Friday, March 30, 2007


My article with the above title, which soon will be appearing in the Duke Journal of Constitutional Law and Public Policy, is available on line at this link. Here is a taste from the article's conclusion:

Today, Marbury is cited for the proposition that the Supreme Court is the final arbiter of the Constitution. This interpretation divorces Marbury from its historical roots and grossly overstates the holding of that case. Whereas popular sovereignty provides clear support for the doctrine of judicial review, it provides no support for judicial supremacy. Popular sovereignty explicitly rejected the proposition that a mere branch of government had the final word on fundamental law. Unlike judicial review, judicial supremacy is not an outgrowth of popular sovereignty. Instead, it is a regression to an older theory of sovereignty that existed prior to the American Revolution.

Friday Leagal News of the Weird: Sex change does not end alimony obligation

Tired of paying $1,250 per month to his ex-wife, Lawrence Roach filed a motion to terminate alimony after learning that the ex was no longer a she. Attorneys Roach argued his 55-year-old ex-wife's decision to switch genders and change her name from Julia to Julio Roberto Silverwolf voided their 2004 divorce agreement.

"It's illegal for a man to marry a man and it should likewise be illegal for a man to pay alimony to a man," said John McGuire, one of Roach's attorneys.

A Florida Circuit Judge disagreed, ruling that in the eyes of the law, nothing changed significantly enough to free Roach from his $1,250-a-month obligation. The judge said since Florida courts have ruled sex-change surgery cannot legally change a person's birth gender, Roach technically is not paying alimony to a man.

Thursday, March 29, 2007

SCOTUS limits incentives for qui tam relators to bring suit

In Rockwell v. United States, SCOTUS zapped the incentive of qui tam relators to disclose fraud against the federal government under the Federal False Claims Act. The court, in a 6-2 decision, held that retired engineer James S. Stone cannot share in a $4.2 million award he and the U.S. government had won in a suit against Rockwell International. Stone accused the company of making false statements about environmental, health and safety activities at its Rocky Flats nuclear weapons facility outside Denver. Stone filed his complaint under seal and later the government later joined his suit

The main issue in the case was whether Stone was an "original source," which is defined as “an individual who [1] has direct and independent knowledge of the information on which the allegations are based and [2] has voluntarily provided the information to the Government before filing an action under this section which is based on the information.” The court held that Stone was not an original source because he did not have knowledge of the actual facts supporting the theory ultimately proven at trial. The majority said Stone didn't meet the original source requirement because the focus of the case shifted during the litigation and the jury's findings against the company weren't based on information he provided. (Stone alleged that environmental damage would be caused by the deterioration of a storage system due to poor engineering when in fact it was a poorly designed mixture used to preserve the waste).

Justices John Paul Stevens and Ruth Bader Ginsburg dissented. According to the dissenting justices, the original source inquiry "focuses on the facts in the public domain at the time the action is commenced. If the process of discovery leads to amended theories of recovery, amendments to the original complaint would not affect jurisdiction that was proper at the time of the original filing."

Wednesday, March 28, 2007

Fourth Circuit Buzz

Well, there is still no nominee to take Chief Judge Wilkins' seat when he takes senior status in May. Word on the street is that the White House and Senator Graham are not in agreement on the nominee. Right now, here are the primary names I have heard:

1. District Judge Henry Floyd. Judge Floyd is Senator Graham's first choice. The problem is that Dubya views his legacy as the War on Terror, and in 2005 Judge Floyd ruled against the administration in the Padilla case. This rebuke to the Bush administration likely did not sit well with Dubya:

Certainly [the Bush administration] does not intend to argue here that, just because the President states that Padilla's detention is "consistent with the laws of the United States, including the Authorization for Use of Military Force" that makes it so. Not only is such a statement in direct contravention to the well settled separation of powers doctrine, it is simply not the law. Moreover, such a statement is deeply troubling. If such a position were ever adopted by the courts, it would totally eviscerate the limits placed on Presidential authority to protect the citizenry's individual liberties."

I still agree with Judge Floyd on this one, but my vote and input aren't worth much in battle for a Court of Appeals slot. Of course, the Administration also has concerns because Judge Floyd served in the state legislature as a Democrat. I have heard that Judge Floyd is out of contention, then back into contention. I certainly would not rule him out.

2. Reggie Lloyd. Lloyd is the US attorney for the district of South Carolina and former state court judge. He is also a friend of Senator Graham. Word on the street was that Graham's original plan was Floyd to the Fourth Circuit and then Lloyd to the District bench to replace Floyd. Because of issues with the Administration on Judge Floyd, Lloyd is a serious candidate. The problem is that although he is a fine gentleman, no one really knows much about his leanings left or right or his intellect. He is an unknown quantity--and the Bushes have not faired too well with unknowns as Justices or Judges. Dubya might not want to take this risk.

3. District Judge Terry Wooten. Judge Wooten is a name that has recently appeared on the radar screen. In the late 1980s, Judge Wooten served as minority chief counsel on the Senate Judiciary Committee and had connections with Senator Strom Thurmond. I don't know much about him, but do know that he is in contention.

4. Of course, don't count out Greenville attorney Bill Coates or Charleston attorney Steve Matthews. Both would make fine judges and are known for their intelligence and legal reasoning.

Tuesday, March 27, 2007

Rule 403 Modified

For years now, the Rule 403 requirement for admission to the bar has been a pain for SC lawyers. One could sit in the court house for days watching cases settle and getting none of the required trial experience. Well, the Supreme Court has taken action to reduce the number of trials new lawyers have to watch and to permit those who have trial experience from out-of-state to count these toward the Rule 403 requirements.

The new rule can be found here.

S.C. Supreme Court holds that contract between car dealer and consumers must be reviewed with "considerable skepticism"

In Simpson v. MSA of Myrtle Beach, the Court considered two issues: (1) the proper forum to determine whether an arbitration clause is unconscionable, and (2) whether the clause was unconscionable. At base this was a dispute between a car dealer and a consumer. On the back page of the purchase contract was an arbitration clause. The consumer alleged in was unconscionable and unenforceable, and the dealer argued that such a decision was for the arbitrator and not a court. The Supreme Court disagreed with the dealer and held that an unconscionabilty argument goes to the existence of a contract and thus it was for the court to determine in the first instance whether a binding contract existed--that is, whether it was unconscionable.

Next, the Court turned to the clause itself. The Court held that contracts between a consumer and automobile retailer with must be reviewed with "considerable skepticism." Under this approach, the Court observed that vehicles are critical in modern society, the consumer did not possess the business judgment necessary to make her aware of the implications of the arbitration agreement, and that the consumer did not have a lawyer present to provide any assistance in the matter. The Court found it important that the clause was inconspicuous and buried on the back of the form: the arbitration clause in its entirety was written in the standard small print, and embedded in paragraph ten (10) of sixteen (16) total paragraphs included on the page. Another factor considered by the court was lack of mutuality. The arbitration clause provided that the dealer could bring judicial proceedings even if there were pending consumer claims in arbitration.

In sum, the Court found the clause unconscionable and thus unenforceable.

Monday, March 26, 2007

Legal news and notes

Check out Blawg Review 101, for the latest legal news from around the web.

$2 million med mal settlement in Rock Hill

A Rock Hill woman whose 73-year-old husband died after he received the wrong drug because of an alleged doctor's error will receive $1.775 million in settlement of a wrongful death lawsuit. Chad McGowan and his firm will pocket a cool $700,000. The news story on the settlement can be found here.

Friday, March 23, 2007

Morse v. Frederick and Qulified Immunity

A commenter to my earlier post on the Morse case makes a good point about the importance of qualified immunity to case's resolution. The second issue under consideration is:

Whether the Ninth Circuit departed from established principles of qualified immunity in holding that a public high school principal was liable in a damages lawsuit under 42 U.S.C. § 1983 when, pursuant to the school district’s policy against displaying messages promoting illegal substances, she disciplined a student for displaying a large banner with a slang marijuana reference at a
school-sponsored, faculty supervised event.

After finding a constitutional violation, the Ninth Circuit held that the principal had no qualified immunity, because any reasonable principal would have known that Morse's actions were unlawful. Although Morse argues that her actions did not violate Frederick's constitutional rights, even if she did violate Frederick’s rights, Morse asserts that it is unfair to deny an official qualified immunity when courts and officials reasonably disagree on whether a constitutional violation occurred. At base, a public official is entitled to qualified immunity “If officers of reasonable competence could disagree on the lawfulness of the conduct. . . ."

As I stated in the post below, I believe that Morse did violate Frederick's constitutional rights. But, is it possible that officers of reasonable competence would disagree on the lawfulness of Morse's conduct--maybe. This is a much more difficult issue. SCOTUS will likely find a constitutional violation but grant qualified immunity.

Thursday, March 22, 2007

Quick Thoughts on Morse v. Frederick

As most of you know, the Supreme Court heard arguments the other day in Morse v. Frederick--the "Bong hits 4 Jesus case." In January 2002, students were released from Juneau-Douglas High School to watch the Olympic torch pass by. Frederick, who had not attended school that day, joined some friends on the sidewalk across from the high school (off school grounds). Frederick and his friends waited for the television cameras so they could unfurl a banner reading "Bong Hits 4 Jesus." When they displayed the banner, then-principal Deborah Morse ran across the street and seized it. Morse initially suspended Joseph Frederick for five days for violating the school district's anti-drug policy, but increased the suspension to 10 days after he refused to give the names of his fellow participants. The Ninth Circuit held that the principal's action violated Frederick's rights under the First Amendment and SCOTUS granted cert.

The question presented is whether the First Amendment allows public schools to prohibit students from displaying messages promoting the use of illegal substances at school-sponsored, faculty supervised events. The briefs, including amicus briefs, can be found here.

This case is governed by the Tinker v. Des Moines School District standard. In Tinker, perhaps the best known of the Court's student speech cases, the Court found that the First Amendment protected the right of high school students to wear black armbands in a public high school, as a form of protest against the Viet Nam War. The Court ruled that this symbolic speech--"closely akin to pure speech"--could only be prohibited by school administrators if they could show that it would cause a substantial disruption of the school's educational mission.

I believe that Frederick will prevail. It's not like he stood up in class, unrolled the banner, and was disruptive. The event occurred off school property and on a public side walk. Surely, the kid had a constitutional right to do what he did--even if the message was dumb and he was simply looking to get his picture in the paper. My bet is that the Supreme Court will affirm the Ninth Circuit's decision. What Frederick did cannot be described as causing a substantial disruption to the school's educational mission.

Wednesday, March 21, 2007

S.C. Supreme Court holds that Catawba Indians may not offer video poker on the reservation

In Catawba Indian Tribe v. State, the S.C. Supreme Court held that as part of a 1993 Settlement Agreement, the Tribe agreed to comply with state law and waived its right to be governed by the Indian Gaming Regulatory Act. Hence, under the general law of South Carolina, video poker is a no-go on the reservation.

Tuesday, March 20, 2007

The Judge said what???

Here's one for all those arguing for simplicity in legal writing. This is from Jamison v. Ford Motor Company and was penned by Judge Ralph King Anderson of the South Carolina Court of Appeals:

The cognoscenti of federal preemption jurisprudence bestow panoramic application so as to limit state common law tort actions. We decline to accept this broad-brush federal judicial barricade.
. . .

Importantly, scholars on basic conflict preemption principles inculcate in regard to the fundamental elixir of the rule when juxtaposing federal/state constitutional analysis. If a state statute, administrative rule, or common law cause of action conflicts with a federal statute, it is incontestable that the state law has no efficacy. It is pellucid that the Supremacy Clause does not bless unelected federal judges with carte blanche to utilize federal law as a conduit to impose their own views of tort law on the States. Assumptively, we recognize that common law tort actions are historically within the scope of the States’ police powers and are safe from preemption by a federal statute unless Congress reveals a clear and manifest purpose to preempt.

. . .

Finally, we place our imprimatur and approbation upon the arbitraments of the circuit court in regard to. . . .

Man, I feel like Fred and Lamont Sanford after Officer Hopkins spouts off some police jargon and evidence of an Ivy League education. Here's a good example (from one of my favorite shows) that expresses my thoughts on the above.

[Officer Hopkins helps Grady inside]

Fred Sanford: What's the matter, Grady?

Officer 'Hoppy' Hopkins: It's really nothing much to be concerned about, Mr. Sanford. He's merely experiencing a mild gastrointestinal imbalance precipitated by acute anti-gravitational pull in the lower abdominal cavity.

[Fred Sanford stares blankly and waits for translation]

Grady Wilson: I gotta throw up!

Court of Appeals articulates prejudice standard in denials of motions to compel arbitration

In Rhodes v. Benson Chrysler, the Court of Appeals affirmed the trial court denial of Benson's motion to compel arbitration. Prior to ever raising the arbitration issue, Benson answered (and raised the arbitration issue), engaged in extensive discovery, noticed and took five depositions, and sought the circuit court's help in executing in executing out-of-state subpoenas. Once Benson finally moved to compel arbitration, Rhodes argued Benson waived its right by participating in significant discovery. The circuit court agreed and its reasoning was echoed by the court of appeals. Because Rhodes incurred substantial “costs resulting from discovery processes that likely could have been avoided in arbitration,” the resulting prejudice to Rhodes counseled against granting the motion to compel arbitration.

This case is pretty straightforward. It really baffles me how a party can engage in such a large amount of discovery and then move for arbitration--especially when the party asserted his right to arbitration in the original answer. Fundamental fairness, it seems to me, would also dictate that Benson pay Rhodes' costs and attorneys fees in this unnecessary appeal.

Monday, March 19, 2007

Legal Notes of Interest

Check out Blawg Review 100 for the happening around the web.

Fourth Circuit issues search and siezure opinion

In United States v. Seldon, mechanics at a car dealership called police when they discovered two secret compartments in a mini van. The mechanics gave the police information about the owner of the vehicle. Some time later, the same police officer who had talked with the mechanics pulled the mini van over because it was speeding. The officer noticed a strong smell of air freshener, that Seldon would not make eye contact, and that Seldon had a large wad of cash. Drugs were discovered in the compartments and Seldon was arrested.

Seldon moved to suppress all seized evidence that had resulted from the search, contending that the dealership search had been unconstitutional under the Fourth Amendment, and that the cop would have lacked probable cause for the second search had he not learned of Seldon’s hidden compartments in the course of his earlier unlawful search. The district court declined to suppress the evidence and the Fourth Circuit affirmed. Because the officer learned about the compartments from an independent source--the mechanics--he could lawfully rely on that knowledge in deciding to conduct the second search.

Thursday, March 15, 2007

Fourth Circuit places limits on district court's inherent powers in terrorism case

In United States v. Moussaoui, the Fourth Circuit considered a district court decision ordering the Government to provide to certain victims of the September 11 attacks (the Civil Plaintiffs) non-public discovery materials that the Government had provided to Moussaoui in the course of its criminal case against him. The Civil Plaintiffs action was not pending before this district court, but rather the Southern District of New York. The panel held that the District Court lacked the inherent authority to issue such an Order:

These cases, however, do not go so far as to suggest that courts have an inherent authority to issue orders that facilitate the judicial process taking place in another case in another jurisdiction. Moreover, it simply cannot be said that the district court’s orders were necessary for the district court’s "orderly and expeditious disposition" of the Government’s criminal prosecution against Moussaoui. Id. Even from the perspective of the civil suits in New York, the district court’s orders were not necessary because Rule 26 of the Federal Rules of Civil Procedure provides for liberal discovery.

Persons failing SC Bar no longer are allowed to review and seek re-grading of papers

The state Supreme Court has revised Rule 402 SCACR. Applicants were allowed to review and seek re-grading of their papers if they failed a section. The Court is now doing away with this re-grading:

In our opinion, the internal review process conducted by the Board is more than sufficient to insure that any error in grading is determined before the examination results are released. Therefore, we have decided to delete the current provisions allowing for review and re-grading after the results are released, bringing this jurisdiction in line with the overwhelming majority of other jurisdictions.

Wednesday, March 14, 2007

S.C. Court of Appeals holds that a defendant's threats against witnesses are admissible

In State v. Edwards, Edwards was convicted of criminal sexual conduct with a minor. During the trial, the victim’s mother testified that Edwards told her to tell the victim that she should not show up in court “because he had a hit out on her, that she wouldn’t make it through the courtroom doors.” The victim’s mother also testified that Edwards said if he was convicted he would kill the victim when he got out of jail. The trial judge allowed this testimony finding that Edwards’ statements could be construed as an admission of guilt and a threat to punish the witness should the jury find him guilty. Edwards appealed the admission of the threats.

The Court of Appeals affirmed. The Court found that such threats indicate the defendant’s “consciousness of guilt” and are therefore admissible pursuant to Rule 404(b) of the South Carolina Rules of Evidence. This is the first case in South Carolina dealing with the admissibility of threats.

S.C. Court of Appeals issues guidance on award of pre-judgment interest

In Vaughn Development v. Westvaco, Westvaco promised to install sewer mains in connection with the sale of the property to Vaughn Development but failed to perform the instillation. Vaughn Development hired Superior Utilities to install two sewer mains and manholes and four service crossings at a cost of $88,691. Vaughn Development requested reimbursement from Westvaco and Westvaco responded by stating it would pay only $18,746.12 for the sewer work, which represented the cost of one sewer main based on Superior Utilities’ cost detail. The jury awarded Vaughn Development $37,492.24, a sum equivalent to the cost of two sewer mains. The court awarded Vaughn Development prejudgment interest.

The Court if appeals reversed the award of prejudgment interest because the measure of recovery could not have been determined at the time the claim arose. According to the Court, prejudgment interest is allowed on a claim of liquidated damages; i.e., the sum is certain or capable of being reduced to certainty based on a mathematical calculation previously agreed to by the parties. Prejudgment interest is not allowed on an unliquidated claim in the absence of an agreement or statute. The fact that the amount due is disputed by the opposing party does not render the claim unliquidated for the purposes of an award of prejudgment interest.

Because we find the measure of recovery was not fixed at the time the claim arose, the trial court erred in awarding prejudgment interest.

Tuesday, March 13, 2007

Local lawyer threatens to shoot office staff

This is a sad story from WYFF:

A Greenville lawyer faces charges that he threatened to shoot people in his office last week.
Benjamin Ward McClain Jr. is charged with breach of peace of a high and aggravated nature.
Police said McClain called his downtown law firm on Friday afternoon and told an employee he was on his way to shoot everyone.

That employee called 911. Police said that when they arrived, they found McClain sitting in his car. Police said that there was a loaded gun in the glove box of the car.

Police said that when they arrived, two officials with the state Attorney General's office were at the firm's offices.

The Attorney General's office said that the officials were at the office to investigate misconduct at the law firm.

Let's all be thankful that no one was hurt.

S.C. Supreme Court extends immunity to court-appointed examiners in guardianship proceedings

In Vaughn v. McLeod Regional Medical Center, two doctors were appointed by the court in a conservatorship proceeding and determined that he was incapacitated. Suit was later brought against the physicians for making this finding. The Supreme Court affirmed the grant of summary judgment for the physicians. According to the Court:

We find the reasoning that supports a finding of absolute quasi-judicial immunity for court-appointed guardians also supports a finding of absolute quasi-judicial immunity for court-appointed examiners in guardianship proceedings. Court-appointed examiners are essentially an arm of the judiciary.

S.C. Supreme Court issues an opinion on the Statute of Frauds and contracts for the sale of land

Fici v. Koon, Buyer sought to enforce a contract to sell real estate based on a form contract and a plat. The form contract did not contain a description of the property to be conveyed except to specify that it was "at least thirty acres," and indicated that Buyer and Sellers were to agree on property lines. The 1960 plat was never intended to indicate the final boundaries but was to be the basis of the surveyor's plat. The Supreme Court noted that a conveyance of land is unenforceable if the contract provides only that the boundaries are to be determined upon agreement to a subsequent survey and plat. In the words of the Court, "the signed form contract dated February 27 is nothing more than an agreement to agree which is unenforceable under the Statute of Frauds. "

Monday, March 12, 2007

D.C. Circuit Court of Appeals holds that right to bear arms applies to individuals

Here's an interesting op-ed on the D.C. Circuit's recent decision striking down the District's ban on all handguns. The opinion can be found here.

New Inquiry of Catholic Diocese in Charleston, SC

From the AP:

A judge ordered an inquiry into whether there were unreported cases of sexual abuse involving the Roman Catholic Diocese of Charleston. The judge, Diane Schafer Goodstein of Circuit Court, said she would not approve a plan to set aside up to $12 million to settle abuse claims without the review. Judge Goodstein made her decision after a lawyer for abuse victims said the church might have kept cases secret. Peter Shahid, a lawyer for the diocese, said it would cooperate with any inquiry.

Friday, March 09, 2007

Judge John Few strikes down Greenville smoking ban

In Foothills Brewing Concern v. City of Greenville, Judge John few and struck the City's ban on smoking in all enclosed public places. A copy of the order can be found here.

The plaintiffs in this case were a group of bar and restaurant owners concerned that the ban would hurt or destroy their businesses. Judge Few held that the 1996 amendments to the state's Clean Indoor Air Act expressly preempt the smoking ordinance. The Act sets forth with some specificity the types of buildings and areas in which local governments can ban smoking (e.g., health care facilities, schools, etc.). Under S.C. Code Ann. 16-17-504(A), which states that "laws, ordinances, or rules may not supersede State law or regulation," Judge Few held that the General Assembly intended to prohibit local government from imposing any restrictions on indoor smoking beyond the restrictions contained in the Clean Indoor Air Act. The City will likely appeal the Order.

The entire opinion is worth a read. No matter what one believes about smoking, this is a well-reasoned decision from one of the state's premier trial judges.

Thursday, March 08, 2007

Possible ruling in Greenville smoking ban today

WYFF reports that Judge John Few has scheduled a 1 p.m. hearing about the recent Greenville ban on smoking in indoor places.

Fourth Circuit holds that district court must permit defendant to allocute before sentencing

In UNITED STATES v. MUHAMMAD, Muhammad argued that his sentence should be vacated because the district court did not permit him to allocute before he was resentenced. The Fourth Circuit agreed:

Because the "possibility remain[s]" that Muhammad could have received a lesser sentence had he been permitted to allocute at resentencing, he has sufficiently shown that he was prejudiced by the denial of allocution. Cole, 27 F.3d at 999. For the same reason, we exercise our discretion to notice the error. See id. We therefore vacate Muhammad’s sentence and remand for resentencing. At the resentencing hearing, the district court must permit Muhammad to allocute before imposing sentence.

Fourth Circuit holds that revocation of probation and supervised release are governed by the same standard

In, UNITED STATES v. MOULDEN, the Fourth Circuit held that revocation of probation and revocation of supervised release should be reviewed under the same test: to determine whether the sentence is "plainly unreasonable with regard to applicable 18 U.S.C. § 3553(a) factors."

Wednesday, March 07, 2007

First man sentenced to death for killing a fetus gets a new trial

In Ard v. Catoe, the first person in South Carolina to be sentenced to death for killing a fetus will get a new trial because his attorneys failed to challenge one of the state's expert witnesses. Joseph Ard was sentenced to death in the fatal shooting of his pregnant girlfriend, Madalyn Coffey, and the nearly full-term fetus in April 1993. Ard claimed that the shooting was an accident. He testified the gun went off when he tried to grab it from Coffey. Ard's trial counsel did not cross-examine a state law enforcement expert about gunshot residue on Coffey's hands and failed to investigate the expert's findings. According to the state Supreme Court, "trial counsel could have established that while there was a scientific finding of 'no gunshot residue,' there nevertheless was evidence consistent with (but not conclusive of) Coffey handling the gun. Had counsel elicited this testimony from Powell, the State would not have been able to attack the defense theory as convincingly as it did. "

S.C. Supreme Court holds that a trial judge has authority to suspend a sentence absent clear statutory language to the contrary

In State v. Thomas, Thomas pled guilty to distributing crack in proximity to a school. He was sentenced to a ten year prison term, the minimum provided by S.C. Code Ann. § 44-53-445(B)(2). Six days later, Thomas appeared before the court seeking reconsideration of his sentence. The judge refused on the grounds that he was powerless to suspend any portion of the minimum sentence. The Supreme Court disagreed and held that unless the General Assembly clearly indicates in the statute that the sentence may not be suspended, South Carolina trial judges have the authority to suspend a sentence. The case was reversed and remanded for resentencing.

Of note, the trial judge in this case was Reggie Lloyd, current United States Attorney for the District of South Carolina, and a candidate for the United States Court of Appeals for the Fourth Circuit.

Tuesday, March 06, 2007

HIPAA and the standard of care

Many of you know that in addition to appeals, I also practice in health law. In the past, some clients have fretted about the the possibility of a "HIPAA suit" because of an accidental disclosure of a person's protected health information. I have always been able to reassure that that HIPPA contains no private right of action. A private right of action is not created just because a federal statute has been violated. The right typically must be created by the statute. Of course, I have also warned that what could happen is that a plaintiff uses HIPAA to set the standard of care when bringing a common law cause of action such as invasion of privacy.

Well, a recent North Carolina appeals court case appears to do just that. In Acosta v. Byrum, the Court clearly says that HIPAA may be used as evidence of the standard of care in a negligence action against a health care provider. Let this case serve as a reminder to all health care providers that although there is no private cause of action under HIPAA, the federal statute is very relevant for establishing the standard of care in other causes of action.

Monday, March 05, 2007

Why do Supreme Court Justices often grow more liberal but not more conservative??

Thomas Sowell asks some interesting questions on this topic in the Washington Post and posits that:

Although Supreme Court justices have lifetime tenure, precisely to give them independence, nothing can give anyone the backbone and character to stand up to criticism or to resist the blandishments of flattery and lionizing.

All the pressures are to move to the left, in accordance with the views of the liberal media and the liberal professors who dominate the law schools.

USC Women's Studies Conferences concludes that women leaders still scarce in legal field

The State Newspaper has this story.

Donanld A. Harper, R.I.P.

From the Greenville News:

Donald A. Harper of Greenville, a former federal prosecutor and founder of a law firm, died Thursday at the Medical University of South Carolina in Charleston. He was 60.
In the early 1970s, Harper was an aide to U.S. Sen. Strom Thurmond of South Carolina.

Friday, March 02, 2007

Fourth Circuit holds that Alford plea does not lead to judicial estoppel in excessive force case

In Zinkland v. Brown, Timothy Zinkand brought a § 1983 action against police officers, including Officer Brown because they allegedly used excessive force when arresting Zinkand in a drug bust. The district court granted summary judgment in favor of all defendants, and Zinkand moved for reconsideration. The district court denied Zinkand's motion, and Zinkand appealed only the decision rendered in favor of Detective Timothy Brown on the claim of excessive force.

In its decision, the district court was of opinion that the additional evidence supplied by Zinkand (via his Rule 59(e) Motion) created a genuine issue of material fact that would ordinarily require a trial for resolution. However, the district court held that the legal effect of the Zinkand's Alford plea amounted to judicial estoppel and was dispositive. (With an Alford plea, the defendant does not admit the act and asserts innocence, but admits that sufficient evidence exists with which the prosecution could likely convince a judge or jury to find the defendant guilty.)

Under the law of judicial estopppel, the party against whom judicial estoppel is to be applied must have intentionally misled the court to gain unfair advantage. Based upon their own examination of the record, the dived panel found that it was Zinkand's intent to obtain the very favorable sentence of probation without an entry of judgment against him and to preserve the excessive force claim. Without bad faith, there can be no judicial estoppel. Hence, the decision of the district court was reversed and remanded.

Fourth Circuit leaves unresolved whether the feds can force domain name registrars to disclose customer infromation

IP attorney Tom Vanderbloemen, a friend of mine from Gallivan, White & Boyd, passes this along about Peterson v. National Telecommunications:

The U.S. Court of Appeals for the Fourth Circuit published an opinion yesterday that leaves open the question of whether the federal government can compel an internet domain name registrar to disclose to the public information about its customers. In Peterson v. National Telecommunications & Information Administration, the plaintiff sought an injunction to prevent his website registrar from disclosing to the public his name, telephone number, physical address, and e-mail address. The plaintiff operated his political website using the “.us” top-level domain or TLD, similar to other TLDs like".com", ".org", and ".edu". Most TLDs are operated by private entities, but ".us" is a country-specific TLD controlled by the government. The National Telecommunications & Information Administration or NTIA, which administers the “.us” TLD for the government, recently began allowing private entities to use the “.us” TLD, but required registrars to publish the identifying information. Despite this requirement, at least one “.us” registrar did not disclose information about its customers, but instead registered them “by proxy” with its own information. When NTIA found out, it ordered the public disclosure.The appeals court found that the plaintiff was not entitled to an injunction. The court explained that the “First Amendment protects anonymous speech in order to prevent the government from suppressing expression through compelled public identification,” but that the plaintiff was not injured by the disclosure because his website already contained information identifying him. As a result, the court did not have to address the more sensitive issue of “whether the disclosure requirement might, under other circumstances, cause injury to an individual’s right to speak anonymously.” Thus, although there are many website owners who prefer to remain anonymous, for those whose the “.us” TLD, it remains an open question whether the government can compel publication of their identifying information.

Thursday, March 01, 2007

Fourth Circuit holds that affair between witness and police officer did not violate due process

In UNITED STATES v. DYESS, the Fourth Circuit considered whether due process was violated because of alleged egregious conduct. The conduct alleged to be outrageous is this case was a police officer's romantic involvement with a witness (and wife of one of the defendant's) during the plea and sentencing phases of the defendants' proceedings and his subornation of perjury by the wife at the sentencing hearing. advantages.The Court employed the following test to determine whether due process had been violated:

(1) that the government consciously set out to use sex as a weapon in its investigatory arsenal, or acquiesced in such conduct for its own purposes upon learning that such a relationship existed; (2) that the government agent initiated a sexual relationship, or allowed it to continue to exist, to achieve governmental ends; and (3) that the sexual relationship took place during or close to the period covered by the indictment and was entwined with the events charged therein.

Upholding the decision of the district court, the panel noted that the officer's behavior was to reassure the witness that nothing bad would happen to her, and gifts to her and her daughter were aimed at endearing her to the officer and not at obtaining more information to aid in the defendants' prosecution. Hence, the officer did not use sex as a weapon nor was the relationship instituted to serve government ends. Finally, the relationship occurred after the period of events covered in the indictment.

Hence, the conviction and sentence were upheld.