BP Begins Jostling For Legal Position As Oil Continues To Leak

Unless you have been living under a rock, then you have heard of what has now been determined to be the worst oil spill in American History. As the oil continues to flow out of the breached underwater oil main, the lawsuits and related disputes also continue to mount. BP, the entity deemed responsible for the massive leak, has been hit with over 100 lawsuits and they have recently requested that the courts place every pre-trial issue in the hands of U.S. District Judge Lynn Hughes in Houston.  Hughes is versed in oil affairs and has traveled the world giving lectures for the American Association of Petroleum and has close ties with many oil companies.  In fact, Hughes has collected royalties from several energy companies from his investments in mineral rights. 

At first blush, one would speculate as to whether BP is seeking to gain an edge by requesting that Hughes oversee the proceeding or are they simply seeking a judge who is well-versed in the company’s issues.  In court filings, BP said Hughes should handle the cases because he is already hearing one class-action case filed by a group of Vietnamese-American fishermen after the spill, and has presided over complex, multi-jurisdictional cases in the past.  Although a request for a single judge is not unprecedented, it is unusual because in both state and federal courts, cases are typically assigned to judges randomly.  No one has suggested that Hughes would rule a certain way before hearing the evidence.  In fact, records show the Hughes has ruled both for and against the industry.  However, I am sure that BP probably studied Hughes’ past rulings and his caseload and probably inferred that he would at the very least understand their point of view or maybe even potentially sympathize with their arguments.

A special panel of judges will decide in July if the BP suits should be consolidated in a single court — and if Hughes should handle the cases.  Although I would never impugn the integrity of Hughes, I would question the tactics and actions of BP.  At a time when you have an unprecedented ecological catastrophe, loss of lives and irreparable devastation, many people would perceive that it is fundamentally wrong that the entity purportedly responsible for the damage would begin jostling for legal position.  This is especially true as the leak continues to spill oil and outrage against BP and devastation of the gulf’s ecosystems and economy worsen.

Supreme Court Rejects the NFL’s Request to be Considered One Entity

Did the Supreme Court err in judgment by preventing the NFL from collectively marketing team trademarks? Although the NFL is not happy with the decision, the High Court’s determination is vital in order to promote competition in the merchandising market and it is consistent with the policies followed by a majority of professional sports leagues (with the exception of Major League Baseball) that require each team within their respective organizations to independently market their own trademarks.

In the case captioned American Needle v. NFL (Case No. 08-661), the Supreme Court unanimously concluded that every NFL team is treated separately (and not collectively) when selling branded items like jerseys and caps. The rationale behind this conclusion seeks to promote competition and to eliminate artificial barriers to entry into the merchandising/ team apparel market. The decision came out of the fact that the NFL was collectively marketing all league trademarks, despite the fact that the each team was independently owned. This conduct allowed the NFL to control the merchandising market by simply granting team licensing rights to one vendor and effectively stone-walling other vendors’ entry. For instance, currently all NFL uniforms are branded and sold by Reebok. The Supreme Court concluded that such conduct was a direct antitrust violation as it stifled competition. After this decision, it will be possible for one team’s uniforms to be branded and sold by Nike and another to be branded and sold by Under Armor.

I agree with the Court’s decision in this case. It is a known fact that NFL teams not only compete with each other on the field but off it as well for potential new fans to the exclusion of the other teams in the NFL. Likewise, competition is also apparent in the world of merchandise sales. To a firm that makes tee shirts, each NFL franchise is a competing supplier of valuable trademarks. Therefore, each team is a separate entity whose business and trademark licensing interest might not always coincide. Allowing these separate entities to act independently when it comes to licensing their trademarks, promotes competition as a greater volume of vendors are allowed to enter the market. Competition is essential in any market but it especially resonates in the world of sports. If the NFL was granted the broad authority to act collectively and grant trademark licensing rights to one vendor, then consumers would be directly harmed as it could potentially lead to increase in prices, less variety and lower access. Competition is a key part of consumer protection and I commend the Supreme Court for advocating on behalf of the consumer at large in rejecting the NFL’s request to gain a greater stronghold on the licensing/apparel market.

Black Farmers Still Seeking Justice For Over A Decade

Tens of thousands of black farmers, who were denied access to government farm loans because of their race, are demanding that the 11-year-old settlement funds promised to them finally be released. 

Pigford v. Glickman, the 1997 case against the U.S. Department of Agriculture, was settled out of court and provided for compensation to black farmers who were denied farm loans and support from federal programs because of the color of their skin.  Under the terms of the agreement, qualified farmers could receive $50,000 each to settle their claims of racial bias.   Although the decision was rendered in 1999, tens of thousands of farmers missed the filing deadline to submit their claims; therefore, they were denied access to any compensation.  However, in order to rectify the situation, then senator Barack Obama sponsored a measure in the 2008 Farm Bill that reopened the case and subsequently the Obama Administration brokered a $1.25 billion settlement.  However, Congress missed a March 31 deadline to fund it. Another deadline, May 31, is quickly approaching and many farmers are concerned that inactivity on the part of Congress might lead to another missed deadline which is especially concerning considering a number of the farmers are older and some have even passed away over the 10-plus years they have been waiting. 

If Congress misses the May 31 deadline it is likely that some farmers may withdraw from the class-action and pursue independent litigation against the government.  However, litigation is very expensive and some farmers do not have the funds to pay attorneys’ fees.  Those individuals would be forced to continue to wait or give up their claims altogether.  Accordingly, it is very important that Congress act immediately to ensure that the deadline is met.  However, judging from Congresses previous dilatory conduct, they might need a little nudging to finish the job.  It is imperative that the President encourage Congress to diligently move forward with this issue and to make good on his promise to ensure that black farmers finally get justice.

Public Outrage Over the Police Shooting Death of 7-Year-Old Aiyana Jones

Unspeakable tragedy erupted Tuesday night, when 7-year-old Aiyana Jones was killed by an officer’s bullet during a raid in Detroit.  The family is now suing the police department in both state and federal court alleging gross negligence, a violation of civil rights and a conspiracy to cover up the violation of civil rights. 

Any act of this magnitude, especially when allegedly perpetrated by the police is unacceptable.  However, what is equally if not more unacceptable is the suspected cover-up that allegedly occurred in this matter.  Preliminary disclosures by the Detroit police indicated that officers approached the house with a search warrant for the girl’s uncle and while executing the warrant, one of the officer’s gun discharged accidentally inside the home after a purported physical altercation with the girl’s grandmother, Mertilla Jones.  However, witnesses as well as Mertilla Jones claim no such altercation occurred and further maintain that the shot was fired from outside of the home and not from inside as the police stated. In addition, the lawyer for the family, Geoffrey Fieger, claims that he has seen videotape of the incident and the video also indicates that the shot was fired from outside the home.  A camera crew was filming the raid for the A&E network’s show, “The First 48.”  At this time, the Detroit police department is contending that the shooting was purely accidental.    

Although the police are employed with the task of enforcing our laws and are often times placed in great peril, they must be accountable for their actions and incidents such as this are truly unacceptable.  While I greatly appreciate their service and am eternally indebted for their sacrifice, I believe the loss of a life cannot simply be chalked up to human error.  Especially when the victim is a child, the defense of accident or mistake is much harder to swallow.  It is premature to presume that the officers were doing something unethical or illegal.  However, I am hopeful that the Detroit police will be diligent in reviewing their procedures to find better ways to protect children and citizens, when they are confronted with dangerous situations, and also assess punishments accordingly for any wrongdoing in this matter.  It is of vital importance that steps are taken to ensure incidents like this never occur again. 

The funeral service for Aiyana Jones will be this Saturday, May 22, 2010

Kagan’s Potential Impact on the African-American Community

Is Solicitor General Elena Kagan’s record on diversity likely to affect her position on affirmative action and other diversity issues that affect the African-American community?  I contend that it is way too early to speculate but it definitely is an issue that will resonate with African-Americans.  Although she has been noted for being a consensus builder, her record for diverse hires while serving as the Dean at Harvard Law School is concerning.  During her six-year tenure as Dean, Kagan had an abysmal record on recruiting and hiring minority professors.  Her records indicate that there were 29-new hires (23 white men, five white women and one Asian American woman).  However, not one black or Latino professor was employed.  

Considering her predecessor, Justice John Paul Stevens, is a supporter of affirmative action (he voted to uphold the affirmative action program at the University of Michigan Law School challenged in 2003’s Grutter v. Bollinger), Kagan’s lack of diverse hires and the uncertainty that provides is concerning.  However, it must be noted that many factors are examined when making hiring decisions, especially at an educational institution of the caliber of Harvard Law School.  Therefore, it would be premature to suggest that diversity and diversity initiatives are not of importance to Kagan.  Mention must also be made to the fact that Kagan clerked for Supreme Court Justice and civil rights patriarch Thurgood Marshall.  As many of us know, Marshall served as chief counsel for the NAACP for many years (he argued the landmark Brown v. Board of Education case) and fought for inclusion and integration.  I would be hard pressed to believe that Kagan, who maintains that Marshall was her hero and who she credits with providing her with a greater understanding of the law, would not be supportive of diversity initiatives and policies. 

Although it is common for speculation to run wild during this period leading up to confirmation, I would caution people to not draw conclusions from her bleak record on diversity while serving as Dean and assume that is reflective of her position with respect to diversity policies.

Kagan Nominated to the High Court

The ink is not even dry and the debate over the President’s recent nomination of Solicitor General Elena Kagan to the High Court has erupted.  Those opposed to the latest nominee claim that she does not have enough experience because she has never served as a judge, while her supporters maintain that she is a consensus builder and has the ability to bring parties together.   

On a prior blog, I stated my position on Kagan and predicted that the President would select her as his nominee based upon her background and principled stance.  Ideologically she will be close to her predecessor, Justice John Paul Stevens (perhaps not as liberal) and will also share Steven’s notable ability to bring diverse groups together.  Kagan could also be a transformational figure, similar to Justices Sandra Day O’Conner or William Brennan and might even be able to influence long-term conservative Justice Anthony Kennedy.  However, I am skeptical that she will bring Justice Kennedy over, considering his ideology is rooted in his 20-plus years of service to the Court.  But I do believe she will have an immediate and long-lasting impact on the Court.  At age 50, Kagan has the potential of being on the Court for many years and establishing a substantive legacy.  Indeed, she is smart and skilled and has blazed trails before.  She was the former Dean of Harvard Law School and later served in the role of Solicitor General (the United States’ top advocate appearing before the Supreme Court), where she argued six cases before the High Court.  

It is unusual that Kagan has not had judicial experience; it has been over 50-years since a Justice with no judicial experience was appointed to the Court.  And although Kagan is a certified democrat, many liberals have questioned her reliability as she has a small paper-trail from which an ideological determination can be made.  However, a small paper-trail can also be a good thing as it leaves little for opponents to criticize and pick apart.  Kagan’s records from her White House years in the Clinton administration should offer important insights into her legal thinking.  Therefore, it would not make sense to schedule her confirmation hearing until those records become available. 

 Many have suggested that she is a safe choice and will go through the confirmation relatively easily.  However, confirmation is never easy, especially considering one academic paper Kagan wrote in the 1990s, in which she criticized the confirmation process, could be used against her.  In addition, Kagan’s exclusion of military recruiters from the Harvard law school campus during her tenure as Dean also promises to draw considerable attention during the confirmation hearing. Certainly, Kagan will have to answer for these issues and leap many other potential hurdles if she is to be confirmed to the High Court.  Nevertheless, Kagan is well poised to succeed.  She has a command of the law, an innate ability to build majorities and an empathetic disposition that will suit her well as she is tasked to serve as a supreme arbiter of justice.

L.T. Back in the Negative Spotlight

After years on the straight and narrow, Lawrence Taylor, or just L.T. to most, is back in the news, this time it is not drugs but allegations involving rape and prostitution. The peculiar facts surrounding this incident have raised many questions and catapulted Taylor back in the negative spotlight.  The Hall of Fame linebacker was charged Thursday with rape and patronizing a prostitute in a case involving a 16-year-old runaway. The 51-year-old was arrested in a Holiday Inn in Ramapo, NY and was taken into custody along with the young girl and her purported pimp.  Taylor was charged with third-degree rape, a felony, for allegedly engaging in sexual intercourse with a minor and with third-degree patronization for allegedly paying the underage victim $300 to have sex.  Under New York law, the rape charge carries a possible four-year prison term, and the patronization charge, a misdemeanor, could bring up to a year in prison.  However, as the investigation continues more claims may possibly emerge and Taylor could realistically face jail time, especially if it is found that he engaged in a sexual act with a minor.  As would be expected, Taylor’s attorney is defiantly rejecting the allegations as false and has made public statements maintaining his client’s innocence.

Run-ins with the law are nothing new for Taylor. He was suspended twice by the NFL during his playing days for substance abuse and has been arrested several times on drug related offenses.  However, recently, Taylor has worked hard to change the public’s perception of him, with stints as a sports commentator and an appearance as a contestant on ABC’s “Dancing With the Stars” in 2009, Taylor was beginning to reshape his public persona.  However, these new allegations have again cast doubt on his character.  Although the law is based upon a presumption of innocence, the fact that he was in a random hotel room, in the middle of no-where, with a 16-year old prostitute and her pimp does not bode well for Taylor’s defense.  Even though he might ultimately be acquitted of these charges, that process is slow and at this time, he might already be found guilty in the world of public opinion.  I would encourage Taylor to make a public statement as soon as possible.  Perhaps it might not necessarily affect the outcome of his case but it should calm all the intense speculation and maybe curve the public’s response.  Take a look at Kobe Bryant, although people did not forgive the egregious act (he was accused of rape in 2004), I believe they appreciated the fact that he spoke up and provided an apology and explanation.

NBA is Speaking Out Against the Arizona Immigration Law

The unpopular Arizona immigration law is now receiving staunch opposition from all walks of life, including the National Basketball Association.  The law has been widely criticized as an intrusive invasion of civil liberties and equal rights, as it allows for police to question individuals upon reasonable suspicion that they might be in the United States illegally.  There has been outrage on a global level and many have labeled the state bill as unconstitutionally authorizing discrimination.  Now the NBA, its teams and players have entered the debate on the side of the opposition and have began to voice their concerns and grievances.   

In fact, the Phoenix Suns will be wearing its “Los Suns” jerseys for tonight’s Game 2 against the San Antonio Spurs to honor the Latino community in Arizona and to also voice their opposition to what Sun’s team owner Robert Sarver labeled “a flawed state law.”  The Spurs also submitted a proposal to wear their “Los Spurs” jerseys; however, it was too late to do so.   The NBA Players Association is supportive of these public displays of opposition.  In fact, the organization’s executive director Billy Hunter issued a press release, denouncing the law, stating “The National Basketball Players Association strongly supports the repeal or immediate modification of this legislation. Any attempt to encourage, tolerate or legalize racial profiling is offensive and incompatible with basic notions of fairness and equal protection.”

The civil rights movement was rooted in the mantra that an injustice committed against one is an injustice against all.  A similar mantra is being employed to oppose this recent law as many argue that it is an attempt to intrude on the civil liberties of a certain class of people.  Such an intrusion is not only improper but as many in the Latino community have maintained, it is also unconstitutional. Generally, sports figures do not make political statements on this scale or voice their oppositions to such provocative issues; therefore, I applaud the actions of the NBA and the Phoenix Suns’ players and management for taking a stand against an unjust and unconstitutional law.

The Retirement of Justice Stevens–More than Ideology

I was in my second year at Georgetown University Law Center when I first met Justice John Paul Stevens.  I was initially taken back by the surreal nature of the moment as it is not everyday you come across one of the top legal minds in the world, nevertheless the senior member over the highest court in the Land.  Although our first conversation was very brief, Justice Stevens did mutter these words as parting advice “keep working towards something great.”  Such a phrase has stuck out in my mind for years and is a phrase that embodies the 35-years of progressive thinking Stevens brought to the Court.  While I have had the pleasure to be in the Justice’s presence on several occasions since that memorable encounter, I am drawn back to that first meeting upon the recent announcement that Justice Stevens intends to depart from the Court within the year. 

 Justice Stevens has been a patriarch on the Court for many years and his ideology and positions have changed over that time.  From his stances on First Amendment protections and the death penalty, to affirmative action,  states’ rights concerns, abortion and gay marriage, Steven’s opinions, as well as those of the Courts, have evolved.  The recent news of his departure has caused a fire storm of debate about his successor.  Several names have been tossed into the hat including Elena Kagan, Merrick Garland and Diane Wood.  In deciding on his nominee, the President must take into account several factors, including the long-term impact on the Court and political ideology.  However, he must also consider the need to appoint someone, who like Stevens, will serve as an evolving member on the Court, one who will challenge conventional wisdom and provide the necessary momentum to deal with a new age of legal theory.

It is questionable whether the President, in the current political climate, could replace Stevens with a nominee who shares such strong positions.  However what the Court is losing the most is Steven’s skills at building majorities.  While all of the individuals who have been named as possible successors are top-notch legal minds, I think Elena Kagan stands out as a progressive leader, one whose record embodies collectivism and inclusiveness.  A New York native, Kagan was selected by President Obama to serve as the nation’s first female Solicitor General.  Prior to that appointment, Kagan served as Dean at Harvard Law School, where she came to be known as a consensus builder.  While she might not be as liberal-leaning as Stevens, or other possible nominees like Diane Woods, Kagan possesses a progressive approach to issues and can reach across a great political spectrum. 

—In this new legal world, where technological advances and other transformational changes have presented new and complex legal issues, we must enlist progressive thinkers who will confront the status quo and engage these new challenges with a prospective vision for our future.

Recent Release of Malcolm X’s Assassin

Thomas Hagan, at age 69, the only man who admitted his role in the 1965 assassination of iconic black leader Malcolm X, was paroled Tuesday following an incarceration term of 45-years. He was released from the Lincoln Correctional Facility in Harlem, NY located at the intersection of West 110th Street and Malcolm X Boulevard, thus putting in perspective the true significance of the moment. 

Malcolm X, the civil rights icon, best known for his fiery rhetoric and his public denouncement of whites (but who later in life changed his views towards whites and discarded the Nation of Islam’s ideology in favor of orthodox Islam) was a champion of civil rights and one of the most notable persons of that era.

There has been outrage among some African-Americans upon the release of Hagan, as many have questioned whether or not he would have been released if he had killed an iconic white leader.  Although such a question can never truly be answered and there are valid legal arguments on both sides of the coin regarding the appropriateness of his release, I think the fact that 45 years after playing a role in the assassination of Malcolm X, Hagan was released upon the street bearing his victim’s name, speaks volumes.  Malcolm X’s impact on the world community is well noted in history books, movies, adaptive plays (to name and few) and his legacy is evidenced when looking at the hundreds, if not thousands, of street signs and schools that bear his name or when talking with elders who speak of a man whose passion, belief and vigor transformed a people. Therefore, although the central focus of this entry was to provide an update on Hagan’s recent release, I think such an occurrence is overshadowed by the worldly impact of the man.  At this time when our country elected the first African-American president and when our Congress followed through on passing the most aggressive healthcare legislation in the history of our nation, we are better served by paying homage to Malcolm X and the other warriors of change who served as catalyst for this transformation.  Let us embrace his memory and his sacrifice and not allow debate over the recent developments take our attention away from what truly matters.     

 Malcolm X would have turned 85 years old on May 18.