Monday, April 30, 2007
Thursday, April 26, 2007
Wednesday, April 25, 2007
I'll post more as events unfold.
Although the Court recognized that Chassereau certainly knew that she would be required to make payments on the pool she purchased and that Global-Sun employees would contact her and request that she make payments on the pool if she ceased doing so, the Court held that "a reasonable person would not have foreseen and would not have expected (and ought not to expect) Global-Sun employees to commit acts historically associated with the common law tort of outrage in seeking to collect an overdue debt." Hence, the arbitration clause was unenforceable.
This is yet another opinion restricting arbitration. Taking the allegations of any complaint as true, under the Court's reasoning, does anyone ever really expect a contract to be breached or any tort to be committed? No. If you did expect a breach or tort, you would not enter into the business relationship. The Court's reasoning could easily be extended far beyond "outrage" to defeat arbitration in all cases.
Tuesday, April 24, 2007
The South Carolina Supreme Court held that arbitration was not the proper venue of the case and announced the following rule: "this Court will refuse to interpret any arbitration agreement as applying to outrageous torts that are unforeseeable to a reasonable consumer in the context of normal business dealings."
The Court reasoned as follows:
In this case, we find the theft of Aiken’s personal information by World Finance employees to be outrageous conduct that Aiken could not possibly have foreseen when he agreed to do business with World Finance. Consequently, in signing the agreement to arbitrate, Aiken could not possibly have been agreeing to provide an alternative forum for settling claims arising from this wholly unexpected tortious conduct. Accordingly, we hold that Aiken’s claims for unanticipated and unforeseeable tortious conduct by World Finance’s employees are not within the scope of the arbitration agreement with World Finance.
S.C. Supreme Court affirms that Crawford does not apply to statements made to non-governmental officers
Clearly, the statement related to the startling event of the victim being severely injured in her vaginal area. The victim was complaining of pain and was bleeding when the statements were made, and thus, the victim made the declaration while under the stress of her attack.
Monday, April 23, 2007
A jury has found a man accused of raping two teen girls in an underground bunker not guilty of kidnapping, sex crimes and assault with intent to kill. Kenneth Hinson beat the rap. I'd like to hear more details of the testimony and why the jury disbelieved the two girls who claimed kidnapping and rape.
Although the matters raised were issues of public concern, the Court granted the defendants qualified immunity: "Because the facts of this case are close enough to the ill defined line between private speech and speech involving matters of public concern, we cannot hold the defendants responsible for their reasonable but incorrect guess about how the law would apply to the facts of this case. "
Friday, April 20, 2007
Of course, one could also be cynical and suggest that oral argument be retained for the benefit of partners in large firms. Without oral argument, which they always insist on doing themselves, the appellate process would be purely associate driven (since we all know that associates are the ones who craft the the arguments, do the research, and draft the briefs). Heaven forbid that such an important role be put in the hands of young lawyers!
Anyway, the debate on this issue between Crimlaw Blog and Have Opinion Will Travel is worth a read.
Ken over at Crimlaw Blog makes this case for doing away with oral argument:
My primary argument for this is that appellate court decisions are supposed to be dispassionate, considered, legal decisions. An oral argument is necessary in an actual trial because the time is not available to write out legal briefs for every issue that comes forward during a trial. However, appellate courts and parties do not face this dilemma; they have months to research and brief pertinent legal arguments. Basically, an informed, intelligent, and full argument is better made on paper instead of in front of a panel of judges.
Have Opinion counters and asserts that oral argument still has meaning:
First, a historical perspective. Although I don't agree with Ken's characterization of them as "relics" of times gone by, oral arguments are indeed rooted in the Anglo-American legal tradition of an adversary proceeding, which in turn evolved from the medieval concept of trial-by-combat. The very nature of this model would seem to imply that at some point the "champion" doing battle on behalf of his client will actually have an opportunity to set foot in the "arena." I concede that there are those who might prefer the European inquisitorial model of resolving disputes but I had a long career as an advocate and I guess I have a soft spot in my heart for a system that has stood a 750 year test of time.
Second, a well crafted oral argument sometimes makes all the difference in the outcome of the appeal. Even when they are well written, briefs often raise questions in the minds of the judges that can be answered at oral argument and when
the briefs are poorly written, the issue(s) may not be clear to the court until clarified at oral argument. In my experience, oral argument changes my vote in conference about 10% of the time and while I know that doesn't sound like great odds, another way to put it is that one appeal in ten turns entirely on dialog I am able to have with the lawyers in the case. Moreover, I suspect that any client would expect his or her advocate to take every possible shot at convincing the court. Contrary to Ken's assertion that "they convey prestige." The briefs and oral argument make the complete package that is designed to maximize the persuasion opportunity for professional advocates.
Thursday, April 19, 2007
And with more than half of the large firms in the nation operating under some type of mandatory retirement system, the exodus will be profound.
About 1 million lawyers are licensed in the United States, according to the American Bar Association. Extrapolating from the current total of attorneys, a full quarter of attorneys -- or 250,000 -- are expected to start retiring by 2011.
Wednesday, April 18, 2007
The U.S. Supreme Court upheld a law that makes it a crime to perform ``partial birth'' abortions, allowing the first nationwide ban on a procedure as two justices named by President George W. Bush tipped the balance.
The justices, voting 5-4, said the 2003 Partial Birth Abortion Ban Act is constitutional even though it lacks an exception for cases posing a risk to the mother's health. The court also rejected claims that the law is so vaguely worded it would force doctors to forgo a commonly used, constitutionally protected abortion technique for fear of prosecution.
``The government may use its voice and its regulatory authority to show its profound respect for the life within the woman,'' Justice Anthony Kennedy wrote for the majority.
I'll post more on this after having a chance to review the opinion.
Fourth Circuit holds that state offense to qualify as MCDV must have a domestic relationship element
Judge Williams dissented. She would have held that the the Government may prove the existence of a domestic relationship through evidence other than the state court’s charging papers and record of the guilty plea. She also noted that nine other circuits that had considered this issue held that the predicate offense need not specifically contain the relationship element.
Tuesday, April 17, 2007
Collins brought a UTPA claim and arguing that the reflexive payout scheme of the Defibaugh machines caused Collins to suffer lost profits. Over $100,000 in damages was awarded to Collins. The Court of Appeals reversed:
While Collins may have demonstrated some lost profits arising from the Defibaughs’ placement of their machines at the same locations as where Collins’ machines were placed, Collins did not show that the utilization of reflexive payout on those machines was the cause of any lost revenue. Collins’ director of operations, Jefferson Gibbons, testified that the primary reason the Defibaughs’ machines hurt Collins’ business was because the Defibaughs’ machines were easy to play. Gibbons also testified that the Defibaughs’ machines were faster and involved no thinking or skill. The UTPA only creates causes of action in those suffering a loss as a result of a deceptive act. See S.C. Code Ann. § 39-5-140(a) (emphasis added). While “morphing” may have affected the players of the games, that feature is not what caused Collins’ machines to earn less money than before the Defibaughs’ machines were placed at the same locations.
Monday, April 16, 2007
There's not much of a change in the approach that large firms are making to partnership admissions, but there is a continuing trend toward the expansion of nonequity partnership classes as opposed to equity partnership," said Richard Gary, chairman of Thelen Reid & Priest from 1992 to 2003 and now principal of Gary Advisors, a law firm consultancy in Tiburon, Calif.
. . .
And as firms move greater numbers of attorneys into nonequity status to keep profits per partner high, they may be more tight-lipped about the strategy.
The Times & Democrat has this story about the trial.
Thursday, April 12, 2007
The Fourth Circuit concluded that in rejecting a sentence of imprisonment, the district court failed to place sufficient weight on "the need for the sentence imposed . . . to reflect the seriousness of the offense . . . and to provide just punishment for the offense," under 18 U.S.C.A. § 3553(a)(2)(A). The panel also chastised the district court for rejecting the Sentencing Commission’s judgment that an offense involving crack cocaine is a serious offense that must be punished by a meaningful sentence of imprisonment. The sentence was vacated and remanded for resentencing.
Wednesday, April 11, 2007
Making new law, the Court of Appeals held "that our supreme court would require a reconstructed record on appeal to allow for 'meaningful appellate review.' A new trial is therefore appropriate if the appellant establishes that 'the incomplete nature of the transcript prevents the appellate court from conducting a meaningful appellate review."
The panel did find that meaningful appellate review was impossible. Most of the reconstructed record was but a summary of witness testimony and there were myriad disputes about the content of the testimony.
Tuesday, April 10, 2007
Now that Dubya's good friend Alberto Gonzales is coming under fire, these concerns are fading away. Next week Gonzales's is scheduled to appear before the Senate Judiciary Committee, which is widely viewed as a crucial test for the embattled attorney general. Senator Graham is assisting the White House in the preparation of Gonzales for the hearings. Dubya will owe Graham one for this help. Hence, Judge Floyd will be promoted to the Fourth Circuit. That's where I'd put my money.
Slater fails to meet the first requirement for the self-defense charge: specifically, Slater was not without fault in bringing on the difficulty. “Any act of the accused in violation of law and reasonably calculated to produce the occasion amounts to bringing on the difficulty and bars the right to assert self-defense.” Bryant, 336 S.C. at 345, 520 S.E.2d at 322. In the instant case, the record clearly reflects that Slater approached an altercation that was already underway with a loaded weapon by his side. Such activity could be reasonably calculated to bring the difficulty that arose in this case.
I find this a little hard to agree with. I think the Court of Appeals got it right. Just because he investigated a fight when carrying a loaded weapon should not deprive him of self-defense if he immediately tried to remove himself from the situation and did not fire the first shots.
SC Sup. Ct. holds public policy is not offended by an automobile policy provision which limits the portability of basic “at-home” UIM coverage
UIM coverage is entirely voluntary, and permits insureds, at their option, to
purchase insurance coverage for situations where they are injured by an at-fault
driver who does not carry sufficient liability insurance to cover the insureds’
damages. Essentially, the insured is buying insurance coverage for situations,
as where he is a passenger in another’s vehicle or is a pedestrian, where he
cannot otherwise insure himself. When, however, the insured is driving his own
vehicle, he has the ability to decide whether to purchase voluntary UIM
coverage. Burgess chose not to do so when insuring his motorcycle.
. . .
Upholding this limit on portability encourages persons to purchase UIM
insurance on all their vehicles. To hold, as did the Court of Appeals, that
basic UIM is portable even in this situation permits an individual who owns
multiple vehicles to purchase UIM insurance on only one vehicle, yet have basic
UIM coverage on all. We find this result undesirable.
However, in Natiowide v. Erwood, the Court reached a different result on UM coverage: "We find that the mandatory nature of this coverage distinguishes it from the voluntary UIM coverage at issue in Burgess, and that pubic policy requires that basic UM coverage be afforded to Erwood even when she is a passenger on her spouse’s uninsured motorcycle." Chief Justice Toal and Justice Burnett dissented. Justice Toal would have held that uninsured motorist coverage is not “portable” for a party who is injured while operating or while a passenger of a vehicle of which the party would be an insured had he or she purchased insurance coverage.
Hence, the difference in the two case is the mandatory nature of UM and the voluntary nature of UIM.
Monday, April 09, 2007
Friday, April 06, 2007
Wednesday, April 04, 2007
The Justices agreed with the environmental groups, holding that requiring the use of an hourly emissions rate would essentially invalidate EPA rules dating back to 1980.
Tuesday, April 03, 2007
I will try to post further thoughts on this case later.
Monday, April 02, 2007
Yep, its like making sausage. Makes me want to be a legal vegan.
Law.com has the full story here.
MSNBC has this story.