April 2010

  • April 30, 2010

    The operator of the Upper Big Branch mine in West Virginia, where 29 miners died earlier this month, is coming under increasing scrutiny from law enforcement officials. News broke today that the FBI is interviewing dozens of current and former employees of Massey Energy, the mine operator, as part of a criminal investigation into the deadliest American mining disaster in 40 years. Massey denied any wrongdoing, and offered full cooperation with federal law enforcement officials.

    In the wake of the Upper Big Branch disaster, as well as two other deadly mining accidents this month, some legislators are seeking ways to strengthen mine safety. Despite the Mine Safety and Health Administration having notoriously weak enforcement tools, coal-state "lawmakers remain reluctant to enter the emerging debate over what's gone wrong, and whether Congress should step in with new laws to protect the nation's miners," reports Mike Lillis at The Washington Independent.

    Though some families have already filed wrongful death suits against the mine operator, Massey is reportedly offering each family $3 million. In exchange, the families are being asked to dismiss pending suits or forgo their right to sue, one family said. According to Mark Moreland, an attorney involved in one of the suits, these settlement offers so soon after the deaths come at a tough time for families and help Massey "avoid answering hard questions raised publicly in litigation." Massey spokespeople refused to comment about the reported settlement offers.

  • April 30, 2010

    The massive oil spill in the Gulf of Mexico, which has reportedly reached the coast, is threatening fisheries and fragile ecosystems, and spurring litigation.

    A group of Louisiana fisherman, shrimpers and commercial boaters filed suit against BP, the oil company renting the offshore drilling rig that continues to spill oil into the Gulf after a deadly explosion. According to an attorney involved in the suit, Daniel Becnel Jr., people from all five states lining the Gulf Coast have voiced interest in joining the expanding class action.

    Coast Guard officials estimate that the now-sunken rig is continuing to leak 5,000 barrels of oil daily -- five times the initial estimate. There is no indication that the well will be sealed any time soon.

    The spill provoked significant responses from federal and state officials. Louisiana Gov. Bobby Jindal declared a state of emergency. Homeland Security Secretary Janet Napolitano called the incident "a spill of national signifigance," and created two command posts in Alabama and Louisiana to monitor the federal response. Interior Secretary Ken Salazar launched an immediate review, including on-site inspections of 30 offshore drilling rigs and 47 production platforms operating in the Gulf. The U.S. Navy and Air Force are also included in managing the spill, lending scores of vessels and aircraft to an operation already involving over 1,000 people.

  • April 30, 2010
    Guest Post

    By Alex Kreit, Assistant Professor of Law & Director of the Center for Law and Social Justice, Thomas Jefferson School of Law. Kreit is also Chair of the City of San Diego's Medical Marijuana Task Force & President of the San Diego Lawyer Chapter of ACS.

    Judging by the early election season news coverage a California ballot initiative to tax and control cannabis -- for recreational, not just medicinal, uses -- is poised to be one of the most closely watched races of the cycle. So, just what would this ballot initiative do and how likely is it to pass? This post will provide a primer on the law and politics of California's marijuana legalization initiative.

    The aspect of the ballot initiative that I've found catches most folks by surprise is what it won't do: make the sale of marijuana legal in the state of California. That's right, despite being billed in media reports as a vote on marijuana legalization, the proposal would not directly legalize the commercial sale, cultivation, or distribution of marijuana. Instead, it would allow local governments to enact ordinances to tax and regulate the commercial sale of marijuana.

    In other words, Amsterdam-style marijuana coffee shops would be legal only in cities or counties that wanted to permit them. And, in the cities and counties that did not take up the ballot measure's invitation, buying and selling marijuana would remain illegal. In the near term, it is likely only a relatively small percentage of localities would decide to opt-in and so marijuana would remain illegal to buy and sell in most of the state even if the initiative were to pass.

  • April 29, 2010
    Untying the Knot
    Marriage, the State, and the Case for Their Divorce
    Tamara Metz

    By Tamara Metz, Assistant Professor of Political Science and Humanities, Reed College 

    Forty years ago citizens of California told the state to get out of marriage. Judges and lawyers turned a blind eye as droves of otherwise-enemies colluded to concoct evidence of marital misconduct to secure the divorces they wanted. The state could protect their children and divide their property, but tell them whether or not they could separate? No way. This was a private matter. Members of the legal profession, concerned about faith in the system, led reform efforts. In 1969, the first no-fault divorce law was introduced. By the mid-1980s, most states had followed suit.

    The remarkable ease with which this dramatic change took effect reflects an unusual convergence of public opinion and political principle. Growing numbers of citizens simply believed government had no business in the cultural, emotional, and religious side of marriage. Legal advocates had an easy time making the case, I propose, because the logic fit comfortably with the liberal traditions that animate our constitutional democracy.

    Today, the citizens of California again lead the charge for change in marriage law. This time, however, combatants have had a harder time settling on strategies: marriage is a fundamental right; no, it's a unique civil institution; it's about family, reproduction, heterosexuality, no, citizenship; it's a matter of justice, stability, our future on the planet; a matter of equal protection; no, due process. In its latest iteration: its democracy versus liberty.

    There's a good reason both sides are having a harder time: they share the crucial but deeply problematic assumption that the state should, even must be in the business of defining, conferring, and regulating marriage. As the earlier generation of Californians sensed, this arrangement -- the establishment of marriage -- conflicts with our basic liberal democratic commitments to and strategies for securing liberty, equality, and stability in our deeply diverse society.

    Or so, as a political theorist, I argue in Untying the Knot.

  • April 29, 2010
    Guest Post

    [Editors' Note: The funeral for civil rights leaders Dr. Dorothy Height takes place today at the Washington National Cathedral. ACS is re-posting this guest contribution honoring Dr. Height's work.]

    By Laura W. Murphy, Director of the ACLU Washington Legislative Office
    The passing of Dr. Dorothy Height was a huge loss to the nation, particularly to American women. She inspired me and so many women leaders because she embraced and nurtured her sisters and daughters in the movement. I lost a role model and a mentor who, whenever we met, always clasped my hand in hers, looked me in the eyes and said, "Carry on."

    She had a determination to stand her ground as a leader for over seventy years throughout the entire modern day civil rights movement which is sadly, to this day, a deeply male-dominated sphere. It is striking how Dr. Height outlasted so many men who were the civil rights leaders of the moment. It was her extraordinary combination of skills and attributes that were hardwired into her being: a tremendous memory for names, dates and events, flawless command of the English language, a unique speaking voice, an elegant style of dressing, her height, her steady temperament and unwavering good manners. Dr. Height was the embodiment of a dominant yet subtle form of grace.

    Dr. Height's quick mind could out-maneuver compatriots and adversaries. She was the tortoise and not the hare in the race. She stood steadfast with a regal bearing and a twinkle in her eye while the guys rushed to grab the microphone, and effectively chided them without humiliation when they forgot that women are the backbone of the most durable black institutions -- whether it is the church, the voter registration efforts, the sororities, the Links, Jack & Jill, or her own National Council of Negro Women -- groups with longevity and real staying power. Our mothers and sisters licked the envelopes, went door to door, registered the voters, went to the polls, fed the leaders and trained the kids to keep the movement going. Dr. Height never forgot about us.