A federal judge is planning to strike as unconstitutional "'under all circumstances'" Ohio's ban on same-sex marriage, Reuters reports. U.S. District Judge Timothy Black previously ruled in favor of the plaintiffs in order to allow same-sex widowers married outside of Ohio to be listed on their husbands' death certificates, Reuters also reports.
I'm writing several times a day about products liability for Law.com/The National Law Journal. Occasionally I cross-post a blog I find particularly interesting.
The U.S. Supreme Court disfavored setting individual damages through statistical sampling in Wal-Mart Stores Inc. v. Dukes. But Alexandra Lahav, a University of Connecticut School of Law professor, argues there remains a role for sample trials in mass torts.
"Right now, the way the law is, you couldn't have a mandatory sampling regime" of cases picked by the plaintiffs and cases picked by the defendants and award damages based on the average of verdicts in those cases, Lahav said in an interview.
But academics have argued that the use of sample trials could comport with due process if used to establish a rebuttable presumption of what damages awards should be, said Lahav, who focuses on due process concerns in class actions and mass actions.
"One of the biggest issues facing courts today in civil procedure is the massive influx of cases," Lahav said—whether in the Deepwater Horizon case or litigation over products that have been mass-distributed.
There are problems with winding up mass-torts through accords in which plaintiffs' law firms settle their inventory of cases separately, Lahav said. Some lawyers are better at negotiating than others and can reach better results for their clients.
Then too, defendants sometimes offer more to plaintiffs with lower-value claims to persuade them to settle at the expense of plaintiffs with higher-value claims and greater injuries, Lahav said. Legal ethicists have “expressed the concern that some plaintiffs will be sold out in favor of other plaintiffs," she said.
If there were more transparency to settlements, Lahav said, she would worry less about whether plaintiffs are getting fairly compensated. Inventory settlements "may be perfectly fair,” she said. “They may be fabulous."
And sample trials would allow for plaintiffs to feel they have been heard, she said.
“Everybody else can look at those [sample] cases and see what happens,” Lahav said. “It's almost like a representative or surrogate. [While] they won't get their catharsis of having their very own trial, they'll get to feel that, at least, the defendant was called to account.”
A convicted Pennsylvania child molester argues that his conviction for failing to register as a Megan's Law offender can't stand because the state law in effect at the time was ruled unconstitutional by the Pennsylvania Supreme Court, The Scranton Times Leader reports. The law was found unconstitutional because it was in legislation involving several other topics and violated the "single subject rule" in Pennsylvania's constitution, the Times Leader further reports.
Defendant Jose Ramos was long a suspect in the disappearance of Etan Patz, a notorious missing-child case in New York City, the Times Leader further reports.
(Hat tip to Roger DuPuis, the author of this article, for flagging this case).
After a federal judge struck down Michigan's ban on same-sex marriage last week, 100 couples who wed in the 24 hours or so after the decision are now in legal limbo, the Detroit Free Press reports. The Sixth Circuit issued an order late on Saturday to stay the lower court ruling declaring the ban unconstitutional. An estimated 300 same-sex marriage licenses were issued in Michigan. And the state also has not decided if it will recognize marital rights for same-sex couples who wed.
"Dan Ray, a constitutional law professor at Thomas Cooley Law School, said the marriages that were performed before the stay was issued are valid," the Free Press further reports.
A federal judge struck down an Arkansas law banning most abortions starting at 12 weeks of pregnancy, if a fetal heartbeat could be detected by standard ultrasound, as unconstitutional, Reuters reports: "U.S. District Judge Susan Webber Wright ruled that the law 'impermissibly infringes a woman's Fourteenth Amendment right to elect to terminate a pregnancy before viability' of the fetus, as established by the U.S. Supreme Court."
The decision lets stand the requirement that women seeking abortions must undergo ultrasounds to determine if fetal heartbeats are present, Reuters also reports.
A federal judge in Tennessee has issued a preliminary injunction against applying that state's ban on same-sex marriage to three couples married in other states that do recognize same-sex marriage, The Tennessean reports. U.S. District Judge Aleta Trauger said the ban "fails to meet constitutional standards under even a minimal review," The Tennessean further reports.
A lawsuit also is planned to challenge the ban "regarding hose who married in other states and live here [in Tennessee, those who want to end those marriages but can’t obtain a divorce, and those denied typical probate proceedings because their spouses died," The Tennessean also reports.
Meanwhile, three news lawsuits have been filed to challenge Indiana's statutory ban on same-sex marriage, the Associated Press reports. One plaintiff had to pay $300,000 more in Indiana inheritance tax after her same-sex spouse died, the AP further reports.
The Third Circuit is considering a constitutional challenge to New Jersey's ban on lawyers putting complimentary quotes from judges' opinions into ads, the New Jersey Law Journal. Only the full text of the opinion with the comments can be presented, the Journal notes.
On one hand, proponents of the ban argue it ensures that the judiciary does not appear to be biased in favor of one side and won't be pulled into impermisible judicial endorsements. On the other hand, one of the appellate judges said during oral argument that judges' opinions "'can be quoted all over the place,' in law reviews, symposia and in court," so why can't a judge's comment about an attorney in an opinion be used in attorney advertising, the Journal further reports.
A challenge to Michigan's ban on same-sex marriage and on joint adoption by same-sex couples is going to a bench trial this week, the Detroit Free Press reports: "A key issue in this trial will be whether children raised by same-sex parents fare better or worse in life than children raised by heterosexual parents — or whether there’s no difference in their well-being." The plaintiffs argue that even under the lowest level of constitutional scrutiny, rational basis, that there is no reason to deny them the right to get married and adopt children, the Free Press further reports.
The Massachusetts Supreme Judicial Court, 5-2, ruled this week that law enforcement may not a track a suspect's movements from cellphone data without getting a warrant, The Wall Street Journal reports. The court held, "'“even though restricted to telephone calls sent and received (answered or unanswered), the tracking of the defendant’s movements in the urban Boston area for two weeks was more than sufficient to intrude upon the defendant’s expectation of privacy,'" WSJ reported from the opinion. The court was applying the state constitution, not the federal constitution.
The Indiana Senate has approved a proposed amendment to the state constitution to prohibit same-sex marriage, Reuters reports. The amendment must now be approved again by legislators next legislative session and then go to voters in 2016. The good news is that the House, when passing the amendment, changed the wording so civil unions would not be barred.
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