Federal Judge Rules Airlines Must Stand Trial On 9/11 Negligence

American Airlines and United Airlines have been trying to get a negligence case thrown out against them over their actions on 9/11 that led to the destruction of the World Trade Center in New York City. World Trade Center Properties, which is Larry Silverstein's company, had sought to hold the airlines liable for the destruction of the WTC and claimed damages of $8.4 billion.

Judge Alvin Hellerstein ruled that the airlines couldn't get the case dismissed on summary judgment, but also capped the damages sought to $2.8 billion (the amount that Silverstein paid for the 99-year lease).

Judge Hellerstein said at this stage he could not reasonably determine the defendants' claim that insurance payments received by WTCP covered the damages the company is seeking from them.

"On this record, before trial, I am not able to make such findings," Judge Hellerstein said in a court filing.

The case is in re September 11 litigation, Case No. 21-MC-101, U.S. District Court, Southern District of New York.

Part of the airlines argument was that Silverstein has already recovered insurance proceeds.

What the ruling indicates is that there's a material issue of fact and summary judgment wasn't warranted.

If Silverstein were to recover at trial, I'd expect the airlines to immediately appeal. A ruling in Silverstein's favor would seriously hurt the airlines' bottom line, which is still on shaky ground (American is in bankruptcy and a judge just threw out the pilots' union contract deal). There's no way that this would settle since so much money is at stake and the airlines' financial situation is perilous.

If Silverstein doesn't win at trial, it would reduce his ability to build at WTC and elsewhere (though the real issue regarding construction of the stalled 2WTC and 3WTC is a lack of tenants who have committed to leasing at the unfinished buildings. Silverstein had also been hoping to build a skyscraper a few blocks away on Church Street, but that too has stalled after demolition of the former Moodys building.

NCAA, Pro Sports Leagues Suing New Jersey Over Sports Betting Law

There are four states where sports gambling is legal: Nevada, Delaware, Oregon, and Montana. That seems to be unfair to other states that have later legalized gambling, such as New Jersey. This year, Gov. Chris Christie and the legislature sought to overcome federal law authorizing only Nevada to allow sports betting by enacting a sports betting law for the state.

Now, the NCAA and the major pro sports leagues are suing the state.

The nation's four professional sports leagues and the NCAA filed suit against Gov. Chris Christie and other state officials in federal court in Trenton this morning to block New Jersey from allowing sports betting in Atlantic City casinos and the state's race tracks.

The suit, brought by Major League Baseball, the National Football League, the National Basketball Association, the National Hockey League and the National Collegiate Athletic Association cites a 1992 federal law, the Professional and Amateur Sports Protection Act, prohibiting all but four states to permit betting on collegiate and professional games. The measure was sponsored by Bill Bradley, a former Democratic senator from New Jersey who also played basketball for the New York Knicks.

The suit asserts that "the outcome of collegiate and athletic contests must be determined, and must be perceived by the public as being determined, solely on the basis of honest athletic competition."

New Jersey was the only state in 1992 to be be given an opportunity by Congress to approve a referendum allowing sports betting, but the matter was never placed on the ballot.

In November, New Jersey voters approved a ballot referendum to amend the state Constitution to allow sports betting , which is currently only permitted by federal law in Nevada, Delaware, Oregon and Montana.

It's really hilarious to read that the leagues and NCAA are concerned about New Jersey's gambling threatening the "character and integrity" of events and threatens the "reputations and goodwill" between fans and teams. After all, that would be an argument applicable to any state that had sports gambling.

This seems to be a curious argument being made by the sports organizations. After all, they haven't been concerned about the gambling in the states where it is legal (and grandfathered into the federal law prohibiting sports gambling elsewhere). If they were that concerned about the vice of sports gambling, then they would have tried to block sports gambling in those states. Well, they have tried, though they haven't been successful.

This has more to do with a poorly conceived federal law that is discriminatory against states that didn't consider sports betting prior to the enactment of the federal law. It protects the interests of the states where sports betting is legal and intrudes into an area where states were previously free to consider their own policy on gambling.

Ruling Allows For-Profit Colleges To Continue Bilking Students

People who are considering higher education better think twice about going to a for-profit institution. You're more likely to end up with a whole load of debt and nothing to show for it since the degrees offered aren't worth the paper they're printed on.

And a ruling allows for-profit colleges to continue bilking their students with degrees that aren't worth the paper they're written on and can continue to get federal student loans to cover the costs (even as the students can't repay since they can't land jobs due to having degrees that aren't worth the paper they're written on).

Congratulations are in order for the for-profit college industry, which won a major court ruling this week—a judge ruled that the Department of Education could not penalize these fake schools just because they routinely destroyed the financial future of their graduates. Here are the outrageous DoE rules, which were struck down as "arbitrary and capricious," via the WSJ:

The rules would have required that a school meet one of three requirements for three of four years, or lose access to federal student aid: at least 35% of recent graduates are repaying their loans; loan payments eat up no more than 12% of graduates' average annual earnings; or payments consume no more than 30% of graduates' average discretionary income.

The problem is even worse when you consider that 10% of students nationwide are enrolled in for-profits, but they take 25% of federal student loans, and account for 50% of defaults (and see here).

Heavy Dose of Irony With Supreme Court's Decision on Health Care Act

Yesterday's historic decision upholding the constitutionality of the Affordable Care Act (HCR/Obamacare) was not without a heavy dose of irony.

Where can one start? How about with the person who was the swing vote: Chief Justice John Roberts.

Roberts had been nominated by President George W. Bush and many on the left castigated his conservative views. Indeed, the confirmation vote split Democrats neatly in half. Here's the list of those who voted against Roberts' confirmation as Chief Justice of the Court:

Democrats voting no:
Daniel Akaka of Hawaii
Evan Bayh of Indiana
Joseph Biden of Delaware
Barbara Boxer of California
Maria Cantwell of Washington
Hillary Rodham Clinton of New York
Jon Corzine of New Jersey
Mark Dayton of Minnesota
Dick Durbin of Illinois
Dianne Feinstein of California
Tom Harkin of Iowa
Daniel Inouye of Hawaii
Edward Kennedy of Massachusetts
John Kerry of Massachusetts
Frank Lautenberg of New Jersey
Barbara Mikulski of Maryland
Barack Obama of Illinois
Harry Reid of Nevada
Charles Schumer of New York
Debbie Stabenow of Michigan
Jack Reed of Rhode Island
Paul Sarbanes of Maryland

You'll note more than a few of those Democrats were among those who were behind enacting the PPACA (PL 111-148). They're now loudly hailing the affirmation of the health care reform package and individual mandate but were opposed to Roberts on ideological grounds. Likewise, many Republicans who had supported Roberts, were gravely disappointed about the decision and were vowing to repeal the Act as soon as next month. Pundits and bloggers alike were calling for Roberts' head.

The job of the Senate in confirmation isn't making sure that the nominee of the Court has pure political views that align with the wishes of Congress. It is to advise and consent - does the nominee have what it takes to sit on the highest court in the nation.

I always thought that Roberts was supremely qualified for the Court - as did many Republicans.

Yet, it was the vote on the health care reform package that upset the apple court. Those Democrats who pushed for the health care reform are now cheering Roberts for upholding the health care act's individual mandate, while Republicans and right wingers are calling for Roberts' head because he somehow ruled the individual mandate constitutional when they thought it wasn't.

Roberts held true to his confirmation hearing statement - his job is to call balls and strikes, not to pitch or bat. As his opinion in the case shows, he rejected the Commerce Clause and Necessary and Proper clause because they were Congressional overreach, and yet sustained the Act on taxation powers grounds. He also directly addressed judicial activism and construing acts of Congress:

Now, the Court, of course, has the obligation, and has been recognized since Marbury v. Madison, to assess the constitutionality of acts of Congress, and when those acts are challenged, it is the obligation of the Court to say what the law is. The determination of when deference to legislative policy judgments goes too far and becomes abdication of the judicial responsibility, and when scrutiny of those judgments goes too far on the part of the judges and becomes what I think is properly called judicial activism, that is certainly the central dilemma of having an unelected, as you describe it correctly, undemocratic judiciary in a democratic republic.

That's exactly what was done, and yet Republican after Republican was calling the Act unconstitutional, including GOP Nominee for President Mitt Romney.

Republican leaders pounced, with Senator Mitch McConnell of Kentucky, the minority leader, declaring: “This law is a tax. This bill was sold to the American people on a deception.”

Mr. Romney chose instead to cast the health care overhaul as poisonous to the economy and a prime example of the Obama administration’s expansion of government.

“What the court did not do on its last day in session, I will do on my first day as president of the United States,” Mr. Romney said in a rare appearance on Capitol Hill shortly after the ruling. He added, “Our mission is clear: If we want to get rid of Obamacare, we’re going to have to replace President Obama.”

Romney's vow to act to repeal the Act is not without its own sense of irony. He was Governor of Massachusetts when the state enacted its own form of individual mandate. Romney was once one of the biggest proponents of the kind of health care reform ultimately backed by President Obama.

Then, there the matter that Republicans in general had backed some form of individual mandate for more than 20 years until the Obama Administration decided to use its own version of individual mandate. That's when the Republicans shifted to oppose it at all costs and repeatedly called it unconstitutional.

What can anyone make of the fact that they were pushing a policy objective for 20 years that they only considered unconstitutional once the other side of the aisle took them up on the matter and enacted it as law.

I really think that if a Republican in the White House went ahead with the same proposals, the sides would be a mirror image of what we've got- Republicans would be hailing the decision while Democrats would be aghast at the imposition of the individual mandate (but because it didn't go nearly far enough). Much of the rancor and rhetoric is purely partisan politics at work. After all, who in their right mind would repeal provisions that extend benefits to dependents up to age 26 (expanding coverage to millions) or eliminating lifetime insurance limits. The GOP has made it a central part to their campaigns going into November that they would seek to repeal the entirety of the reform act, but if they simply switched around a few minor provisions, they'd be more than happy to declare Obamacare dead and rename it. They want to deny President Obama any achievement, especially on health care reform.

Despite the landmark ruling, there are issues with the reform package that need reform. Treatment of OTC drugs for flex spending accounts should be revised to once again include it as a reimbursable item. Congress has already address onerous paperwork requirements. Costs for procedures and drugs should be made more transparent so that everyone knows what items cost - and allow for more comparison shopping, which should work towards bending the cost curve and produce additional savings for consumers and health care providers alike.

If Congress wants to find a different way to fund the variety of programs, then by all means let them figure out a way to do so. But with the GOP refusing to accept any tax hikes, even those that are the result of a Congressional decision to allow tax rates to return to pre EGTRRA (Bush tax cuts) levels when the rate cuts expire (and they've already extended the cuts into 2013), that's pretty much a nonstarter.

What is also surprising is that when polled on specific items of the reform act, they show significant support, but they oppose the package as a whole. That goes to how the Republican message has won the day on health care reform, even though their constituents largely approve of changes. It also points out the complexity with the health care law and how most people don't understand what's going on.

Further Observations of the Health Care Decision

The President will be speaking at 12:15PM. No doubt he'll be addressing the decision.

I've been scanning the dissent, and it seems that ruled the individual mandate exceeded the Commerce Clause/Necessary and Proper, and that since Congress didn't identify it as a tax, neither should they, even if the outcome is a functional tax.

It's not much of a surprise in either case. And there's plenty of grounds on which to lay the Commerce Clause/Necessary and Proper rationale - and with which the majority concurred.

Both the majority and dissent found that individual mandate exceeded Commerce Clause/Necessary and Proper. Where they diverge is that Chief Justice Roberts found justification under the Congressional power to tax, while the dissent found that since Congress didn't identify this as a tax, and the Administration's justifications of same can't cover up deficiency, they struck down the individual mandate.

Frankly, both sides are fairly well reasoned, even if you don't agree with the dissent. Plain language reading, versus intent. By Congress enacting a provision imposing the mandate under the IRC, that would seem to make it a tax, which is something discounted by the dissent. The dissent focuses on the treatment of the 5000A provision, and references within other parts of the PPACA as a penalty, not a tax.

As someone else has pointed out to me, those who currently have health insurance are paying a tax of sorts - they pay higher premiums so as to cover costs imposed on health care providers by those who are indigent or unwilling to pay health care costs. It is possible that the HCR would reduce those costs but I'm not sure that will happen.

There remain parts of the PPACA that do need to be fixed (as the paperwork requirements showed); OTC flex spending should be reformed for instance. But there's a framework of items that do expand health care insurance coverage to a greater percentage of Americans.

Health Care Reform Act Survives the Supreme Court

In a huge surprise to many on the right, the US Supreme Court upheld the individual mandate provisions of the Patient Protection and Affordable Care Act of 2010 (HCR/Obamacare). The Court ruled that it was a constitutionally permissible tax imposed by Congress.

The bottom line of the Court's decision, where Chief Justice John Roberts broke with the conservative group (Scalia, Thomas and surprisingly Kennedy), is that the entire ACA is upheld, with the exception that the federal government's power to terminate states' Medicaid funds is narrowly read.

That overturns the decisions by the 11th Circuit that found the law unconstitutional.

As I've noted, the individual mandate serves as a tax, and that's the grounds on which the Court found that the individual mandate is constitutional. The mandate provisions are set forth at 26 USC 5000A (the Internal Revenue Code) and imposes an annual penalty of $95, or up to 1% of income, whichever is greater, on individuals who do not secure insurance in 2014, which rises to to $695, or 2.5% of income, by 2016 and after (and adjusted for inflation). Families are hit with higher penalties. There are exemptions to the "fine" in cases of financial hardship or religious beliefs

This is a not insignificant sum of money we're talking about. This provision is expected to raise several billion dollars every year it is in operation beginning in 2014, and is part of the revenue side of reforming the health care funding across the country. It is also seen as a critical tool to getting people into the health care insurance pools so that they can help spread the costs of health care for those who are more likely to utilize the insurance policies.

The tax and spend power of Congress is unquestioned. The question was how the Administration had considered this not to be a tax. I thought that was a poor decision on their part. The Administration focused on a Commerce Clause justification, but the Court found that the power was vested in the Congressional power to tax.

UPDATE:
The decision can be found here: NATIONAL FEDERATION OF INDEPENDENT BUSINESS ET AL. v. SEBELIUS, SECRETARY OF HEALTH AND HUMAN SERVICES, ET AL. No. 11–393

Turmoil In Pakistan: Supreme Court Ousts Prime Minister Gilani

Pakistan's political situation has been anything but serene since Pervez Musharaf lost power. Yousuf Raza Gilani was elected Prime Minister but he's run afoul of the Supreme Court once again for failing to investigate and prosecute claims of corruption against Asif Ali Zardari, the country's president.

Today, the court essentially booted him from office.

Local television news stations said leaders of the ruling Pakistan People’s Party were huddled in an emergency meeting and seemed poised to accept the court’s decision and nominate a different leader to the prime minister’s spot, diffusing some of the tension.

“Yousuf Raza Gilani has been disqualified from the membership of parliament from April 26, which is the date of his conviction, and he has also ceased to be the prime minister of Pakistan,” Chief Justice Iftikhar Mohammed Chaudhry read from the court order, according to reports by Geo news and other television channels.

“The election commission shall issue a notice of disqualification and the president is also required to take all necessary steps to ensure the continuation of democratic process in the country.”

But the Associated Press quoted Fawad Chaudhry, an aide to Gilani, saying that Gilani would continue his duties and only the parliament could disqualify the prime minister.

Legal experts were debating whether the disqualification could render moot Gilani’s legislative activity since April 26, including passage of Pakistan’s budget. Some said the court’s decision probably would invalidate at least some of Gilani’s actions over the past eight weeks.

“The prime minister should have left his office back in April, when he was convicted for contempt of court, but he decided to stick to his slot illegally,” retired judge Wajihuddin Ahmed told Geo TV. He said that he thought Gilani’s “day-to-day government affairs” work would likely stand but that other official acts could be declared invalid.

Gilani’s conviction stemmed from his adamant refusal to pursue money-laundering and kickback cases brought by Swiss authorities against Zardari; he faced up to six months in prison but was never sentenced.

This also throws the US-Pakistan relationship into limbo as well as counter terrorism efforts in the frontier provinces. The PPP will try to maintain a veneer of normalcy but this is anything but normal.

All the political turmoil adds to an unstable political and economic situation, including power shortages and riots, and ongoing terrorism in the frontier provinces. The government has been ineffective to resolve any of the issues confronting it.

Yet Another Federal Judge Rules DOMA Unconstitutional

The constitutionality of the federal Defense of Marriage Act (DOMA) will come before the Supreme Court before long. There are too many lower courts finding that its provisions are unconstitutional to contend with. The latest ruling is from the Second Circuit, where District Court Judge Barbara Jones found that the DOMA provision to define marriage intrudes on the states' right of regulating domestic relations. In other words, DOMA violates the 10th Amendment.

She said, "That incursion skirts important principles of federalism and therefore cannot be legitimate, in this court's view."

The judge said the law fails because it tries to re-examine states' decisions concerning same-sex marriage. She said such a sweeping review interferes with a system of government that places matters at the core of the domestic relations law exclusively within the province of the states.

The ruling came in a case brought by Edith Windsor, a woman whose partner died in 2009, two years after they married in Canada. Because of the federal law, Windsor didn't qualify for the unlimited marital deduction on her late spouse's estate and was required to pay $363,053 in federal estate tax. Windsor sued the government in November 2010.

As part of her ruling, Jones ordered the government to reimburse Windsor the money she had paid in estate tax.

The disparate treatment goes to equal protection under the law. Judge Jones' ruling came just days after the 1st Circuit found that DOMA was unconstitutional in denying federal benefits to same-sex couples. Two judges in the 9th Circuit have issued district court rulings along the same lines.

Mubarak Sentenced To Life in Prison For Failing To Stop Brutal Crackdown

Former Egyptian leader Hosni Mubarak will be spending the rest of his life behind bars. He was found guilty of doing nothing to stop the murder of unarmed protesters during the first six days of the protests against his regime. Despite the verdict against Mubarak, several others, including his sons, were found not guilty of similar charges. And there are reports that Mubarak's health condition has worsened and that his lawyers are likely to appeal the ruling:

It was the second verdict against an Arab ruler brought before the law by a popular revolt, after the conviction in absentia last year of Tunisia’s Zine el-Abidine Ben Ali, and for many Egyptians it may be the greatest achievement so far of the uprising that began 16 months ago. With the nation still awaiting the ratification of a new constitution, the election of a new president and the hand-over of power by its military rulers, the decision is Egypt’s most significant step yet toward establishing the principle that no leader is above the law. Yet lawyers critical of Mr. Mubarak immediately warned that the verdict may not survive an appeal. The judge acquitted several lower-ranking security officials of responsibility for the same deaths, raising questions about the chain of command. He also dismissed corruption charges against Mr. Mubarak and his sons on technical grounds, and by early afternoon protesters angry at the flimsiness of the decision were pouring into Tahrir Square, the symbolic heart of the revolt. Egyptian state television reported that within hours of the decision, Mr. Mubarak, 84, had suffered a "health crisis" as he was being flown by helicopter to a Cairo prison from the military hospital where he had awaited the verdict. He was being treated inside the helicopter which he refused to leave, the state network reported.

It's unlikely that Mubarak will ever set forth from a hospital or prison as a free man, though Mubarak's lawyers could have a good case considering the very low evidenciary standard used. Mubarak was sentenced to life as an accessory to murder in the killing of more than 240 protesters at the end of January 2011. At the same time, the judge acknowledged that prosecutors had no evidence showing that Mubarak or his top aides had directly ordered the killing of protesters.

Instead, the judge held Mr. Mubarak responsible for failing to stop the killing — an unusually low standard of proof for a murder conviction under either Egyptian or international law.

Despite the troubles with the case, it's an important step forward for Egyptians considering the decades of governance without regard to human rights and personal and political freedoms.

Turkey Readies Indictments of Israelis Over Gaza Flotilla

Turkey continues pressing ahead with a potential indictment of top Israeli military leaders over the Gaza flotilla that had nothing to do with humanitarian aid and everything to do with seeking a violent confrontation with Israel.

Turkish newspapers are noting that Ankara's prosecutor is preparing a 144-page document that accuses top Israeli officers, including former army chief Gabi Ashkenazi, of ordering intentional killing, wounding of Turkish nationals on Mavi Marmara; charges still need to be approved by Istanbul district prosecutor.

According to the Turkish daily Sabah, Ankara's chief prosecutor Abdurrahman Yalcinkaya is due to file a 144-page indictment targeting Ashkenazi, former Military Intelligence chief Amos Yadlin, former Israel Navy chief Eliezer Maron, and former head of Israel Air force's intelligence wing Avishai Levy over the raid on the Mavi Marmara, which resulted in the deaths of nine Turkish nationals.

The report indicated that Turkey intended to charge the former officials for ordering IDF troops to intentionally kill, wound, and abduct Turkish activists, as well as encourage their torture and loot their belongings.

Turkey issued warrants against all four former Israeli officers, and they could be arrested on arrival in Turkey, the report added.

Israel's raid of the Gaza-bound flotilla proved a watershed moment in Israel-Turkey relations, with the once staunch allies trading blame over responsibility for the incident.

Turkey has insisted that Israel apologize for the raid and its consequences, as well as pay reparations to the families of those killed; Israel has, thus far, refused to do so.

Israeli commandos raided the Mavi Marmara as part of Israel's right to conduct a blockade of Gaza and were met with violence, including individuals carrying knives who assaulted the commandos. It was once those commandos were threatened that they responded with deadly force. Evidence shows that the people on board the Mavi Marmara, including those from the group IHH, had every intention of creating a violent confrontation. That will likely be ignored by the Turkish officials pushing this indictment.

Other ships in the flotilla were raided but no confrontations occurred on them.

The whole purpose of the flotilla was meant to confront Israel over its ongoing sea blockade of Gaza to prevent Hamas from being supplied with weapons and personnel.

That's despite the fact that the UN found that Israel was legally within its rights to enforce the blockade and that its actions were within Israel's legal rights. It hasn't stopped Turkey's leaders from pandering to the Islamists by pushing for indictments and straining its relations with Israel.

Judgment Day in Rutgers Spycam Case For Dharun Ravi

Dharun Ravi will find out today just how long he will spend in prison for his complicity in videotaping his Rutgers University roommate Tyler Clementi, who committed suicide shortly after Ravi posted the video online showing Clementi getting intimate with another man.

Ravi was found guilty of bias-intimidation and invasion-of-privacy against Clementi, but curiously some gay rights groups and some notable gays have gone on the record as being opposed to a harsh sentence. Some are rationalizing that what Ravi did wasn't nearly as bad as what others would consider to be hate crimes. They're urging leniency, despite the fact that the prosecution was able to show that Ravi's actions led to Clementi's suicide.

With Mr. Ravi scheduled to be sentenced on Monday, many of them have argued against the prison term prosecutors have recommended. They say that Mr. Ravi is being punished for the suicide of his roommate, Tyler Clementi, although he was not charged in it, and that pinning blame on him ignores the complicated social pressures that drive gay teenagers to kill themselves.

As repugnant as his behavior was, they say, it was not the blatantly bigoted or threatening actions that typically define hate crimes. Some fear that a sentence that overreaches might provide tinder to antigay sentiment — a New Jersey talk-radio host complained soon after the verdict of the “gay lobby” railroading Mr. Ravi.

While Mr. Clementi’s suicide in September 2010 galvanized public attention on the struggles of gay, lesbian and bisexual teenagers, the question of how to punish Mr. Ravi has revealed the deep discomfort that many gay people feel about using the case as a crucible. “You’re making an example of Ravi in order to send a message to other people who might be bullying, to schools and parents and to prosecutors who have not considered this a crime before,” said Marc Poirier, a law professor at Seton Hall University who is gay and has written about hate-crimes legislation. “That’s a function of criminal law, to condemn as general deterrence. But I think this is a fairly shaky set of facts on which to do it.”

In an op-ed article in The Star-Ledger of Newark this month, Jim McGreevey, who resigned as New Jersey’s governor after declaring himself “a gay American,” argued that Mr. Ravi’s conviction “showed how far we have traveled from the hateful, homophobic past.”

“The criminal justice system worked, this time for a gay victim,” Mr. McGreevey wrote. “But there was something disquieting about the prospect of retributive punishment being meted out on behalf of a gay young man.”

Mr. McGreevey, who now counsels prisoners, argued that jail time would neither rehabilitate nor send a message. “Perhaps the long trail of gay history inevitably leads to this call for punishment,” he wrote, “but it need not.”

I'm sorry, but this is precisely the kind of case that warrants sending Ravi to prison. He knew, or should have known, that his illicit taping of Clementi would harm Clementi, and that it might have negative repercussions.

McGreevey's response is more than a little troubling. Punishing Ravi is absolutely warranted, and yet McGreevey thinks that this is a retributive punishment to send him to prison that wouldn't send a message nor rehabilitate.

It most definitely sends a message - warning others that the state does not look kindly upon violating the civil rights, and that it will act as a deterrent to others who might consider similar actions.

Ravi's legal team is asking for a retrial, but I really doubt that there are grounds on which to find for Ravi. None of the judge's actions rises to the level warranting a retrial.

The fact is that Ravi has to bear responsibility and culpability for his actions, and he will be spending a good long time wondering how he could do so much wrong.

UPDATE:

12:34 p.m. - Dharun Ravi will serve a 30-day jail term, beginning on May 31.

I think that's pretty lenient considering that the judge noted that Ravi showed no contrition at any point for his acts; he never apologized.

Honda May Have Dodged Bullet On Fuel Economy Lawsuits

Honda may have dodged a big bullet today when a circuit court judge reversed a small claims court ruling that found the company responsible for lying about its fuel economy on its hybrid vehicles. The plaintiff in that case had claimed that Honda misrepresented its fuel economy and won nearly $10,000.

Superior Court Judge Dudley W. Gray II ruled Tuesday on Honda's appeal of a small-claims court commissioner's award of $9,867 to Civic owner Heather Peters.

Peters opted out of a class-action settlement giving some 200,000 owners between $100 and $200 each, plus a rebate if they buy a new Honda, electing instead to sue the automaker on her own.

Gray's ruling found, among other things, that while Peters had standing to bring the case in state court, federal regulations govern fuel economy ratings posted on vehicles and advertising claims related to them. The ruling also said that most owners of that type of car achieve fuel economy close to federal Environmental Protection Agency estimates.

Considering that the automakers and EPA sets the fuel economy estimates for the vehicles according to their testing procedures, the mileage figures relate to how those tests are conducted.

Real world driving isn't like those tests. Fuels used in the real world also affect fuel economy. Invariably, the real world driving results will be lower than the fuel economy figures listed on the sticker.

If you can get within 10% of the mileage figures with your current driving style, you'd be doing well. But, if you want to truly improve your vehicle's fuel economy, you'd have to consider driving with hypermiling in mind. Adhering to those kinds of techniques can get mind-boggling levels of fuel economy.

Breivik Wants Death Penalty or Acquittal

Anders Breivik wont get his wish for the death penalty or acquital, despite the fact that his claims that he was acting in self defense simply don't pass the smell test.

Norweigan law permits only a maximum of 21 years in prison.

The right-wing fanatic said he doesn't fear death and that militant nationalists in Europe have a lot to learn from al-Qaida, including their methods and glorification of martyrdom.

"If I had feared death I would not have dared to carry out this operation," he said, referring to his July 22 attacks — a bombing in downtown Oslo that killed eight people and a shooting massacre at a youth camp outside the Norwegian capital that killed 69.

Breivik's comments, on the third day of his terror trial, came as he was pressed to give details on the anti-Muslim militant group he claims to belong to but which prosecutors say doesn't exist as he describes. Several unrelated groups claim part of that "Knights Templar" name.

The 33-year-old Norwegian acknowledged that his supposed crusader network is "not an organization in a conventional sense" but insisted that it is for real.

"It is not in my interest to shed light on details that could lead to arrests," he said refusing to comment on the group's alleged other members.

The issue is of key importance in determining Breivik's sanity, and whether he's sent to prison or compulsory psychiatric care for the bomb-and-shooting massacre that shocked Norway.

If found sane, Breivik could face a maximum 21-year prison sentence or an alternate custody arrangement that would keep him locked up as long as he is considered a menace to society. If declared insane he would be committed to psychiatric care for as long as he's considered ill.
"I view 21 years in prison as a pathetic sentence," Breivik said.

Breivik doesn't consider the courts to be legal; he has previously ridiculed the jurisdiction of the court to hear the case, but his claims focus mostly on the fact that he was fighting the first chapter of a larger conflict to preserve the white heritage of Norway and Europe against the rising tide of Muslims and outsiders.

Part of the problem in determining his sanity and his political claims is that he's refusing to give any information that might reveal the identities of the Knights Templar and other like-minded individuals with whom he's had contact and might confirm his claims that he's part of a wider right-wing white nationalist group intent on fighting against multiculturalism and igniting a race war in the process. Thus far, police have been unable to corroborate his claims of other cells in Europe or Norway.

It's also interesting that he considers al Qaeda to be methodological role models, even though Breivik claims that his goals are isolationist in nature.

Model Legislation

Some of New Jersey's recent legislation enacted by Gov. Christie tracks model legislation written up by the conservative group ALEC. The response to the article was that the NJ legislators and Christie's office denied any use of the model language, but I find that farfetched. It's far more than coincidental that the language tracks so closely.

The New Jersey example is hardly alone though. I wouldn't be surprised if quite a bit of legislation nationally is the result of lobbyist groups and other groups pushing model legislation.

Many of the lobby groups, like the NRA, produce model language for inclusion in state laws - both as part of their policy prescriptions, and to make it easier to get them enacted consistently nationally.

We've seen that stand your ground (SYG) has the NRA backing it.

Various entities have pushed model language on everything from streamlined sales tax (the SSTP), the Multistate Tax Commission and its model language for taxability issues, Uniform Commercial Code and Uniform entity laws (partnerships, etc.), or even uniform abandoned property laws.

Some of these model law efforts make sense - particularly when the idea is to make a difficult issue uniform - take tax collection across multiple jurisdictions.

However, some of model language smacks of laziness - a state had not considered treatment of a given subject to be important enough or had different treatment until a model language is proffered. It takes the legislative agenda out of the hands of those who are supposed to be writing the laws.

It's Time For Florida Move To Amend The Stand Your Ground Statute

Are Florida legislators taking the hint about the mess with Stand Your Ground that were exposed by the Tayvon Martin death at the hands of George Zimmerman and moving to act to modify/amend/repeal it?

Thus far, the Senate has not considered any changes - the 2005 items were the enacting/amending legislation imposing SYG.

No action in the House either.

The Florida Statute that needs to be addressed is Fla. Stat. Sec. 776.012.

If you're a Florida resident and want to see this law changed, this is where you've got to put pressure on legislators to change the SYG law to give civilians no greater rights to use firearms than law enforcement (as it stands, a civilian could shoot someone in cold blood and claim self defense and not even be charged unless there's probable cause - and even then, prosecutors are showing themselves unwilling or incapable of doing so, but a police officer in the same situation would likely find themselves assigned to desk duty, brought up on charges of police misconduct, and face potential civil damages cases too).

It's one thing to stand your ground on your own property or in your own home. It's quite another for someone to do so on a public street or byway or park. And it has the potential to put more than those involved in the incident at risk. At a minimum, the law should be amended such that a person is not entitled to SYG if they initiate the contact or thereafter chase after the person.

The fact is that law enforcement was opposed to this legislation at the outset and the legislature enacted it over their objections. We're now seeing the results of that disastrous choice, and it is past time for Florida to rectify the situation. It may not bring back Tayvon Martin, but it could spare others who are killed under similar circumstances.

The Unintended Consequences Of Personhood Legislation

The GOP is pursuing personhood legislation in states around the country as a way to make abortions illegal. Since the pro-life movement hasn't been able to overturn Roe v. Wade, they're using this as an alternative attack on the legal right to abortion in the country. Colorado has twice tried to bring a personhood amendment, and Missouri has also failed to approve a personhood bill.

It's a move that is destined to have unintended consequences that its proponents are wary to even discuss. Virginia is the latest to attempt to legislate away the right of abortion by redefining the term person. The GOP is pushing a personhood bill there, and yet the word "person" appears in the Virginia statutes 25,000 times. Any chance that something important might be affected by changing the definition?

Absolutely.

Unfortunately, not only would this bill lay the foundation to ban abortion and contraception, it could also wreak havoc on other areas of the law. The word “person” appears over 25,000 times in the laws of Virginia. No one knows the exact consequences of changing such an ordinary word, but the proponents of H.B. 1 refused to discuss or address these concerns in committee or on the floor of the House. Granting fertilized eggs all of the rights, privileges, and immunities the people of the Commonwealth currently hold could impact inheritance laws, election laws, tax laws, and even criminal laws. The bill has the potential to allow individuals to claim embryos in petri dishes as dependents, to challenge population numbers and election districts based on where IVF clinics are located. We fear this bill could even allow a non-family member to bring charges against a woman who has had a miscarriage.

The more legislatures attempt to push these kinds of laws, the greater the chances that the unintended consequences will be more severe.

Granting personhood to an embryo could potentially result in questioning census results, tax levies, inheritance law, and domestic relations laws, employer benefits laws, etc.

The GOP is opening a Pandora's box of trouble with this - and it's all with an eye towards eliminating the legal right to abortion. It's a roundabout attempt to make abortions illegal - and by making a claim that is unsupported by the science at that.

ABA Ratings Shrink President Obama's List of Judicial Nominees

The American Bar Association has severely curtailed President Obama's ability to nominate individuals to the bench (federal courts across the country) because it has deemed a significant number unqualified to sit on the bench).

The American Bar Association has secretly declared a significant number of President Obama’s potential judicial nominees “not qualified,” slowing White House efforts to fill vacant judgeships — and nearly all of the prospects given poor ratings were women or members of a minority group, according to interviews.

The White House has chosen not to nominate any person the bar association deemed unqualified, so their identities and negative ratings have not been made public. But the association’s judicial vetting committee has opposed 14 of the roughly 185 potential nominees the administration asked it to evaluate, according to a person familiar with the matter.

The number of Obama prospects deemed “not qualified” already exceeds the total number opposed by the group during the eight-year administrations of Presidents Bill Clinton and George W. Bush; the rejection rate is more than three and a half times as high as it was under either of the previous two presidencies, documents and interviews show.

How did the ABA get in a position to effectively veto the president's decision that is Constitutionally mandated under Article 2, Sec. 2? The Constitution requires:

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

By ceding a portion of the decision to a wholly unelected body - the ABA, the President has abandoned a key power - the right to nominate justices to the Court.

President Bush had stopped sending the ABA the prospective names, so the ABA rated the nominees after their nomination. President Obama reversed the Bush decision, which resumed a process that began during the Eisenhower Administration.

Now, one can argue that the ABA would know who is or isn't qualified to be on the bench through evaluating an individual's record. However, the decision should be the President's alone to nominate the justice. It is wrong to give the ABA a voice at that stage of the process. If the Senate wants to use other criteria, including ABA ratings, in refusing to ratify a particular candidate that is fine.

It's interesting to note that under past Administrations, the ABA was accused of having a liberal bias by GOPers and conservatives, but this latest revelation would run counter to that.

Of those nominees who have made it through the process, they have been more likely to be women or minorities - the Obama Administration has succeeded on this front in diversifying the bench more than any of his predecessors. That's a positive accomplishment.

Health Care Reform Law To Go Before US Supreme Court Next Year

The US Supreme Court will take up portions of the health care reform act (Affordable Care Act of 2009) in oral arguments scheduled for March 2012. Its timing will also impact the 2012 elections, as the health care reform is one of President Barack Obama's signature accomplishments. Briefs for both sides, including amicus briefs, are posted on the Supreme Court site.

The oral arguments will focus on the limits of federal power and what the federal government can or cannot prescribe.

On Tuesday, on the other hand, a three-judge panel of the District of Columbia Circuit upheld the law. Judge Silberman, who had grilled Ms. Brinkmann so aggressively, wrote the majority opinion, and his discussion of the limits of Congressional power may have handed the administration a bigger victory than it wanted, because it presumably did not want to win on the grounds that Congress could do anything at all.

Judge Silberman said he remained troubled by what he called “the government’s failure to advance any clear doctrinal principles limiting Congressional mandates that any American purchase any product or service in interstate commerce.”

Then he adopted a version of Mr. Dellinger’s argument.

“That a direct requirement for most Americans to purchase any product or services seems an intrusive exercise of legislative power,” Judge Silberman wrote, “surely explains why Congress has not used this authority before — but that seems to us a political judgment rather than a recognition of constitutional limitations.”

Judge Silberman said there were Supreme Court decisions on issues like regulating the use of medical marijuana that had endorsed broad Congressional power to legislate in the name of commerce.

“It certainly is an encroachment on individual liberty,” he wrote of the health care law, “but it is no more so than a command that restaurants or hotels are obliged to serve all customers regardless of race, that gravely ill individuals cannot use a substance their doctors described as the only effective palliative for excruciating pain, or that a farmer cannot grow enough wheat to support his own family.”

In dissent, Judge Kavanaugh praised the majority for its honesty in describing what followed from its ruling.

“The majority opinion here is quite candid — and accurate,” he wrote, adding: “The majority opinion’s holding means, for example, that a law replacing Social Security with a system of mandatory private retirement accounts would be constitutional. So would a law mandating that parents purchase private college savings accounts.”

My own beef with the mandatory insurance requirement is that the penalty provision is essentially a tax, and the enforcement provisions are carried out through the tax code. The penalties are imposed for people who refuse to sign up for health insurance plans if they are capable of doing so (have income above a certain level).

As written, the mandate requires almost everyone to get insurance or face a fine - $95 in 2014, $325 in 2015 and $695 in 2016 (with a maximum of $2,250 for a family). There is an exemption for low-income people.

This portion could be struck down but the lost revenue generated from the mandate would affect other provisions, including the preexisting conditions clause.

The individual mandate takes effect 2014. The preexisting condition requirement went into effect for children under 19 who are to be on their parents insurance. Adults will have the preexisting condition requirement starting in 2014. You would expect to see a fiscal effect based on the changes already enacted from which one can objectively judge the financial scoring on the health care package.

The health care reform doesn't hit at the core problem with health care delivery in the country - cost. The requirement to force people into obtaining health insurance doesn't reduce the cost of health care to these people. It increases those costs - significantly. The notion that having a greater pool of people paying into health care insurance will lead to overall lower premiums may work, but the costs for health care aren't being contained by any stretch. That will only come through changes not included in the health care reform package.

There's a difference between access to health care and affordability - and the health care reform package obfuscated the two.

So, the Supreme Court will take this matter and issue an opinion within months of the 2012 election, which makes the decision as much a political document as it is a legal one.

The 11th Circuit Rules That HCR Individual Mandate Provisions Are Unconstitutional

The 11th Circuit Court of Appeals handed down a decision that will ultimately be decided by the US Supreme Court. It ruled that the individual mandate portion of the health care reform package is unconstitutional.

The divided three-judge panel of the 11th Circuit Court of Appeals struck down the so-called individual mandate, which is considered the centerpiece of the law, siding with 26 states that had sued to block the law. But the panel didn't go as far as a lower court that had invalidated the entire overhaul as unconstitutional.

Government attorneys can — and likely will — ask the full 11th Circuit to review the panel's ruling. They also can appeal to the U.S. Supreme Court, which many legal observers expect to have the final say on the issue.

White House adviser Stephanie Cutter said the administration strongly disagreed with the ruling and was confident it would not stand.

"Individuals who choose to go without health insurance are making an economic decision that affects all of us — when people without insurance obtain health care they cannot pay for, those with insurance and taxpayers are often left to pick up the tab," Cutter said.

The states and other critics argued the law violates people's rights, while the Justice Department countered that the legislative branch was exercising a "quintessential" power.

The decision, penned by Chief Judge Joel Dubina and Circuit Judge Frank Hull, found that "the individual mandate contained in the Act exceeds Congress's enumerated commerce power."

So, what exactly is the importance of the individual mandate provisions? Well, it acts as a tax/penalty to get people to buy insurance who might otherwise opt out because they're in good health.

This is a not insignificant sum of money we're talking about. This provision is expected to raise several billion dollars every year it is in operation beginning in 2014, and is part of the revenue side of reforming the health care funding across the country. It is also seen as a critical tool to getting people into the health care insurance pools so that they can help spread the costs of health care for those who are more likely to utilize the insurance policies.

These are set forth at 26 USC 5000A (the Internal Revenue Code). It imposes an annual penalty of $95, or up to 1% of income, whichever is greater, on individuals who do not secure insurance in 2014, which rises to to $695, or 2.5% of income, by 2016 and after (and adjusted for inflation). Families are hit with higher penalties. There are exemptions to the "fine" in cases of financial hardship or religious beliefs.

The Circuit Court website has been unavailable for most of the day, as people try to access the decision. When I'm able to obtain a copy of the decision, I'll post it here with additional comments.

The Rebuilding of Ground Zero, Part 143

Construction continues throughout Ground Zero, including the 9/11 Memorial and Museum complex. In the past week, various components of the museum were installed in the underground museum, including a damaged fire truck, and a cross of steel recovered from Ground Zero that was later displayed at a nearby church.

The installation of the cross has resulted in a lawsuit by American Atheists, a nonprofit group based in New Jersey, claiming that the cross was impermissible under state and federal Constitutional law:

But the move quickly provoked a lawsuit from American Atheists, a nonprofit group based in New Jersey. It argued that because the cross is a religious symbol of Christianity and the museum is partly government financed and is on government property, the cross’s inclusion in the museum violates the United States Constitution and state civil rights law. The lawsuit, in turn, provoked the ire of the American Center for Law and Justice, a conservative public interest law firm, as well as others.

Now, the dispute over the “World Trade Center cross” is becoming the latest in a string of heated conflicts over how to memorialize the Sept. 11 attacks. It comes less than two months before the 10th anniversary of 9/11, and in the wake of a feverish debate over the construction of an Islamic cultural center and mosque within blocks of the trade center site.

Marc D. Stern, who is the associate general counsel of the American Jewish Committee and has long studied church-state issues, said the lawsuit presented “an extra-difficult case.”

“It’s a significant part of the story of the reaction to the attack, and that is a secular piece of history,” he said. “It’s also very clear from the repeated blessing of the cross, and the way believers speak about the cross, that it has intense present religious meaning to many people. And both of those narratives about this cross are correct.”

Ira C. Lupu, a professor at the George Washington University Law School and an authority on faith and the law, described the lawsuit as “plausible.” The outcome, he said, could depend on how the beam was displayed when the museum opened.

Context is everything here. The steel was a rallying point and a measure of comfort for those who saw it in the wake of the attacks and it has a religious significance. How those concepts are expressed and how the artifact is displayed will determine the outcome.

Of course, this suit is the last thing that the cash strapped Museum needs right now. It needs funds to ensure that the site opens on schedule and that the museum can operate going forward, both as an educational center and for preserving artifacts in its collection. Considering that the Athiest organization says that they're looking for equal representation, I see room for a negotiated deal before the museum opens to the public.

Meanwhile, news reports indicate that both President Obama and former President Bush will attend ceremonies at Ground Zero to commemorate the 10th anniversary of the attacks.

Mayor Bloomberg said Friday on his radio show that Obama and Bush would be given pre-selected readings, and that none of the dignitaries would be making speeches.

"This cannot be political," he said.

When Bush was president, he visited the site on anniversaries, but did not participate in the morning ceremony where the names are solemnly read aloud. Obama has also visited at other times, but never for the name-reading ceremony.

Also for the first time, the names of all the people killed at the World Trade Center, the Pentagon and the field in Shanksville, Pa., will be read aloud. In previous years, just the names of the trade center victims were read.

The ceremony will also include several current and former governors, along with Bloomberg and former Mayor Rudy Giuliani.

UPDATE:
Westfield has signed a long term deal with the Port Authority to handle the retail site development.

The Port Authority has a tentative deal with mall operator Westfield Properties to bring retail and restaurants to the World Trade Center site, the Journal and Post report. Westfield—an Australia-based company that also operates the concessions at JFK—would pay $612.5 million of the expected $1.55 billion retail construction costs in exchange for a 50 percent stake in the project. (The Port Authority would foot the rest of the bill.)

Yesterday, the Port Authority authorized more contracts for construction in and around Ground Zero, including at the Vehicle Security Center that is located on the site of the former Deutsche Bank building:

• Authorized the award of a construction trade contract to Zwicker Electrical Co. Inc., for electrical, telecommunications, security and fire alarm systems for the World Trade Center Vehicle Security Center.
• Authorized the award of a construction trade contract with Rael Automatic Sprinkler Co., Inc., for a fire protection system for the World Trade Center Vehicle Security Center.
• Authorized the award of a construction trade contract with WDF Inc., for a heating and air conditioning system for the World Trade Center Vehicle Security Center.
• Authorized the award of a construction trade contract with Pace Plumbing Corp., for plumbing for the World Trade Center Vehicle Security Center.
• Authorized the award of a construction trade contract with Skyline Steel Corporation for miscellaneous iron for the World Trade Center Vehicle Security Center.
• Authorized the award of a contract to Berardi Stone Setting Inc., for the pre-purchase, storage and handling of granite pavers and curbs for the World Trade Center Streets Program.
• Authorized the award of a construction trade contract to Delta Sheet Metal Corp. for a ventilation system for the World Trade Center Retail and Parking Pre-Tenant Fit-Out.
• Authorized the award of a construction trade contract to WDF Inc., for a plumbing system for the World Trade Center Retail and Parking Pre-Tenant Fit Out.
• Authorized the award of a construction trade contract to WDF Inc., for a heating and air conditioning system for the World Trade Center Retail and Parking Pre-Tenant Fit Out.
• Authorized the award of a construction trade contract to Rael Automatic Sprinkler Company Inc., for a fire protection system for the World Trade Center Retail and Parking Pre-Tenant Fit Out.
• Authorized an increase of $45.2 million to certain existing World Trade Center contracts to perform design and construction work to support adjacent stakeholder work, permanent power relocation requirements and tenant modifications.

UPDATE:
In a bit of bad news for Larry Silverstein and the Port Authority, UBS has decided against relocating from Connecticut to Ground Zero due to its ongoing reduction in workforce and uncertain business situation. This means that Silverstein will have to look for another major tenant to help fill the buildings he's hoping to construct at Ground Zero.