Thursday, November 30, 2006
This could mark a major change in the circuit court that many observers regard as the most conservative. Right now, the Fourth Circuit is divided as follows:
Conservative: Chief Judge William W. Wilkins, Judge H. Emory Widener, Jr., Judge J. Harvie Wilkinson III, Judge Paul V. Niemeyer, Judge Karen J. Williams, Judge Dennis W. Shedd.
Moderate: Judge William B. Traxler, Jr. (leans right), Judge Allyson K. Duncan (leans left)
Liberal: Judge M. Blane Michael, Judge Diana Gribbon Motz, Judge Robert B. King, Judge Roger L. Gregory.
Labels are difficult, depending on the issue. For example, with "tough on crime" issues, one could easily put Judges King and Traxler (both former prosecutors) with the conservative judges. And Nixon appointee Judge Emory Widener is known to march to the beat of his own drummer, especially in the last few years. But, the above is about the best we can do as a general matter.
With Wilkins stepping down, the core conservatives on the Fourth Circuit are left with 4 solid votes.
Beginning July 1, 2007, there will be five vacancies on the Fourth Circuit. Depending on how those seats are filled, the Fourth Circuit could be very different in the years to come.
CNN has this news story.
And Wikipedia has a very good summary of the legal issues here.
The case will likely turn on standing and will likely be the most important case of the term.
Wednesday, November 29, 2006
The Supreme Court reversed. The Court held that both the plea transcript and respondent's testimony at the PCR hearing clearly indicated that counsel did consult with respondent and advised him that he should enter a guilty plea. Counsel advised respondent to plead guilty based, at least in part, on the likelihood of what counsel believed the sentence would be. Counsel's advice that respondent would have gotten a life sentence was not technically incorrect because life is the maximum sentence for first degree burglary.
The Court further found that because any trial would essentially be respondent's word against his ex-girl friend's, there could be no claim that counsel should have further investigated the case to discover other evidence or witnesses. Counsel testified that he was prepared for the trial.
Tuesday, November 28, 2006
In the bad faith action, the jury awarded James $146,600 actual damages and $1,000,000 punitive damages. The South Carolina Supreme Court affirmed. The Court approved both the Gamble review and the Gore review of punitive damages. Key to affirming the award was the reprehensibility of the insurance company's conduct. The Adjuster repeatedly falsely represented the applicable law from the time he was assigned the claim, through Geiger's action. There was also evidence in the record that the Insurance Company denied the claim based on this false misrepresentation and that Geiger sued James based on this misrepresentation.
Monday, November 27, 2006
On Dec. 1, 2006, two amendments to the Federal Rules of Appellate Procedure will officially take effect.
The first amendment adds Federal Rule of Appellate Procedure 32.1, which will require all federal appellate courts to allow citation to their own unpublished and non-precedential opinions issued on or after Jan. 1, 2007. The second amendment, which affects Federal Rule of Appellate Procedure 25(a)(2)(D), will authorize federal appellate courts to require electronic filing.
There's also a generational difference. These aspiring lawyers want to have a life, too. "They're really looking for a balance -- they're not interested in the churn-and-burn," Gotch says. Summers want to know about alternative work arrangements, such as part-time work and telecommuting, and the firm's family-friendliness, including child care facilities and paternity leaves. "Work-life balance is not some faddish buzzword, but a pending crisis that will, eventually, affect your firm's prosperity and longevity," warned a clerk at Cadwalader, Wickersham & Taft.
Wednesday, November 22, 2006
Judge Williams dissented. Although she agreed that the decision was not supported by substantial evidence, she would have held that "it is for the agency, and the agency alone, to properly examine all the evidence in order to make the initial determination of whether the irrebuttable presumption should be triggered in favor of Perry. "
Tuesday, November 21, 2006
Monday, November 20, 2006
Tuesday, November 14, 2006
South Carolina Supreme Court holds that one assumes the risk of being hit by a puck when attending hockey games
Monday, November 13, 2006
Thursday, November 09, 2006
The only issue was whether ruling was not entitled to preclusive effect under the doctrine of collateral estoppel because of a change in the law in Island Creek Coal Co. v. Compton, 211 F.3d 203 (4th Cir. 2000) and thus the issue of whether Mr. Collins had pneumoconiosis was not identical to the one previously litigated. In Compton, the Fourth Circuit invalidated the BRB's practice of allowing ALJs to find the existence of pneumoconiosis by looking exclusively at evidence within one of 20 C.F.R. 718.202(a)'s four subsections, while ignoring contrary evidence belonging to one of the other three subsections. The Fourth Circuit held that the preponderance of the evidence standard was used in 1988 and is still the standard today in establishing entitlement to Black Lung benefits. Thus, the Court's ruling in Compton did not prevent the use on non-mutual offensive collateral estoppel. The widow was entitled to benefits.
Wednesday, November 08, 2006
Tuesday, November 07, 2006
Appellant's teacher testified to the family court that for a period of over two hours, Appellant behaved in a way that was wilfully disruptive and unnecessary. Appellant paced about the classroom and refused to remain in his desk; cursed to his teacher and other students; and harassed one student with comments about the student's mother. For over two hours, Appellant's teacher patiently attempted to reason with him regarding his classroom behavior, to no avail. Left with no other choice but to remove Appellant from the classroom so that she and the other students could focus on their educational objectives, the teacher asked another staff member to escort Appellant from the room. Appellant, however, did not stop there. Appellant began yelling and cursing, swung a punch at his teacher as he left the classroom, and continued his tirade as he was escorted down the hall.
Just another day in the public schools. The Supreme Court rejected the overbreadth argument because, in the Court's view, First Amendment rights of expression are not impermissibly curtailed--only disruption of the public schools. As for the vagueness challenge, the Court held that the child did not have standing because his conduct fell within the narrowest part of the statute.
Monday, November 06, 2006
Friday, November 03, 2006
Thursday, November 02, 2006
A federal appeals court has blocked a landmark judgment against the tobacco industry, allowing the companies to continue selling "light" and "low tar" cigarettes until their appeals can be reviewed.
The decision by the U.S. Court of Appeals for the D.C. Circuit also allows the companies to continue for now the advertising campaigns that a federal judge in August ruled were misleading.
Wednesday, November 01, 2006
Insurance Journal has this article.