Thursday, May 31, 2007
In United States v. Andrews, 05-2630-cr, Judge Guido Calabresi wrote for the circuit that a "defendant's constitutional right to consult with his attorney on a variety of trial-related issues during a long break, such as an overnight recess, is inextricably intertwined with the ability to discuss his ongoing testimony. Thus, a ban on discussing testimony during a substantial recess does materially impede communication of a 'constitutional quality.'"
Wednesday, May 30, 2007
Let's just hope that Dubya and the two senators move on this soon. Both are excellent candidates for the position. Matthews is one of the brightest lights in the South Carolina Bar and Judge Kittredge was one of the state's top trial judges and has distinguished himself on the state Court of Appeals.
We're lucky to have a man like Kittredge on the bench and can only hope that Matthews, if not elevated to Judge Wilkins' seat, will soon ascend to the bench as well.
Yesterday the Court decided LEDBETTER v. GOODYEAR TIRE & RUBBER CO. This case involved a supervisor at a Goodyear Tire plant in Alabama, where a female supervisor brought suit because she was being paid less than her male colleagues despite having more seniority. In order to make her claim timely, Ledbetter argued that each paycheck that reflects the initial discrimination is itself a discriminatory act that resets the clock on the 180-day period, under a rule known as “paycheck accrual.” SCOTUS disagreed:
Ledbetter’s arguments here—that the paychecks that she received during the charging period and the 1998 raise denial each violated Title VII and triggered a new EEOC charging period—cannot be reconciled with Evans, Ricks,Lorance, and Morgan. Ledbetter, as noted, makes no claim that intentionally discriminatory conduct occurred during the charging period or that discriminatory decisions that occurred prior to that period were not communicated to her. Instead, she argues simply that Goodyear’s conduct during the charging period gave present effect to discriminatory conduct outside of that period. Brief for Petitioner 13. But current effects alone cannot breathe life into prior, uncharged discrimination; as we held in Evans, such effects in themselves have “no present legal consequences.” 431 U. S.,at 558. Ledbetter should have filed an EEOC charge within 180 days after each allegedly discriminatory pay decision was made and communicated to her. She did not do so, and the paychecks that were issued to her during the 180 days prior to the filing of her EEOC charge do not provide a basis for overcoming that prior failure.
Linda Greenhouse and other have chided the Court's opinion as unfair. This opinion should come as no shock--its simply extends the reasoning of Morgan to pay setting, which is clearly a discrete act.
Tuesday, May 29, 2007
Friday, May 25, 2007
SCOTUS holds that Tax Court provides the exclusive forum for challenges to IRS decisions on abatement of interest
In Hinck v. United States, SCOTUS rejected a claim that challenges on the abatement can be brought outside the Tax Court. According to the court, " In a single sentence, [the statute] provides a forum for adjudication, a limited class of potential plaintiffs, a statute of limitations, a standard of review, and authorization for judicial relief." The statute is clear that the Tax Court is the only forum where a taxpayer can challenge refusals to abate.
This is an interesting case. I have my doubts that the drafters of the statute viewed "Holy Scriptures" as any thing but the Bible. While it might be a good policy to allow use of other religious books in the oath giving process, this does not appear to be what the statute requires. We'll see if an appeal follows.
Thursday, May 24, 2007
When the deputies ordered respondents from their bed, they had no way of knowing whether the African-American suspects were elsewhere in the house. The presence of some Caucasians in the residence did not eliminate the possibility that the suspects lived there as well. As the deputies stated in their affidavits, it is not uncommon in our society for people of different races to live together. Just as people of different races live and work together, so too might they engage in joint criminal activity. The deputies, who were searching a house where they believed a suspect might be armed, possessed authority to secure the premises before deciding whether to continue with the search.
Wednesday, May 23, 2007
In applying these general standards to a §1 claim, we hold that stating such a claim requires a complaint with enough factual matter (taken as true) to suggest that an agreement was made. Asking for plausible grounds to infer an agreement does not impose a probability requirement at the pleading stage; it simply calls for enough fact to raise a reasonable expectation that discovery will reveal evidence of illegal agreement.
We'll see if this decisions gives rise to a greater likelihood that 12(b)(6) motions will be granted.
Tuesday, May 22, 2007
SCOTUS holds parents have a right to proceed pro se when challenging appropriateness of education under IDEA
SCOTUS concluded that the IDEA grants parents independent, enforceable rights, which are not limited to certain procedural and reimbursement-related matters and thus encompass the entitlement to a free appropriate public education for the parents’ child. Hence, it is not the unauthorized practice of law for the parent's to file suit without a lawyer when they seek a judicial determination that their child’s free appropriate public education is substantively inadequate.
The dissenters, quite forcefully, argued that the right to an appropriate public education belongs to the child and not the parents. Hence, the statute does not give the parents the right to serve as a representative of the child in court.
The Supreme Court applied the following factors to determine state of employment:
(1) Oxendine regularly worked for Employer in South Carolina during warm months for a number of years; (2) Oxendine went to Employer’s home/office in South Carolina on occasions to be paid, including at least once during the last interval of his work; (3) Oxendine often met co-workers at the place of employment to go to jobs; and (4) Oxendine performed work at Employer’s home immediately before his injury.
Based on these factor, the Court held the place of employment to be SC.
Monday, May 21, 2007
Of course, as long as students have debt and big firms have high salaries, the top students will still come.
The settlement calls for West Publishing to pay $36 million and Kaplan to pay $13 million. After $12 million in attorney fees, this translates into an average award of $125 each to the roughly 300,000 law students who took West Publishing's BAR/BRI courses between 1997 and 2006.
Wanting some more $$$, Disner drafted a 13-page brief arguing that the settlement lets West Publishing off the hook too lightly. He did not file the brief himself, but let the dissenting plaintiffs do so. If the case against BAR/BRI were to go to trial, Disner argues in the brief, it could result in a judgment of more than $400 million, based on the treble damages available under antitrust law.
Thursday, May 17, 2007
Wednesday, May 16, 2007
These seem to be pretty weak grounds for judicial discipline. It will be interesting to see how this case plays out.
Tuesday, May 15, 2007
Most of us expect that the court will give jury charges aimed at preventing punishment for harm to non-parties. North Dakota has just adopted the following instruction, which many states will likely copy:
In considering an award of exemplary or punitive damages, you may, in determining the reprehensibility of the Defendant's conduct, consider the harm the Defendant's conduct has caused to others. You may not, however, punish the Defendant for harm caused to others whose cases are not before you. You may punish the Defendant only for harm done to the Plaintiff.
We'll see how South Carolina trial courts handle this situation.
Monday, May 14, 2007
The mere fact that a procurement for cash transaction does not involve a direct contractual relationship between the foreign purchaser and the defense contractor does not dictate that UKMOD’s claim is statutorily barred. Indeed, any third-party beneficiary claim assumes the plaintiff does not have a direct contractual relationship with the defendant.
Thursday, May 10, 2007
SCRCP Rule 40(b) amended to provide that a case cannot be called to trial until 180 days have passed after joinder of new party
Wednesday, May 09, 2007
State Supreme Court agrees with Court of Appeals that no private right of action exists for allegedly failing to warn of child abuse
Tuesday, May 08, 2007
All indications are that the nominee will likely be either Steve Matthews of Haynsworth Sinkler Boyd, or Judge John Kittredge of the South Carolina Court of Appeals. Both have been long mentioned in this process. However, this could change with the shifting sands of the nomination process.
Matthews is a Yale law graduate and served in the U.S. Department of Justice during President Reagan's second term. He has a reputation of being one of the brightest intellects in the South Carolina bar. He was a trusted advisor for Attorney General Edwin Meese III.
Judge Kittredge has served on the South Carolina family court bench, the circuit court bench, and the last four years on the state Court of Appeals. He has a reputation for fairness, even temperament, and fastidious preparation. In fact, I appeared before a panel including Judge Kittredge just yesterday, and, as usual, it was a pleasure to argue before him.
Either man would make an excellent addition to the Fourth Circuit.
Williamson’s arguments to the Judge on this issue were not reflected in the record on appeal. Williamson's counsel indicated that she had briefed this issue before the judge, but the record on appeal did not contain a copy of the memo. However, the court of appeals acknowledged that the judge addressed the argument in his order awarding attorneys’ fees, which suggested that the argument was set forth in Williamson’s memorandum. In the order, the judge found Williamson’s argument that Middleton was not entitled to attorneys’ fees and costs pursuant to section 39-65-30 came too late because during trial, Williamson never objected to the jury instructions referencing section 39-65-30, nor did Williamson challenge the judge’s initial ruling that Middleton was entitled to attorneys’ fees.
To make the error preservation issue even more difficult, Williamson did not seek a reconsideration of these findings by Judge Pyle in its Rule 59(e) motion. Hence, the attorney fee issue was not properly preserved because it was not raised and ruled upon by the trial court.
Monday, May 07, 2007
Yet all authority is not created equal. If you are briefing an appeal in a particular federal appellate court, and the appeal's outcome depends on federal law, the best possible authority that one could cite would be the binding precedent of the U.S. Supreme Court. Equally as good, in most instances, would be an earlier precedential ruling from the same federal appellate court in which the current appeal is pending.
Sometimes, however, no binding precedent yet exists from either of those sources. In that circumstance, it would certainly be useful to cite to relevant rulings from other federal appellate courts. If other federal appellate courts have all construed the law's meaning the same way, the court before which the current appeal is pending will likely be reluctant to "split the circuits" by construing the law to mean the opposite of what the other courts have ruled.
Friday, May 04, 2007
Thursday, May 03, 2007
Fourth Circuit denies teacher's First Amendment claim regarding religious items removed from classroom
The Fourth Circuit affirmed, holding that
Because the Removed Items constitute school-sponsored speech bearing the imprimatur of the school, and they were designed to impart particular knowledge to the students at Tabb High, the Items are curricular in nature. As such, the dispute over Lee’s postings of the Removed Items is nothing more than an ordinary employment dispute. See Boring, 136 F.3d at 369 (concluding that disagreements over curricular speech constitute ordinary employment disputes). The Items do not constitute speech on a matter of public concern and are not protected by the First Amendment.
Wednesday, May 02, 2007
After selling her policy, Jane Doe sought to get more money by invoking the minimum pricing provisions of the Virginia Viatical Settlements Act. Life Partners, contended that the Virginia Act violated the dormant Commerce Clause, sought declaratory relief. The District Court ruled for the State and the Fourth Circuit affirmed, holding that in the McCarran-Ferguson Act, Congress delegated its commerce power to Virginia in sufficiently broad terms to cover viatical settlements.
Tuesday, May 01, 2007
The Supreme Court agreed with the trial court that “presence in the vicinity of static asbestos is not exposure to asbestos." Summary judgment was affirmed.
The court recognized that though it is correct that a person may not be prosecuted for the sale of alcohol to a minor under § 61-4-50 unless the minor is also prosecuted, this does not carry over to administrative sanctions for violation of a Department of Revenue Regulation. Administrative sanctions are not equivalent to a criminal prosecution.