Activists Courts

[dennisw]

I imagine the wrong ruling in this case could have a dismal effect on the economy.


http://online.wsj.com/article/SB1000...n_AboveLEFTTop

Climate Change and the Courts
A curious case of judicial recusal on the Fifth Circuit.

One of the most destructive mass litigation theories ever devised—the climate tort—is working its way through the courts, and now with a troubling twist. To wit, green plaintiffs may have found a way to handpick sympathetic judges.

In the class-action Comer v. Murphy Oil, a dozen Gulf Coast property owners whose homes were damaged by Hurricane Katrina are suing 33 energy companies for the "nuisance" of the carbon emitted when people use their products. The claim is that these emissions allegedly contributed to climate change that allegedly increased global surface air and water temperatures that allegedly caused sea levels to rise and thus allegedly compounded the storm's damage.

Last year, Comer was dismissed by a district judge, who sensibly ruled that the Mississippi residents couldn't trace the harm they suffered to any specific company because global warming is, well, global. But the case was resurrected by a three-judge panel of the Fifth Circuit Court of Appeals—prompting the entire court to rehear the appeal en banc. The full court was expected to affirm the original district court decision, though seven of the 16 judges recused themselves because they held stock in one or more of the companies being sued.

The en banc arguments were scheduled for this month, until the Fifth Circuit announced in April that "new circumstances have arisen that make it necessary for another judge to recuse." That move deprived the panel of a quorum and thus its ability to rehear Comer. No further explanation was offered, but it's likely another judge acquired a financial interest in one of the defendants. Judges have the discretion to disclose in a situation like this but aren't required to do so, and a court spokesman didn't return our call.

The climate tort is gaining a legal toehold in part because any judge with reasonably diversified investments will have some kind of conflict of interest and will therefore be disqualified. Since any energy company—or any business or exhaling person—contributes in some way to carbon emissions, anyone could be sued if the courts allow this theory to move forward. More ominously, plaintiffs can add defendants to the suit for the purposes of targeting judicial recusals and a more favorable hearing, given that federal financial disclosure forms are public information.

In Comer, did one of the more liberal Fifth Circuit judges buy stock specifically to blow up the quorum? That isn't as far-fetched as it sounds. One of the appellate judges who waved a similar suit through the Second Circuit last year, Peter Hall, admitted at a February conference that he doubted these nuisance cases stood much chance of success.

"Expert evidence, which is the kind of thing that will be needed in this case, ultimately, to prove causative action and whether that can be done beyond preponderance of the evidence, certainly remains an open question," Judge Hall said. But he added that the "nuisance action by nuisance action" approach was so burdensome and costly that it was like "a sword of Damocles" hanging over companies that would eventually force the political branches to adopt climate policies.

In other words, these suits are naked political intimidation meant to coerce cap and tax or some other expensive carbon crackdown regardless of what Congress wants. The same judge-shopping strategy could also apply to the Supreme Court, where Samuel Alito and Stephen Breyer hold stock in Comer defendants and Sonia Sotomayor heard the Second Circuit case. If the Comer plaintiffs succeeded in forcing one more Justice to recuse, the High Court would lack a quorum and be left unable to rule on the merits even if it wanted to.

The Fifth Circuit will decide what to do this week, and we hope the judges will find a way to reconstitute their quorum before this damaging legal theory gains any more traction.

[dennisw]

More judicial activity which should have negative impact on the economy. The impact of judicial picks by the Dems is having a huge impact on our lives. Please note, Last year 14 of 16 Ninth Circuit cases were reversed by the High Court. Can you imagine what will happen if Obama's picks dominate the SC?


http://online.wsj.com/article/SB1000...433157580.html

The judicial activists on the Ninth Circuit struck again this week, upholding the certification of a massive class action lawsuit against Wal-Mart. The decision reaches the outer galaxy of employment discrimination lawsuits, letting plaintiffs lawyers sue employers based primarily on statistical imbalances in pay and promotions.

In a 6-5 decision, the court affirmed a 2004 lower court ruling that allowed a gender discrimination suit against the retailer to go forward as a class action. Wal-Mart is accused of paying female workers less that their male colleagues and giving fewer promotions. The appellate court did not address the discrimination claims but only whether female workers could sue collectively.

Wal-Mart sought, on due process grounds, to defend against each accusation and on an individual basis, arguing that the six women who filed the original suit weren't representative of the experiences of hundreds of thousands of female workers that plaintiffs wanted covered in the class.

To the delight of the plaintiffs bar, the majority ruled that the "factual evidence, expert opinions, statistical evidence, and anecdotal evidence provide sufficient support to raise the common question whether Wal-Marts's female employees nationwide were subject to a single set of corporate policies (not merely a number of independent discriminatory acts)." Anecdotal evidence?

Writing for the minority, Judge Sandra Ikuta summed up the myriad problems with this decision, noting that the ramifications of the court's activism go well beyond the Wal-Mart case. "The majority's ruling provides scant limits to the types of classes that can be certified," she wrote. "Put simply, the door is now open to Title VII [discrimination] lawsuits targeting national and international companies, regardless of size and diversity, based on nothing more than general and conclusory allegations, a handful of anecdotes, and statistical disparities that bear little relation to the alleged discriminatory decisions."

The ultimate goal for plaintiffs lawyers is of course not to win these cases but to pressure companies to settle after the class has been certified. Wal-Mart says it will appeal the ruling to the Supreme Court. Last year 14 of 16 Ninth Circuit cases were reversed by the High Court. This one deserves the same fate.

[FMF DOC]

WOW and tax dollars were wasted on this

[dennisw]

Pretty much every Complaint I've ever read and many that I've written -- that's the nature of the beast. You throw everything into a Complaint, and that's all that is being talked about -- the ability to file a case. If the evidence is too circumstantial that the Plaintiff can't prove his or her case, then there's a dismissal or finding for the Defendant.

Again, this is the same goal of every class-action. No one wants to actually go to trial, lawyers working on contingency lose money if they go to trial.

I just don't see the big deal here, none of this seems new. Maybe I'm missing something?

Makes one wonder why the WSJ would waste their time putting this issue in an editorial if it's business as usual and nothing new. I'm thinking the fact that the lawsuit which does not specifically identify individuals as being discriminated against, but that discrimination can be proven just by looking at the company's roster of employees is the threshold difference. That and the the 9th court of appeals allowing these employees to file a class action suit based solely upon "statistical imbalances in pay and promotions," has put a scare into shareholders and opened the floodgates for similar lawsuits.

Also, I think it is important to note that during the last year 14 of 16 Ninth Circuit cases were reversed by the High Court. Maybe it's my lack of legal knowledge, but it appears the ninth court is using a different criteria then the Supreme Court when they are reviewing these cases. It gives one the impression that the 9th Court of Appeals is wasting money and time.

[rdret1]

The Ninth Circuit C of A is infamous for issuing controversial decisions, many of which have been overturned by SCOTUS. They have a long history of liberal activism. IMO, they make these decisions just to see what they can get through the cracks. According to Wikipedia, 59% of the current judges were appointed by Dem Presidents. It was their 2002 decision in Newdow v. U.S. Congress which stated a school could not lead students in the Pledge of Allegiance because of the words "Under God". Fortunately, this was overturned in 2004, but without answering the major point of if the Pledge violated the "establishment clause".

This is a quote from the Los Angeles Times:

"July 11, 2007|Brian T. Fitzpatrick, BRIAN T. FITZPATRICK, a professor at Vanderbilt Law School, was a clerk on the 9th Circuit and the U.S. Supreme Court.

ANOTHER Supreme Court term has come to a close, and, while many things changed in the law, one thing stayed the same: The justices spent much of their time reversing the U.S. 9th Circuit Court of Appeals."

First sentence in the article. Personally, I don't have a lot of faith in anything the 9th Circuit does.

[ZonieDiver]

It was their 2002 decision in Newdow v. U.S. Congress which stated a school could not lead students in the Pledge of Allegiance because of the words "Under God". Fortunately, this was overturned in 2004

I never liked - and still don't - the "under God" part - since it was added at a later date for "other" reasons. I said it, and still say it, but never really liked saying it.

[dennisw]

Last year, Comer was dismissed by a district judge, who sensibly ruled that the Mississippi residents couldn't trace the harm they suffered to any specific company because global warming is, well, global. But the case was resurrected by a three-judge panel of the Fifth Circuit Court of Appeals—prompting the entire court to rehear the appeal en banc. The full court was expected to affirm the original district court decision, though seven of the 16 judges recused themselves because they held stock in one or more of the companies being sued.

Global warming is global! Does anyone still believe in global warming, and is the existence of global warming so matter of fact, one can use it as a basis for a lawsuit? The fact that this case was resurrected at the Fifth Circuit is a travesty.

[Richard]

I never liked - and still don't - the "under God" part - since it was added at a later date for "other" reasons. I said it, and still say it, but never really liked saying it.

Ditto.

Richard

[The Reaper]

Originally Posted by NORMAL550GIRL

Me three. I always felt like it was personal, as if the gov was telling me what my religion was.

How does it do that?

All of the major religions I have seen observe a higher power or deity, some more than one.

Do you believe in a faith that has no God?

TR

[Dozer523]

Just got back from Friday Mass, Add me to the "godless list".
Here's why I don't like it.

In 1953, the Roman Catholic men's group, the Knights of Columbus mounted a campaign to add the words "under God" to the Pledge. The nation was suffering through the height of the cold war, and the McCarthy communist witch hunt. Partly in reaction to these factors, a reported 15 resolutions were initiated in Congress to change the pledge. They got nowhere until Rev. George Docherty (1911 - 2008) preached a sermon that was attended by President Eisenhower and the national press corps on 1954-FEB-7. His sermon said in part:

"Apart from the mention of the phrase 'the United States of America,' it could be the pledge of any republic. In fact, I could hear little Muscovites repeat a similar pledge to their hammer-and-sickle flag in Moscow."
After the service, President Eisenhower said that he agreed with the sermon. In the following weeks, the news spread, and public opinion grew. Three days later, Senator Homer Ferguson, (R-MI), sponsored a bill to add God to the Pledge. It was approved as a joint resolution 1954-JUN-8. It was signed into law on Flag Day, JUN-14. President Eisenhower said at the time:

The change was partly motivated by a desire to differentiate between communism, which promotes Atheism, and Western capitalistic democracies, which were at least nominally Christian.

The phrase "Atheistic Communists" has been repeated so many times that the public has linked Atheism with communism; the two are often considered synonymous. Many consider Atheism as unpatriotic and "un-American" as communism.

Most communists, worldwide, are Atheists. But, in North America, the reverse is not true; most Atheists are non-communists. Although there are probably many Atheist and Humanist legislators at the federal and state levels, few if any are willing to reveal their beliefs, because of the intense prejudice against persons holding these belief systems.
Another example of "doin' a good thing for a bad reason" IMHO

Site: http://www.religioustolerance.org/nat_pled1.htm

[ZonieDiver]

I should have known it was the "Knights of Columbus"! Those guys with their funny "Pirates of Penzance" admirals' hats and swords. It always freaked me out a bit to be in church and have those guys in the "opening parade" - on the rare occasions when that happened.

Of course, I looked at attending mass with the ex and the girls kind of like PT. All that up and down, on your knees, stand up, sit down, back to your knees.

Religion, two parades, lots of singing, refreshments, and PT - it doesn't get a lot better than that! (I never partook of the "refreshments" though an older retired priest often kept trying - not seeing my arms crossed over my chest!)

[Dozer523]

Originally Posted by NORMAL550GIRL

Learn somethin' new every day from you, Dozer. Although most of it I can't repeat in a public setting.

Figured out how to un-tie that knot with no hands, didja? Good! Now we'll move to the "Aunt Jemimah treatment"

Originally Posted by ZonieDiver

Of course, I looked at attending mass with the ex and the girls kind of like PT. All that up and down, on your knees, stand up, sit down, back to your knees.

Religion, two parades, lots of singing, refreshments, and PT - it doesn't get a lot better than that! (I never partook of the "refreshments" though an older retired priest often kept trying - not seeing my arms crossed over my chest!)

It looks like a dance, but it's really far and near recognition signals to catch the "Proddies".
Little Dude just made his First Holy Communion and no longer has to do the "cross your arms and hope for a blessing walk to the alter - thing". His take? "The body tastes like Styrofoam and the blood is yucky".

[greenberetTFS]

Originally Posted by NORMAL550GIRL

Learn somethin' new every day from you, Dozer.

Although most of it I can't repeat in a public setting.

NG,

I know exactly where your coming from,I have the same situation with him also !.......

Big Teddy

[greenberetTFS]

Originally Posted by ZonieDiver

I never liked - and still don't - the "under God" part - since it was added at a later date for "other" reasons. I said it, and still say it, but never really liked saying it.

Zonie,

WHY ???????

Big Teddy

[Penn]

http://www.freep.com/article/2010060...rom-Southfield

I am on record here as having taken Justice Sotomayor nomination as a positive addition to the court. That said, her recent inclusion/voting would negate my opinion that she will be right of center.