lukegilman.com : The Blawgraphy
Life of a Law Student, University of Houston Law Center

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Please note: I'm no longer updating this particular blog, but keep it around for archival purposes. Visit me at the current blog at www.lukegilman.com

Looking for the Key to Unlock the Floodgates in Climate Change Litigation

Stephan Faris’ Conspiracy Theory in the new issue of the Atlantic posits climate change as this era’s Tobacco settlement, profiling the efforts of Steve Susman and Steve Berman.

As scientific evidence accumulates on the destructive impact of carbon-dioxide emissions, a handful of lawyers are beginning to bring suits against the major contributors to climate change. Their arguments, so far, have not been well received; the courts have been understandably reluctant to hold a specific group of defendants responsible for a problem for which everyone on Earth bears some responsibility. Lawsuits in California, Mississippi, and New York have been dismissed by judges who say a ruling would require them to balance the perils of greenhouse gases against the benefits of fossil fuels—something best handled by legislatures.

But Susman and Berman have been intrigued by the possibilities. Both have added various environmental and energy cases to their portfolios over the years, and Susman recently taught a class on climate-change litigation at the University of Houston Law Center. Over time, the two trial lawyers have become convinced that they have the playbook necessary to win big cases against the country’s largest emitters. It’s the same game plan that brought down Big Tobacco. And in Kivalina—where the link between global warming and material damage is strong—they believe they’ve found the perfect challenger.

If there’s a guy worth watching as a student for insight into the business of law, it’s Susman. After reading John Jenkins’ The Litigators, my passing interest is perhaps bordering on obsession. Although I’m skeptical of the merits and/or chances of climate change litigation, the fact that these guys are after it makes me more than a little intrigued, particularly about how exactly they plan to make such a case.

In February, Berman and Susman—along with two attorneys who have previously worked on behalf of the village and an environmental lawyer specializing in global warming—filed suit in federal court against 24 oil, coal, and electric companies, claiming that their emissions are partially responsible for the coastal destruction in Kivalina. More important, the suit also accuses eight of the firms (American Electric Power, BP America, Chevron, ConocoPhillips, Duke Energy, ExxonMobil, Peabody Energy, and Southern Company) of conspiring to cover up the threat of man-made climate change, in much the same way the tobacco industry tried to conceal the risks of smoking—by using a series of think tanks and other organizations to falsely sow public doubt in an emerging scientific consensus.

This second charge arguably eliminates the need for a judge to determine how much greenhouse-gas production—from refining fossil fuel and burning it to produce energy—is acceptable. “You’re not asking the court to evaluate the reasonableness of the conduct,” Berman says. “You’re asking a court to evaluate if somebody conspired to lie.” Monetary damages to Kivalina need not be sourced exclusively to the defendants’ emissions; they would derive from bad-faith efforts to prevent the enactment of public measures that might have slowed the warming.

Noted Harris County Prosecutor Kelly Siegler Blogs

Harris County Criminal Justice Blog notes that Kelly Siegler Takes a Shot at Bloggingwith There’s No Such Thing as “Closure” on the Women in Crime Ink Blog

Can you imagine the bottomless pain that a parent endures when they have learned that their child has been murdered? As many times as I have met with and counseled with parents suffering through that agony–and told them that we are there to do all that we can to make sure that the defendant is convicted and punished justly–I have also had that “other” conversation with them.

You see, in our world, the world of a prosecutor who handles such cases (as I have, far too many times), we also talk about the fact that as parents, they shouldn’t put their lives on hold waiting for a defendant to be charged or arrested . . . or waiting for a trial to commence . . . or waiting for an appeal to be exhausted or even waiting for an execution to happen. I tell them that too many other parents, who have walked in their steps and truly do know their pain, have told me the truth.

The truth. The truth is that there is no such thing as “closure.”

Sure, you hear it all of the time. You hear that closure is what we should be seeking on behalf of victims everywhere. You hear experts and psychologists and even law enforcement officials all over the country talking about closure as if it is some “state of mind” that we can help a mommy and a daddy, who have learned they will never see their baby again, obtain.

But when you ask those same victims if any of that–the arrest, the conviction, the sentencing, the execution–ever truly helped them gain “closure,” you know what they all say? They all say no. They all say there is no such thing. They all say they are glad that phase of the process of the criminal justice system is complete. They all say thank you, and then they go back to having to figure out how to get up again the next morning and live another day in a world that no longer has the same color and light and joy in it that it did “before.”

Great stuff. Hopefully she keeps it up.

Houston Law Review Article on Death Penalty Profiled in New York Times

The New York Times’ Adam Liptak highlights a forthcoming article from the Houston Law Review in today’s A New Look at Race When Death Is Sought. In Racial Disparities in the Capital of Capital Punishment, Scott Phillips of the University of Denver makes a surprising finding in analysis of death penalty statistics.

A new study to be published in The Houston Law Review this fall has found two sorts of racial disparities in the administration of the death penalty there, one commonplace and one surprising.

The unexceptional finding is that defendants who kill whites are more likely to be sentenced to death than those who kill blacks. More than 20 studies around the nation have come to similar conclusions.

But the new study also detected a more straightforward disparity. It found that the race of the defendant by itself plays a major role in explaining who is sentenced to death.

We were excited about this particular piece when it first came in, but obviously this kind of attention exceeds those expectations. Our incoming editing staff deserves the lion’s share of the credit. Congrats y’all.

Stephanie Cecere, editor-in-chief of the Houston Law Review, will enter her final year at the University of Houston Law Center this fall. She expects excitement about her publication to pick up about the same time. That’s when the journal will publish an article by Scott Phillips, a professor of sociology and criminology at the University of Denver. After studying Harris County death penalty statistics, he found that — all other factors, such as the type of crime committed, being equal — a black defendant is more likely to be sentenced to death than a white defendant in Harris County.

Tex Parte Blog: Running the numbers

Considering Harris County’s Public Defender System and Youth

Rather than re-post this in full, I’ll just point out my recent post Anticipating Effect of Public Defender System on Representation of Indigent Youth in Harris County on the Children and the Law Blog, part of my work for the Center for Children, Law & Policy. This follows up on my previous post Call for Harris County Public Defender’s Office.

Harris County currently uses a system of appointments by juvenile judges, a system called into question by another Houston Chronicle article – A select few get the cases, and the cash. The article reveals a system, which combined with the fact that judges in Texas are elected, requiring them to campaign and thus to raise campaign funds through donations, that can hardly hope to avoid the appearance of impropriety. The article claims that two of the county’s three juvenile judges “received more than 90 percent of their campaign contributions from the attorneys they appoint.”

The judges, for their part, seem open to a public defender system themselves -

For his part, [Judge] Shelton says he gets no joy from his appointment powers and plans to study public defender offices in other cities. All three judges deny any correlation between contributions and appointments.

“I would be happier if there was a public defender system,” Shelton said.

Southern District of Texas Judge Sam Kent takes a Leave, Speculation Follows

As reported in Legal Trade, Houston’s Clear Thinkers, the Houston Chronicle and AbovetheLaw, U.S. District Judge Sam Kent will be temporarily absent. No reason for the absence has been given, leading many to conclude that it can’t be good, speculating that it results from some sort of complaint against Judge Kent or perhaps an illness.

AbovetheLaw takes the opportunity to point out Kent’s noted propensity to take poetic license in his opinions, to the amusement of all but the lawyer or party being tied to the whipping post therein. My favorite from Smith v. Colonial Penn. Ins. Co., 943 F. Supp. 782 (S.D. Tex. 1996):

“The Court, being somewhat familiar with the Northeast, notes that perceptions about travel are different in that part of the country than they are in Texas. A litigant in that part of the country could cross several states in a few hours and might be shocked at having to travel fifty miles to try a case, but in this vast state of Texas, such a travel distance would not be viewed with any surprise or consternation. FN1 Defendant should be assured that it is not embarking on a three-week-long trip via covered wagons when it travels to Galveston. Rather, Defendant will be pleased to discover that the highway is paved and lighted all the way to Galveston, and thanks to the efforts of this Court’s predecessor, Judge Roy Bean, the trip should be free of rustlers, hooligans, or vicious varmints of unsavory kind. Moreover, the speed limit was recently increased to seventy miles per hour on most of the road leading to Galveston, so Defendant should be able to hurtle to justice at lightning speed. . . . Alas, this Court’s kingdom for a commercial airport! FN2 The Court is unpersuaded by this argument because it is not this Court’s concern how Plaintiff gets here, whether it be by plane, train, automobile, horseback, foot, or on the back of a huge Texas jackrabbit, as long as Plaintiff is here at the proper date and time.”

FN1. “The sun is ‘rize, the sun is set, and we is still in Texas yet!”

FN2. Defendant will again be pleased to know that regular limousine service is available from Hobby Airport, even to the steps of this humble courthouse, which has got lights, indoor plummin’, ‘lectric doors, and all sorts of new stuff, almost like them big courthouses back East.

AbovetheLaw also includes the venerable Bradshaw v. Unity Marine Corp., 147 F. Supp. 2d 668 (S.D. Tex. 2001) which is delightful for several other reasons, but continues to hold my fascination through the world’s single greatest use of a case parenthetical.

Plaintiff also neglects to provide any analysis whatsoever of why his claim versus Defendant Phillips is a maritime action. Instead, Plaintiff “cites” to a single case from the Fourth Circuit. Plaintiff’s citation, however, points to a nonexistent Volume “1886″ of the Federal Reporter Third Edition and neglects to provide a pinpoint citation for what, after being located, turned out to be a forty-page decision. Ultimately, to the Court’s dismay after reviewing the opinion, it stands simply for the bombshell proposition that torts committed on navigable waters (in this case an alleged defamation committed by the controversial G. Gordon Liddy aboard a cruise ship at sea) require the application of general maritime rather than state tort law. See Wells v. Liddy, 186 F.3d 505, 524 (4th Cir. 1999) (What the ..)?!

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