zinn’s syllabus on method included Karl Popper, the positivist philosopher of science and anti-communist polemicist.  Popper was a skeptic who asserted that propositions could not be proven, only falsified.  On that foundation he built a vision of science that ironically saw it as the brick by brick construction of certainty.  In the culture of science that view was embraced as a strong attachment to the null hypothesis and an extreme attachment to calculations of probabilities.

Mervyn Susser, like the great progressive epidemiologists Irving Selikoff  and Sir Austin Bradford Hill, was motivated by the fight against disease and the need to identify causal relationships.  The epidemics of heart and lung disease associated with tobacco and asbestos motivated Selikoff and Hill. Susser, a pioneer of community medicine, worked in a clinic treating Black citizens in Johannesburg. In the progressives view causal inference was to be achieved neither by idolatry of formal tests of statistical significance nor by anecdotal snapshots.  Rather the public health called for a socially aware observational perspective informed by clinical methods, pathology, and biostatistics.  No single factor was decisive.  The health of patients called for effective strategies, not skepticism.



Susser's was always the approach of a physician concerned for his patients.  He wanted to help and that required rejection of skepticism, magic, and authoritarianism:

"The philosophy of causal inference reaches deep into abstractions. Applied in clinical (practice), however, it yields some practical benefits. For clinicians, inference is a constant and every day activity. In going about their business of diagnosis and treatment, clinicians are constantly making logical inferences, that is to say, drawing conclusions from a set of facts and premises...This logic (of causal inference) enables the contemporary clinician, in dealings with patients, to shift from charismatic priest-like authority to the authority of tried knowledge and of rational predictions founded on explicit models of causal relationships."  
This approach offered guidance for judges and lawyers who seek to achieve a just result for those who suffer from illness, and for those who would act to prevent illness.  Dr. Susser explained that scientific skepticism is to be doubted.  “We have to practice believing”.  He wrote:

In the end, a quality which lawyers should understand better than any- judiciousness- matters more than any.  Scientists use both deductive and inductive inference to sustain the momentum of a continuing process of research.  The courts of law, and the courts of application, use inference to reach decisions about what action to take. Those decisions often cannot rest on certitudes, most especially when population risks are converted into individual risks. It is my firm belief, nonetheless, that practical decisions that draw sustenance from scientific inference will be better decisions than those that do not.  


References

George W. Conk

Against the Odds: Proving Causation of Disease with Epidemiological Evidence, 3 Shepard's Expert and Sci. Evidence Q. 103 (1995)



Mervyn Susser

Causal thinking in the health sciences: concepts and strategies of epidemiology (1973)

Susser, `Causal Thinking in Practice: Strengths and Weaknesses of the Clinical Vantage Point', Pediatrics 74:842-849 (1984)

 `The Logic of Sir Karl Popper and the Practice of Epidemiology', American Journal of Epidemiology 124:711-718 (1986)

`Rules of Inference in Epidemiology', Regulatory Toxicology and Pharmacology 6:116-128, 116 (1986)

Susser, Epidemiology, Health and Society, Selected Papers, Oxford University Press, New York, 1987.

`What is a Cause and How Do We Know One?  A Grammar for Pragmatic Epidemiology', American Journal of Epidemiology 133:635-648 (1991)

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Third Circuit OKs ERISA Attorney Fees Under Catalyst Theory | New Jersey Law Journal

Third Circuit OKs ERISA Attorney Fees Under Catalyst Theory | New Jersey Law Journal:

The U.S. Court of Appeals for the Third Circuit has ruled that attorney fees may be awarded in Employee Retirement Income Security Act cases under the catalyst theory, which entitles plaintiffs to fees where the pressure of a lawsuit causes a defendant to voluntarily change its conduct.

In a nonprecedential ruling in Boyle v. International Brotherhood of Teamsters Local 863 Welfare Fund, a panel led by Judge Jane Richards Roth, and including Judges Thomas I. Vanaskie and Joseph A. Greenaway Jr., reversed a New Jersey district judge's ruling that the ERISA statute does not permit attorney fee awards under the catalyst theory.

In doing so, the court awarded attorney fees to plaintiffs Allen Boyle and Michael Luongo, despite upholding the lower court's ruling granting summary judgment to the defendants.

Roth pointed to the U.S. Supreme Court's 2010 ruling in Hardt v. Reliance Standard Life Insurance, in which it found that the ERISA statute gives district courts broad discretion to award attorney fees to plaintiffs.

The Hardt court said the ERISA statute does not limit attorney fee awards to "'prevailing parties,'" but instead allows parties that show "'some degree of success on the merits'" beyond a "'trivial success on the merits or purely procedural victory'" to recoup fees, according to Roth.

Roth found that while Boyle and Luongo ultimately did not prevail in the case, they achieved some success with their lawsuit by prompting their former employer to voluntarily offer to retroactively reinstate benefits to early retirees and to reimburse them for any alternative coverage they may have purchased during the four-month period in 2011 when benefits ceased.

Read more: http://www.njlawjournal.com/id=1202668491346/Third-Circuit-OKs-ERISA-Attorney-Fees-Under-Catalyst-Theory#ixzz3BnfSLaSL


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Tuesday, August 26, 2014

GM ignition switch compensation program receives more than 300 claims, including 107 death-related | MLive.com

GM CEO Mary Barra


GM ignition switch compensation program receives more than 300 claims, including 107 death-related | MLive.com:

by Michael Wayland

"DETROIT, MI- The General Motors Co. ignition switch compensation program has received 309 claims through Monday, including 107 related to fatal accidents.

Camille S. Biros, of Feinberg Rozen LLP, which is overseeing the program for the Detroit-based automaker, said payments to eligible victims and their families are expected to be finalized by the end of September. She said the number of claims filed has no correlation to the amount of individuals expected to be paid through the program, which could cost GM hundreds of millions of dollars.


 The voluntary compensation program was announced by GM and renowned compensation attorney Kenneth Feinberg in late-June. There is no financial cap on the program and everyone that meets stringent guidelines set by Feinberg are eligible for the program.

Feinberg Rozen started accepting claims Aug. 1. It will continue accepting claims through Dec. 31.  


 GM has linked the faulty ignition switches to at least 13 deaths and 54 crashes, but others, including victims' family members and lawyers, say the death toll is closer to 100. GM has said its numbers could increase based on Feinberg's findings because it only included those involved in front-end collisions."



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Saturday, August 23, 2014

TaxProf Blog: Welcome to the Law School Class of 2017: Should You Stay or Should You Go?

TaxProf Blog: Welcome to the Law School Class of 2017: Should You Stay or Should You Go?: "Forbes:  Law School Begins: Here's A Message to the New Crop of 1L's, by Michael I. Krauss (George Mason):

" Later this week I will teach the first Torts class to George Mason Law School’s newly matriculated 1L’s.  Here is my message, both to them and to 1L’s nationally.

You have decided to enter law school during “interesting” times.  The business model for the private practice of law is a-changin, and many say it is broken.  Law school tuition is higher than ever, yet incomes are stagnant and perhaps dropping.  Law school loans, guaranteed by Uncle Sam and not dischargeable by bankruptcy, help you pay for tuition, but every increase in the generosity of federal largess is yet another incentive for universities to capture rents by increasing tuition further.

Mason students are at a “top-50″ school, but many readers of this column will be matriculating at lower-ranked institutions (and others will be at higher-rated schools).

Most Mason students ranked near the top of their undergraduate class and did quite well on their LSAT.  But half of you will get GPA’s at Mason that are lower than you’ve ever experienced before, both because your undergrad institution had succumbed to grade inflation and because our mandatory GPA mean immunizes us against this to some extent.

Those in the bottom half of the class won’t be eligible for Law Review, and they generally won’t be invited to those coveted on-campus interviews with BigLaw firms.  For them, and for many in the top half of the class as well, “summer camp” at a BigLaw firm after 2L will never happen; and the famous $160K starting salary after graduation will be pie in the sky.  Most law grads learn to their sorrow that the income distribution for freshly-minted JD’s is quite bimodal.  And those who do catch that brass ring will be in for a life that is usually exhausting and often boring, if not soul-destroying.

Are these facts part of an effort to get you to rethink your decision to attend law school?  For some of you, frankly, yes; but for others, absolutely not.  ..."



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Justice Ginsburg Skeptical of Two-Year Law School Idea | National Law Journal

Marcia Coyle interviews Justice Ruth Ginsburg. - gwc

Justice Ginsburg Skeptical of Two-Year Law School Idea | National Law Journal:

by Marcia Coyle // National Law Journal



"The turmoil in Ferguson, Mo., and the controversial stop-and-frisk policy in New York City illustrate a “real racial problem” in America, one that recent U.S. Supreme Court decisions have done little to help, Justice Ruth Bader Ginsburg told The National Law Journal.
The high court was “once a leader in the world” in rooting out racial discrimination,” the justice said in a wide-ranging interview late Wednesday in her chambers.

“What’s amazing is how things have changed.”
Ginsburg recalled the Burger Court’s unanimous landmark ruling in 1971 in which the justices, led by Chief Justice Warren Burger, a Nixon appointee, embraced the powerful legal tool known as the “disparate impact” framework for uncovering discriminatory policies that are neutral on their face but disproportionately harm minorities.
In that ruling (Griggs v. Duke Power), Burger spoke of “built-in head winds” for minorities, she said. There was then a sensitivity that the requirement of a high school diploma for a janitor’s job, for example, would inevitably screen out black applicants.
“It was a very influential decision and it was picked up in England,” Ginsburg recalled. “That’s where the court was heading in the ’70s.”

Some of the Roberts Court’s conservatives, as well as conservative organizations, have challenged the continued use of the disparate-impact theory, which many credit for playing a major role in transforming the workplace for women and minorities.

The court’s more recent rulings restricting affirmative action and voting rights, she added, have not “helped” the country deal with its racial problems. The Voting Rights Act, in particular, has been the most important law “in terms of making people count in a democracy,” Ginsburg said. She repeated her disagreement with the 5-4 majority’s decision last year in Shelby County, Ala. v. Holder that struck down a key section of the law, which had been renewed by overwhelming majorities in both chambers of Congress in 2006."



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How the World Sees Ferguson, MO // Foreign Affairs


Mary L. Dudziak | How the World Sees the Protests in Ferguson | Foreign Affairs: "As the turmoil in Ferguson, Missouri, unfolds, questions about the United States’ commitment to human rights are once more headlining news coverage around the world. The uncomfortable international spotlight on such domestic problems should not be surprising. American racial inequality regularly dominated foreign news coverage during the 1950s and 1960s. U.S. policymakers were eventually forced to respond, in part to protect America’s image abroad.

As it reflects on how to handle the protests in Ferguson, the Obama administration would do well to consider the fact that, in previous decades, federal intervention was eventually needed to protect both civil rights and U.S. foreign relations.

The killing of Michael Brown, an unarmed teenager, by a police officer -- and the resulting protests -- have been front-page news in many countries. On August 20, Saudi Arabia’s Al Watan and the Kuwait Times published the same shocking photograph of an officer in riot gear pointing a rifle at a woman on the ground. The United Arab Emirates’ Gulf News featured white law enforcement officers in military-style gear holding high-powered rifles. Coverage of the events in Ferguson has been particularly extensive in Turkey, too.

And news services across Europe, Africa, and South America have followed the story. Of particular note, the unrest in Ferguson was featured prominently on Russian state television, reminiscent of the Soviet Union’s extensive coverage of American race discrimination during the Cold War. And in China, commentary in Xinhua, the state news agency, suggested that Ferguson shows that a “racial divide still remains a deeply rooted chronic disease that keeps tearing U.S. society apart.”

Many foreign writers covering the story charge the United States with hypocrisy. The United States has “assaulted almost 200 countries across the world for their so-called poor human rights records,” Li Li, a reporter for Xinhua, recently wrote. But “what the United States needs to do is to concentrate on solving its own problems rather than always pointing fingers at others.” Similarly, Iran's Ayatollah Ali Khamenei took to Twitter to criticize the U.S. human rights record, posting photos from Ferguson alongside historic images of racial segregation and using the hashtag #Ferguson. Criticism from Khamenei and Chinese sources might be expected, but history shows that violations of rights in the United States generally becomes a justification for other nations to ignore human rights in their own backyards. Flagrant race discrimination, moreover, undermines U.S. efforts to appeal to the hearts and minds of peoples of the world."

Monday, August 11, 2014

Do we need the FDA? Milton Friedman on Libertarianism

An interview with Milton Friedman.
Can tort replace drug regulation by the FDA?

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Sunday, August 10, 2014

Plaintiffs move against Feinberg

http://donovanlawgroup.wordpress.com/2011/11/10/florida-plaintiffs-vow-to-hold-kenneth-r-feinberg-feinberg-rozen-llp-and-gccf-accountable-for-delay-deny-defend-strategy/

Open letter to GM MDL PSC

http://donovanlawgroup.wordpress.com/2012/12/21/bp-oil-spill-an-open-letter-to-the-mdl-2179-plaintiffs-steering-committee-psc-2/