In Williams v. SCDOC, a class action was commenced on behalf of inmates in custody of the South Carolina Department of Corrections. The inmates participated in a prison industry program operated pursuant to DOC's contract with respondent Williams Technologies, Inc. (WTI). The Inmates sued WTA and the SCDOIC arguing that claim they were underpaid for their labor and thus entitled to lost wages under the South Carolina Payment of Wages Act. The trial court dismissed the inmates suit and the state Supreme Court affirmed.
The Court held that the inmates could not maintain an action against WTI under the Payment of Wages Act since WTI is not the entity responsible for paying their wages. The contract between the SCDOC and WTI provided that WTI would pay DOC a flat rate of $4.00 per hour per inmate and that DOC was responsible to pay inmate workers and handle payroll deductions.
In dissent, Justice Pleicones forcefully argued that to hold that the payment of wages is exclusively within the control of the DOC ignores the language of S.C. Code Ann. 24-3-40, which provides that "the employer of a prisoner authorized to work … in a prison industry program … shall pay the prisoner's wages directly to the Department of Corrections" and then requires the DOC to distribute those wages to inmates on behalf of the employer. Thus, the ultimate responsibility for paying wages falls on the prison industry sponsor, while the DOC merely acts as a conduit for payment to the inmates. Hence, Pleicones would have allowed the suit to proceed forward.
My take on this is that Justice Pleicones is right on the law. However, knowing prisoners, once they learned of this new "right to sue," our courts would be inundated with Wage Payment Act Claims and thus the majority does not want to give them a tool with which to abuse the system.
Tuesday, February 27, 2007
Monday, February 26, 2007
Legal Notes from around the web
Check out Blawg Review #97, which includes two of my posts from last week regarding the Phillip Morris decision and consideration of a Compassionate Use Act in South Carolina. This week's review is hosted by Health Care Law Blog and has much to offer.
Fourth Circuit issues opinion on grouping of offenses and reduction of sentence
In UNITED STATES v. HARGROVE, Keith Hargrove pleaded guilty to three drug counts and was then tried and convicted of possession of a firearm in furtherance of drug trafficking in violation of 18 U.S.C. § 924(c) (2000). In calculating his guidelines sentence, the district court denied Hargrove a two-level reduction in offense level for the drug counts for acceptance responsibility. The Fourth Circuit vacated and remanded because the district court erred in believing that it had no legal authority to grant the reduction with respect to the drug offenses after Hargrove went trial on the 924(c) firearm charge. According to the panel:
Chief Judge Wilikins dissented. He would have ruled that in determining whether to grant the reduction, the district court could consider the fact that Hargrove proceeded to trial and contested the facts underlying his 924(c) offense.
He has pleaded guilty and did not go to trial on the narcotics counts grouped under the guidelines, which together constitute the only "offense" for purposes of 3E1.1. Thus, Hargrove has accepted responsibility for his 3E1.1 offense and so is eligible for the reduction. To be sure, he did proceed to trial on the 924(c) count, but that does not render him ineligible for the reduction because it is not subject to grouping with the guidelines offenses, is not factored into determining the guidelines offense level, and cannot be the basis for an acceptance of responsibility reduction. Because Hargrove accepted responsibility for all of the drug counts-- the counts grouped together under the guidelines that constitute the"offense" for the purposes of 3E1.1 --he was eligible for the reduction. The district court thus erred in concluding that it did not have the legal authority to grant Hargrove the reduction.
Chief Judge Wilikins dissented. He would have ruled that in determining whether to grant the reduction, the district court could consider the fact that Hargrove proceeded to trial and contested the facts underlying his 924(c) offense.
Friday, February 23, 2007
South Carolina Court of Appeals holds that attorney owes a duty to third parties to distribute settlement proceeds
In Moore v. Weinberg, after the settlement of litigation and receipt of proceeds, attorney distributed all the money and in the process overlooked an Assignment, which he drafted, of a portion of the proceeds to Wheeler. Wheeler sued the attorney for negligence. The trial court granted summary judgment in favor of the attorney and the Court of appeals reversed. According to the panel, the attorney drafted the Assignment and did not dispute that he had notice of it. The Rules of Professional Conduct and law from other jurisdictions established that the attorney owed a duty to Moore to disburse the funds. we conclude Weinberg owed Moore a duty to disburse the assigned funds to Moore.
The applicable part of Rule 1.15 provides:
(d) Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive . . . .
(e) When in the course of representation a lawyer is in possession of property in which two or more persons (one of whom may be the lawyer) claim interests, the property shall be kept separate by the lawyer until the dispute is resolved. The lawyer shall promptly distribute all portions of the property as to which the interests are not in dispute.
Hence, the grant of summary judgment was reversed.
The applicable part of Rule 1.15 provides:
(d) Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive . . . .
(e) When in the course of representation a lawyer is in possession of property in which two or more persons (one of whom may be the lawyer) claim interests, the property shall be kept separate by the lawyer until the dispute is resolved. The lawyer shall promptly distribute all portions of the property as to which the interests are not in dispute.
Hence, the grant of summary judgment was reversed.
Thursday, February 22, 2007
Chief Justice Toal calls on General Assembly to create more judges
From the Daily Comet:
Saying South Carolina's courts are in crisis, Toal reiterated her request for three additional judges for both the Circuit Court and Family Court levels. She asked lawmakers to make them at-large positions, so they can rotate to where they're needed most.
"South Carolina has fewer judges and a heavier case load per judge than any other court system in the nation," she said.
Saying South Carolina's courts are in crisis, Toal reiterated her request for three additional judges for both the Circuit Court and Family Court levels. She asked lawmakers to make them at-large positions, so they can rotate to where they're needed most.
"South Carolina has fewer judges and a heavier case load per judge than any other court system in the nation," she said.
S.C. Supreme Court affirms trial judge's decision to excuse equivocal juror from death penalty case
In State v. Lindsey, Lindsey appealed his conviction and sentence of death on the ground that the trial judge erroneously excluded a juror because during voir dire the juror equivocated on whether he could impose the death penalty. The trial judge found that the juror's belief that life in prison was worse than death would substantially impair the juror's ability to follow the law as instructed. He further noted that when asked about giving the death penalty, the juror "took a very big deep [breath] and exhaled as if he were very uncertain as to whether or not he could do that." The judge concluded "from watching him" and considering his inconsistent responses, that the juror should be excused.
The Supreme Court affirmed the trial court's handling of the matter. The juror's equivocal views regarding the death penalty, his responses favoring a life sentence despite the facts of the case, and his noted hesitation when asked if he could vote for death, are a reasonable basis for the trial judge’s conclusion that the juror's views would substantially impair his ability to act as an impartial juror.
The Supreme Court affirmed the trial court's handling of the matter. The juror's equivocal views regarding the death penalty, his responses favoring a life sentence despite the facts of the case, and his noted hesitation when asked if he could vote for death, are a reasonable basis for the trial judge’s conclusion that the juror's views would substantially impair his ability to act as an impartial juror.
Wednesday, February 21, 2007
S.C. Supreme Court offers more guiadance on what is impermissible during closing arguments
In State v. Northcutt, Northcutt was found guilty of murdering an infant and was sentenced to death. However, because of an improper closing argument, the South Carolina Supreme Court reversed and remanded for a new sentencing proceeding. In closing, the solicitor made the following improper comments/actions:
1. the solicitor suggested declaring an "open season on babies in Lexington County" if the death penalty was not returned.
2. The solicitor also repeatedly told the jury he "expects" the death penalty and, in doing so, ignored precedent which rebukes such an imposition of the solicitor's personal belief.
3. The solicitor concluded his argument by producing a large black shroud and draping it over the baby's crib. He wheeled the crib from the courtroom in a staged funeral procession.
These comments and actions, according to the court, so infected the trial with unfairness as to make the resulting conviction a denial of due process.
1. the solicitor suggested declaring an "open season on babies in Lexington County" if the death penalty was not returned.
2. The solicitor also repeatedly told the jury he "expects" the death penalty and, in doing so, ignored precedent which rebukes such an imposition of the solicitor's personal belief.
3. The solicitor concluded his argument by producing a large black shroud and draping it over the baby's crib. He wheeled the crib from the courtroom in a staged funeral procession.
These comments and actions, according to the court, so infected the trial with unfairness as to make the resulting conviction a denial of due process.
SCOTUS holds that a petition for cert. does not toll AEDPA's limittaions period in 2254 actions
In LAWRENCE v. FLORIDA, SCOTUS considered the effect of a petition for a writ of certiorari on AEDPA's tolling provisions. Congress established a 1-year statute of limitations for seeking federal habeas corpus relief from a state-court judgment, 28 U. S. C. 2244(d), and further provided that the limitations period is tolled while an "application for State post-conviction or other collateral review" "is pending." Lawrence argued that a state application is still "pending" when the state courts have entered a final judgment on the matter but a petition for certiorari has been filed in the United States Supreme Court.
SCOTUS held that a petition for certiorari is not part of the state post-conviction proceeding and thus a petition for cert does not toll the 1-year statute of limitations. According to Justice Thomas:
SCOTUS held that a petition for certiorari is not part of the state post-conviction proceeding and thus a petition for cert does not toll the 1-year statute of limitations. According to Justice Thomas:
This Court is not a part of a "State's post-conviction procedures." State review ends when the state courts have finally resolved an application for state post conviction relief. After the State's highest court has issued its mandate or denied review, no other state avenues for relief remain open. And an application for state post conviction review no longer exists. All that remains is a separate certiorari petition pending before a federal court.
Tuesday, February 20, 2007
After Phillip Morris: What can a jury consider for punitive damages purposes? SCOTUS sets an unworkable standard
In PHILIP MORRIS USA v. WILLIAMS, the Supreme Court held that the Constitution's Due Process Clause prohibits a jury from basing a punitive damages award upon its desire to punish the defendant for harming persons who are not before the court. Punishment for acts that do not harm the plaintiff, according to the Court, would amount to a taking of "property" from the defendant without due process of law. So far so good.
However, the Court went on to hold that evidence of actual harm to non-parties is relevant to the reprehensibility prong of BMW v. Gore. So, while the jury may listen to evidence of harms to others, a jury may not go further than this and use a punitive damages verdict to punish a defendant directly on account of harms it is alleged to have visited on non-parties. The Due Process Clause requires States to provide assurance that juries are not punishing a defendant for harm caused to strangers to the litigation. Unfortunately, the Court gives no guidance on just how trial judges are to administer this standard.
Philip Morris argued that the following instructions should have been given by the trial court:
I do not interpret the majority opinion as approving or disapproving of this instruction. But, even if we assume it is a proper instruction, this is no more than a fiction. Only a fool would believe that a jury faced with such a limiting instruction would actually abide by it. (Admittedly, such fictions are employed all the time by judges, but this fiction can implicate enormous sums of money). A better course for the High Court, in my opinion, would have been to exclude all evidence of harm to non-parties or to permit full consideration of harm to others for punitive damages purposes. As it stands, the Court has crafted an unworkable standard.
In actuality, a trial judge has but three options when considering evidence of harms to non-parties: (1) admit the evidence and give a limiting instruction similar to the one above;(2) exclude evidence of harm to non-parties on an 403-type analysis (i.e., such evidence is unduly prejudicial and will be considered by the jury in awarding damages; or (3) permit evidence of harm to non-parties on the grounds that it is not unduly prejudicial and that the evidence will not be a major factor in the jury's award of punitive damages. Depending on the circumstances of a case, all three might be viable options. We are not dealing with a bright-line rule here.
Only one thing is certain after this latest SCOTUS pronouncement on punitive damages: There will be more litigation and conflicting opinions as the trial and appellate courts attempt handle evidence of acts not harming the plaintiff.
However, the Court went on to hold that evidence of actual harm to non-parties is relevant to the reprehensibility prong of BMW v. Gore. So, while the jury may listen to evidence of harms to others, a jury may not go further than this and use a punitive damages verdict to punish a defendant directly on account of harms it is alleged to have visited on non-parties. The Due Process Clause requires States to provide assurance that juries are not punishing a defendant for harm caused to strangers to the litigation. Unfortunately, the Court gives no guidance on just how trial judges are to administer this standard.
Philip Morris argued that the following instructions should have been given by the trial court:
"you may consider the extent of harm suffered by others in determining what [the] reasonable relationship is" between Philip Morris' punishable misconduct and harm caused to Jesse Williams, "[but] you are not to punish the defendant for the impact of its alleged misconduct on other persons, who may bring lawsuits of their own in which other juries can resolve their claims . . . ."
I do not interpret the majority opinion as approving or disapproving of this instruction. But, even if we assume it is a proper instruction, this is no more than a fiction. Only a fool would believe that a jury faced with such a limiting instruction would actually abide by it. (Admittedly, such fictions are employed all the time by judges, but this fiction can implicate enormous sums of money). A better course for the High Court, in my opinion, would have been to exclude all evidence of harm to non-parties or to permit full consideration of harm to others for punitive damages purposes. As it stands, the Court has crafted an unworkable standard.
In actuality, a trial judge has but three options when considering evidence of harms to non-parties: (1) admit the evidence and give a limiting instruction similar to the one above;(2) exclude evidence of harm to non-parties on an 403-type analysis (i.e., such evidence is unduly prejudicial and will be considered by the jury in awarding damages; or (3) permit evidence of harm to non-parties on the grounds that it is not unduly prejudicial and that the evidence will not be a major factor in the jury's award of punitive damages. Depending on the circumstances of a case, all three might be viable options. We are not dealing with a bright-line rule here.
Only one thing is certain after this latest SCOTUS pronouncement on punitive damages: There will be more litigation and conflicting opinions as the trial and appellate courts attempt handle evidence of acts not harming the plaintiff.
South Carolina lawmakers review bill to legalize marijuana for medical use
According to WPDE, Marijuana could be a prescription drug, if a Lowcountry senator's bill passes through South Carolina Legislature. A Myrtle Beach woman, whose husband has pancreatic cancer, is fighting to see the bill passed. Sandy Gabriel's husband was diagnosed six years ago, and she's been his caretaker ever since. This month, in between his many surgeries and doctor's appointments, she travels to the state capital, pushing a bill that would legalize medical use of marijuana. Sandy says, "I think medical marijuana does help with pain, nausea, depression, anxiety, and most of all, appetite."
Of course, even if the bill passes (likely not in conservative South Carolina), Gonzales v. Raich is still on the books. In this landmark Commerce Clause case, the Supreme Court affirmed that Congress’ power to regulate local, intrastate matters is boundless. The question presented in Raich was whether Congress may prohibit the medicinal use of cannabis via the federal Controlled Substances Act--even if the cannabis at issue is grown using only soil, water, nutrients, tools, and supplies made or originating in a single state, never crosses state lines, and never is sold in the stream of commerce.
Writing for the Court, Justice John Paul Stevens noted that "the diversion of homegrown marijuana tends to frustrate the federal interest in eliminating commercial transactions in the interstate market in their entirety." "[P]roduction of the commodity meant for home consumption, be it wheat or marijuana, has a substantial effect on supply and demand in the national market for that commodity." Hence, the Controlled Substances Act will trump any Compassionate Use Act passed in South Carolina.
Of course, even if the bill passes (likely not in conservative South Carolina), Gonzales v. Raich is still on the books. In this landmark Commerce Clause case, the Supreme Court affirmed that Congress’ power to regulate local, intrastate matters is boundless. The question presented in Raich was whether Congress may prohibit the medicinal use of cannabis via the federal Controlled Substances Act--even if the cannabis at issue is grown using only soil, water, nutrients, tools, and supplies made or originating in a single state, never crosses state lines, and never is sold in the stream of commerce.
Writing for the Court, Justice John Paul Stevens noted that "the diversion of homegrown marijuana tends to frustrate the federal interest in eliminating commercial transactions in the interstate market in their entirety." "[P]roduction of the commodity meant for home consumption, be it wheat or marijuana, has a substantial effect on supply and demand in the national market for that commodity." Hence, the Controlled Substances Act will trump any Compassionate Use Act passed in South Carolina.
Sunday, February 18, 2007
Blawg Review #96
Welcome to this Presidents Day edition of Blawg Review. The South Carolina Appellate Law Blog is pleased to have y'all drop by. As the tag line indicates, my Blog follows the opinions of SCOTUS, the Fourth Circuit, and the South Carolina appellate courts. I also try to mix in a bit of fun and other legal news along the way.
As for me, I practice in Greenville, South Carolina, in the areas of civil and criminal appeals, health care, and professional negligence. A commitment to pro bono legal services is an important part of my practice. I serve as a pro bono special prosecutor for the state Attorney General in criminal domestic violence cases and also usually have at least one or two pro bono criminal appeals going at the same time. But for those darn Rules of Professional Conduct, I could convict a wife-beater and then represent him on appeal!
For those of you who don't know, Blawg Review is a collection of the best legal posts from around the blogosphere. I thank the editors for giving me this opportunity to host. I have divided the posts into broad categories reflecting the interests on the law blogging community during the past week. Each category will be dedicated to a different President in honor of the holiday. Without further delay, let's rock and roll with Blawg Review # 96.
SCOTUS
This category is dedicated to William Howard Taft for his services as POTUS and on SCOTUS!
Let's start with the big boys and girls in the black robes. They have been quiet lately, but we can soon expect things to heat up.
Orin Kerr at the Volokh Conspiracy questions whether Congress can force the Supremes to televise oral argument and other proceedings. Ilya Somin concurs with Kerr that Congress does have the power if it is so inclined. Hmmmm... I wonder if Justice Thomas would ask more questions if he was on camera?
Lyle Denniston of SCOTUS Blog reported on a new Guantanamo detainee case coming before the Supreme Court, this time involving a Chinese citizen from a persecuted ethnic minority group there.
IP Law
This section is dedicated to George Washington, who signed the First United States Patent Grant on July 31, 1790.
Trademark law rears its ugly head in the world of rock! Michael Atkins reported a case of a "band on the run" after discovering that their name was taken already by another band.
William Patry discussed an important case which considered when a copyright renewal term commences.
Congress has approved the creation of patent-specific judicial training but Tim Lee and others were not convinced that expertise is always a good thing.
Marty Schwimmer noted a copyright infringement dust-up between comedians Joe Rogan and Carlos Mencia. The Techdirt post has more details, including Mencia's DMCA takedown of Rogan's YouTube video documenting his claims.
At the Fraser Gallery, Doug Sanford is exhibiting photographs of his exgirlfriend's emails to him. She wrote them after she learned of his infidelities and ended her relationship with him. Transcending Gender reported that the exgirlfriend threatened legal action against Sanford and the gallery for copyright infringement; she claimed the words of the email were her property.
The fight over Pooh Bear heats up. The Likelihood of Confusion tried to make this legal fight a little less confusing. But since I am not an IP lawyer, I remain confused.....
GI protection and how it can be accomplished is discussed at IP Notions.
The Net
Depending on how you handle hanging chads, Al Gore could have been president of the US. Because of his contribution in inventing the Internet, this section is dedicated to Albert.
Over at Concurring Opinions, you'll find a nice list of the best and worst of Internet laws.
Eric Turkewitz reported that the FDA is becoming concerned about drugs many Americans are buying over the internet. Many folks, it seems, are getting sick.
Law Firm Life
This category is dedicated to "His Rotundity" John Adams--the first lawyer to serve as POTUS.
Anonymous Lawyer knows the deal on life at a big law firm. I tell all students who ask me about law school to read his book and his blog. This week it appears AL was stabbed by an aggrieved associate . . . again. It seems AL ruined the man's life or something. A partner ruining an associate's life?? Come on--get real.
Speaking of being an arse, lawyers can behave like kids in a deposition, and Stephen Bainbridge discussed the latest case of misbehavior.
The formerly anonymous (and still great) Enrico Schafer mused that lawyers can be the most unreasonable people on Earth and that this profession can cost you a lot, including your personality.
Money Money Money. Associate salaries are in the news. David Lat at Abovethelaw noted that some have finally put the associate salary rise in proper perspective by divvying up the increase on a per-partner basis and calculating the number of bespoke suits each partner will have to forgo to pay for their greedy associates.
If you want to avoid big firms issues, should you consider hanging out a shingle right out of school? Susan Liebel discusses the risks and rewards.
Are there more jerks in law than in other occupations? Chuck Newton considers the issues.
Is it enough to be a "good lawyer" if you want to have those great cases?? Legal Marketing Blog discusses how to get work through the doors.
Many female lawyers are opting out of big firm life. I always knew women were smarter than men. Legal Profession Blog has the scoop.
Charles Green answers the old client question "why should we choose you?"
Honest Abe wanted to discourage litigation? So reported this post at Overlawyered.
Want to use a nickname or moniker in advertising in NY? Well, you better read this post from Sui Generis before you begin.
Ever wondered how a law firm should be designed to properly impress the clients? Starslate gives us the details with this post.
This post from veryLegal is worth a block quote. Preach it!
International Issues
This category is dedicated to Woodrow Wilson and his legacy of international intervention.
Roger Alford tells us about a habeas case which prevented the transfer of an American citizen to the jurisdiction of the Iraqi courts.
Peter Spiro over at Opinio Juris attempted to determine, despite a thin Senatorial record, where President Obama might stand on international law; his hiring choices thus far and his stance on the Darfur genocide might offer some insights.
Torture ought not even be debated, but in Dubya's war on terror it unfortunately is. Peggy McGuinness discussed how the "ticking time bomb" myth shapes our perceptions about the acceptability and utility of torture.
Geeklawyer, the IP Barrister, is putting together a conference for Brit bloggers in May--he's been working really hard on it. I wouldn't mind having a pint or two and discussing blogging with that distinguished line up.
So you want to break into international law or China law? China Law Blog has some tips.
History
I dedicate this section to Mr. Jefferson--my favorite president in US History.
Eric Muller posted a "cool" letter he found relating to the Gibbons v. Ogden decision and noted the over-the-top oration employed during the hearing. Ann Althouse found that those involved didn't shy away from the double entendres she's noted in teaching the decision.
Should the Framers have ditched the Vice Presidency? Sandy Levinson, in considering a hypothetical redesign of the Constitution, wondered what value (if any) the vice-presidency has.
Mary Dudziak at Legal History Blog discussed the recently-discovered unsuccessful efforts of Otto Frank to gain entry into the US for Anne and the rest of the Frank family. Eric Muller of Is that legal? related his ancestor's similar story during the Holocaust and lamented "the sadness of failed rescue."
Legal Writing
This section is dedicated to Andrew Johnson, who taught himself to read and never spent one day in formal education.
For an interesting take on how court rules hamper the efforts of strong legal writers, see Attorney Mark Herrmann's recent blog post. Herrmann refers specifically to the work of two talented writers on the Seventh Circuit's bench, writers who know when to break the rules.
Lawrence Solum blogged the "Writing About the Law" conference at New York Law School, a conference attended by fellow bloggers Randy Barnett (of Volokh Conspiracy) and Ann Althouse.
Employment
This section is dedicated to FDR who was very successful at keeping himself employed.
Michael Fitzgibbon highlighted several key elements regarding the tort of negligent hiring. This tort is based upon the theory that an employer has a duty to protect its employees and customers from other employees that the employer has reason to believe, or should have reason to believe, pose a threat to others.
Overlawyered reported that things don't work out to well when government prohibits employers from checking into an applicants background.
Ted Frank informed us that a case involving death of a policeman sickened after working "fourteen hour days in the smoldering pit" at the World Trade Center site took a strange turn as it was revealed that the man only worked a few shifts for overtime pay and only months after 9/11 when the "smoldering pit" was no longer smoldering.
Miscellaneous
As for me, I practice in Greenville, South Carolina, in the areas of civil and criminal appeals, health care, and professional negligence. A commitment to pro bono legal services is an important part of my practice. I serve as a pro bono special prosecutor for the state Attorney General in criminal domestic violence cases and also usually have at least one or two pro bono criminal appeals going at the same time. But for those darn Rules of Professional Conduct, I could convict a wife-beater and then represent him on appeal!
For those of you who don't know, Blawg Review is a collection of the best legal posts from around the blogosphere. I thank the editors for giving me this opportunity to host. I have divided the posts into broad categories reflecting the interests on the law blogging community during the past week. Each category will be dedicated to a different President in honor of the holiday. Without further delay, let's rock and roll with Blawg Review # 96.
SCOTUS
This category is dedicated to William Howard Taft for his services as POTUS and on SCOTUS!
Let's start with the big boys and girls in the black robes. They have been quiet lately, but we can soon expect things to heat up.
Orin Kerr at the Volokh Conspiracy questions whether Congress can force the Supremes to televise oral argument and other proceedings. Ilya Somin concurs with Kerr that Congress does have the power if it is so inclined. Hmmmm... I wonder if Justice Thomas would ask more questions if he was on camera?
Lyle Denniston of SCOTUS Blog reported on a new Guantanamo detainee case coming before the Supreme Court, this time involving a Chinese citizen from a persecuted ethnic minority group there.
IP Law
This section is dedicated to George Washington, who signed the First United States Patent Grant on July 31, 1790.
Trademark law rears its ugly head in the world of rock! Michael Atkins reported a case of a "band on the run" after discovering that their name was taken already by another band.
William Patry discussed an important case which considered when a copyright renewal term commences.
Congress has approved the creation of patent-specific judicial training but Tim Lee and others were not convinced that expertise is always a good thing.
Marty Schwimmer noted a copyright infringement dust-up between comedians Joe Rogan and Carlos Mencia. The Techdirt post has more details, including Mencia's DMCA takedown of Rogan's YouTube video documenting his claims.
At the Fraser Gallery, Doug Sanford is exhibiting photographs of his exgirlfriend's emails to him. She wrote them after she learned of his infidelities and ended her relationship with him. Transcending Gender reported that the exgirlfriend threatened legal action against Sanford and the gallery for copyright infringement; she claimed the words of the email were her property.
The fight over Pooh Bear heats up. The Likelihood of Confusion tried to make this legal fight a little less confusing. But since I am not an IP lawyer, I remain confused.....
GI protection and how it can be accomplished is discussed at IP Notions.
The Net
Depending on how you handle hanging chads, Al Gore could have been president of the US. Because of his contribution in inventing the Internet, this section is dedicated to Albert.
Over at Concurring Opinions, you'll find a nice list of the best and worst of Internet laws.
Eric Turkewitz reported that the FDA is becoming concerned about drugs many Americans are buying over the internet. Many folks, it seems, are getting sick.
Law Firm Life
This category is dedicated to "His Rotundity" John Adams--the first lawyer to serve as POTUS.
Anonymous Lawyer knows the deal on life at a big law firm. I tell all students who ask me about law school to read his book and his blog. This week it appears AL was stabbed by an aggrieved associate . . . again. It seems AL ruined the man's life or something. A partner ruining an associate's life?? Come on--get real.
Speaking of being an arse, lawyers can behave like kids in a deposition, and Stephen Bainbridge discussed the latest case of misbehavior.
The formerly anonymous (and still great) Enrico Schafer mused that lawyers can be the most unreasonable people on Earth and that this profession can cost you a lot, including your personality.
Money Money Money. Associate salaries are in the news. David Lat at Abovethelaw noted that some have finally put the associate salary rise in proper perspective by divvying up the increase on a per-partner basis and calculating the number of bespoke suits each partner will have to forgo to pay for their greedy associates.
If you want to avoid big firms issues, should you consider hanging out a shingle right out of school? Susan Liebel discusses the risks and rewards.
Are there more jerks in law than in other occupations? Chuck Newton considers the issues.
Is it enough to be a "good lawyer" if you want to have those great cases?? Legal Marketing Blog discusses how to get work through the doors.
Many female lawyers are opting out of big firm life. I always knew women were smarter than men. Legal Profession Blog has the scoop.
Charles Green answers the old client question "why should we choose you?"
Honest Abe wanted to discourage litigation? So reported this post at Overlawyered.
Want to use a nickname or moniker in advertising in NY? Well, you better read this post from Sui Generis before you begin.
Ever wondered how a law firm should be designed to properly impress the clients? Starslate gives us the details with this post.
This post from veryLegal is worth a block quote. Preach it!
Now we will take a closer look and find out what lawyers say about their jobs. Lawyers complain of a lack of control, being sandwiched between judges and clients. They complain about the increasing hostility between fellow lawyers, a lack of loyalty between partners, and a diminishing public image(all those lawyer jokes don’t help). But paramount to all these, they complain about the torturous hours.
Lets get straight to the crux then, the hours. Lawyers nowadays just do not have enough time for their families and themselves at all. They complain of being sacrificed to the company instead of dedicating themselves to it. Whats the normal working hours like for a big firm associate? Think at least 12 hours, six days a week. Now we are beginning to understand a little of the problem.
International Issues
This category is dedicated to Woodrow Wilson and his legacy of international intervention.
Roger Alford tells us about a habeas case which prevented the transfer of an American citizen to the jurisdiction of the Iraqi courts.
Peter Spiro over at Opinio Juris attempted to determine, despite a thin Senatorial record, where President Obama might stand on international law; his hiring choices thus far and his stance on the Darfur genocide might offer some insights.
Torture ought not even be debated, but in Dubya's war on terror it unfortunately is. Peggy McGuinness discussed how the "ticking time bomb" myth shapes our perceptions about the acceptability and utility of torture.
Geeklawyer, the IP Barrister, is putting together a conference for Brit bloggers in May--he's been working really hard on it. I wouldn't mind having a pint or two and discussing blogging with that distinguished line up.
So you want to break into international law or China law? China Law Blog has some tips.
History
I dedicate this section to Mr. Jefferson--my favorite president in US History.
Eric Muller posted a "cool" letter he found relating to the Gibbons v. Ogden decision and noted the over-the-top oration employed during the hearing. Ann Althouse found that those involved didn't shy away from the double entendres she's noted in teaching the decision.
Should the Framers have ditched the Vice Presidency? Sandy Levinson, in considering a hypothetical redesign of the Constitution, wondered what value (if any) the vice-presidency has.
Mary Dudziak at Legal History Blog discussed the recently-discovered unsuccessful efforts of Otto Frank to gain entry into the US for Anne and the rest of the Frank family. Eric Muller of Is that legal? related his ancestor's similar story during the Holocaust and lamented "the sadness of failed rescue."
Legal Writing
This section is dedicated to Andrew Johnson, who taught himself to read and never spent one day in formal education.
For an interesting take on how court rules hamper the efforts of strong legal writers, see Attorney Mark Herrmann's recent blog post. Herrmann refers specifically to the work of two talented writers on the Seventh Circuit's bench, writers who know when to break the rules.
Lawrence Solum blogged the "Writing About the Law" conference at New York Law School, a conference attended by fellow bloggers Randy Barnett (of Volokh Conspiracy) and Ann Althouse.
Employment
This section is dedicated to FDR who was very successful at keeping himself employed.
Michael Fitzgibbon highlighted several key elements regarding the tort of negligent hiring. This tort is based upon the theory that an employer has a duty to protect its employees and customers from other employees that the employer has reason to believe, or should have reason to believe, pose a threat to others.
Overlawyered reported that things don't work out to well when government prohibits employers from checking into an applicants background.
Ted Frank informed us that a case involving death of a policeman sickened after working "fourteen hour days in the smoldering pit" at the World Trade Center site took a strange turn as it was revealed that the man only worked a few shifts for overtime pay and only months after 9/11 when the "smoldering pit" was no longer smoldering.
Miscellaneous
We are wrapping up fast here and that's a good feeling. So let's dedicate this final section to the Era of Good Feeling and James Monroe.
Unintended consequences of Sarbanes-Oxley--The law designed to increase transparency has resulted in companies keeping secrets from investors by selling bonds, or debt securities, that aren't registered with the Securities and Exchange. Leon Gettler tells us all about it.
Hanno Kaiser at the Antitrust Review criticizes Louis Kaplow and Carl Shapiro's paper "Antitrust" for failing to pay attention to "the ideological underpinnings of antitrust and the normative distributive commitments that are part and parcel of economic theory. "
MLB and the beer advertisements: They say their players should not sell suds, but Bud Selig has no issues with Miller Lite advertising during baseball games. Sports Law Blog has a good post on this and related issues.
Congress considers permitting federal reimbursement for midwife services. The Mommy Blog tells us about the proposed legislation here.
Blawg Review has information about next week's host, and instructions how to get your blawg posts reviewed in upcoming issues.
Friday, February 16, 2007
Judge Ralph King Anderson works for new Florence court house
From SC.Now.com:
S.C. Court of Appeals Judge Ralph King Anderson, in his quest for a new Florence County judicial center, has received the support of the state's Supreme Court chief justice and the free services of Horry County’s facilities supervisor."We have, in my judgment, a court crisis in Florence County," Anderson told the Florence County Council during its meeting Thursday morning.
S.C. Court of Appeals Judge Ralph King Anderson, in his quest for a new Florence County judicial center, has received the support of the state's Supreme Court chief justice and the free services of Horry County’s facilities supervisor."We have, in my judgment, a court crisis in Florence County," Anderson told the Florence County Council during its meeting Thursday morning.
HomeGold CEO files notice of appeal
From WYFF:
Former HomeGold CEO Ronnie Sheppard is asking to be released from prison while he appeals his fraud conviction.
Sheppard filed papers with the South Carolina Court of Appeals. A jury in Lexington convicted him of securities fraud, conspiracy, and obtaining property by false pretenses earlier this month. He was sentenced to 20 years in prison.
Former HomeGold CEO Ronnie Sheppard is asking to be released from prison while he appeals his fraud conviction.
Sheppard filed papers with the South Carolina Court of Appeals. A jury in Lexington convicted him of securities fraud, conspiracy, and obtaining property by false pretenses earlier this month. He was sentenced to 20 years in prison.
Wednesday, February 14, 2007
S.C. Supreme Court refuses to suppress recorded conversation of suspects in police custody
In State v. Turner, two suspects were arrested, read their rights, and placed in the back of a police car. The officer turned on recording equipment which captured an incriminating conversation between the two suspects. At trial, the suspects argued that the conversations should have been suppressed. The Supreme Court agreed that the tape should not have been suppressed. Miranda was not implicated by the taping of the suspects while in the police vehicle because, while they were undoubtedly in police custody at the time of the recording, there was no actual interrogation or functional equivalent.
S.C. Supreme Court clarifies takings law
In Hardin v. SCDOT, the state supreme court considered whether road construction that deprives an owner of convenient access to a main road constitutes a taking for which the plaintiffs were owed compensation. The Supreme Court held that there was no taking. According to the Court, modern takings principles instruct that road closings and realignments which do not "take" land or an easement from a property owner do not give rise to compensable takings because these actions do not directly interfere with an owner’s rights in the property as a whole.
Monday, February 12, 2007
Fourth Circuit holds that subcontractors do not have right to interpleaded funds owed to a government contractor
IN RE: BALTIMORE MARINE INDUSTRIES, the Fourth Circuit considered whether unpaid subcontractors have an absolute right to interpleaded funds owed to a government contractor, when the contractor has petitioned for bankruptcy. The panel answered the question in the negative. Because an unpaid subcontractor is not subrogated to the contractor's interest in the funds, the contractor's interest remains and must be included in the bankruptcy estate. Consequently, funds cannot be awarded directly to the contractor.
Friday, February 09, 2007
New anti-smoking laws under consideration in General Assembly
According to this story, SC legislators are considering a bill that would ban anyone in South Carolina from smoking in a vehicle with a child under 10 years old.
Criticism of ABA's work on judicial ethics
According to this NYT editorial, it sounds like the ABA will not be banning expense-paid judicial seminars that are held at desirable resorts and underwritten by private interests.
Wednesday, February 07, 2007
Allen charge is not required to be given when a juror retracts her verdict during polling
In State v. Kelly, after the jury rendered a verdict of guilty, one juror during the polling process expressed discomfort with the verdict. The trial judge sent the jurors back to the jury room to continue deliberations. The defense moved for a mistrial and argued that a full Allen charge should be given. The panel indicated that because the juror did not indicate that she was coerced into voting for a guilty verdict, nor did she indicate that the jury was hopelessly deadlocked, a mistrial was not required. As for the Allen charge, the panel held that there is no case law requiring or suggesting that an Allen charge be given when a juror retracts her verdict during polling.
In PCR matters, litigants are not required to petition for cert to have exhausted all state remedies
In Dunlap v. State, the state Supreme Court put the Bar on notice that in appeals from criminal convictions or post-conviction relief matters, a litigant is not required to petition for rehearing and certiorari following an adverse decision of the Court of Appeals in order to be deemed to have exhausted all available state remedies respecting a claim of error. Instead, when the claim has been presented to the Court of Appeals, and relief has been denied, the litigant is deemed to have exhausted all available state remedies.
Tuesday, February 06, 2007
S.C. Court of Appeals affirms mistrial on grounds of witness coaching
In State v. Smith, a mistrial was granted in a sexual assault case because one of the victims was coached while he was testifying. The child's mother acted inappropriately making mouthing words to the child and shaking her head during his testimony. This coaching denied the accused of a fair trial and thus the grant of a mistrial was warranted.
S.C. Supreme Court recognizes new tort
In Marcum v. Bowden, the state Supreme Court held that an adult social host who knowingly and intentionally serves, or causes to be served, an alcoholic beverage to a person he knows or reasonably should know is between the ages of 18 and 20 is liable to the person served and to any other person for damages proximately resulting from the host's service of alcohol.
Formerly the social host incurred no liability to either first or third parties injured by an intoxicated adult guest.
Formerly the social host incurred no liability to either first or third parties injured by an intoxicated adult guest.
Monday, February 05, 2007
Fourth Circuit decides conflict of interest case
In UNITED STATES v. NICHOLSON, the Fourth Circuit considered the issue of unconsentable conflicts in a criminal defense setting. Nicholson asserted that his lawyer was operating under an actual conflict of interest at his August 29, 2001 sentencing hearing because, at that time, Nicholson's lawyer, Jon Babineau, was representing Nicholson as well as another client, Lorenzo Butts. Butts had previously threatened to kill Nicholson and his family, had attempted to kill Nicholson's brother, and had already killed Nicholson’s step-father. Nicholson, who was convicted of a federal offense for his possession of a firearm and ammunition by a felon, asserted that he carried the handgun to protect himself from Butts. Nicholson maintained that Babineau, during the sentencing proceedings, failed to request a downward departure based on Nicholson's need to carry the handgun because, in so doing, Babineau would have accused his other client (Butts) of uncharged criminal conduct.
The panel agreed that an actual conflict of interest existed. Although Nicholson and Butts were not charged with offenses arising out of the same set of circumstances, Nicholson's interests, on the one hand, and Butts' interests, on the other, were in total opposition to each other during Babineau' s simultaneous representation of them. The panel remanded to the district court for a determination of whether this conflict affected Babineau's performance at the sentencing hearing.
The panel agreed that an actual conflict of interest existed. Although Nicholson and Butts were not charged with offenses arising out of the same set of circumstances, Nicholson's interests, on the one hand, and Butts' interests, on the other, were in total opposition to each other during Babineau' s simultaneous representation of them. The panel remanded to the district court for a determination of whether this conflict affected Babineau's performance at the sentencing hearing.
Friday, February 02, 2007
South Carolina legislator wants to challenge federal immigration laws
From Aiken Today:
Declaring that illegal immigrants cost the state too much money, a South Carolina lawmaker on Thursday proposed denying them access to some hospital care and shutting them out of public schools.
State Rep. Mike Pitts said his proposal, quickly criticized by immigrant advocates and the state's hospitals, should be passed even if it violates federal laws. Washington, Pitts said, isn't doing "anything to attempt to solve this problem."
Declaring that illegal immigrants cost the state too much money, a South Carolina lawmaker on Thursday proposed denying them access to some hospital care and shutting them out of public schools.
State Rep. Mike Pitts said his proposal, quickly criticized by immigrant advocates and the state's hospitals, should be passed even if it violates federal laws. Washington, Pitts said, isn't doing "anything to attempt to solve this problem."
Wednesday, January 31, 2007
S.C. Court of Appeals gives guidance in valuation of physician practices
In Keane v. Lowcountry Pediatrics, the Court of Appeals reversed a trial court order calculating the share value of the practice by including good will. According to the Court of Appeals, South Carolina courts should not, in valuing a professional association, include the goodwill of the professional because of its speculative nature and the fact that goodwill 'attaches solely to the person of the professional man or woman as a result of confidence in his or her skill and ability and does not possess value or constitute an asset separate and apart from the professional's person.' Absent a contractual provision, good will should not be included in a share price.
S.C. Supreme Court decides scope of state's DNA identification statute
In Cannon v. South Carolina Department of Probation, the Supreme Court considered whether the South Carolina Deoxyribonucleic Acid (DNA) Identification Record Database Act required Cannon, as a condition of his parole, to submit a DNA sample to the state's database. The statute at issue provided that: "A person convicted . . . before July 1, 2000, who is serving a probated sentence or is paroled on or after July 1, 2000, for: [one or more enumerated crimes]." Cannon was paroled in 1983. He argued to the trial court that the word "paroled" refers to an individual who is "released to parole" on or after July 1, 2000, and that because he was released to parole prior to that day, the Act did not apply to him. The trial court found that such a construction of the word "paroled" would limit the statute's operation and would be destructive of its intent. The court found it was the intent of the legislature to include all individuals currently paroled in the database.
The Supreme Court reversed. The Court held that the plain wording of the statute indicates the word "paroled" refers to an individual who is "released to parole" on or after July 1, 2000.
The Supreme Court reversed. The Court held that the plain wording of the statute indicates the word "paroled" refers to an individual who is "released to parole" on or after July 1, 2000.
Monday, January 29, 2007
South Carolina House of Representatives considers banning citizens from discussing ethics complaints
South Carolina citizens who file an ethics complaint against a legislator would be banned from discussing, or even mentioning, the complaint publicly if a bill under debate in the state House becomes law. Here is the proposed language:
All investigations, inquiries, records, proceedings, and accompanying documents related to a complaint are confidential unless the respondent requests, in writing, to waive confidentiality or the ethics committee renders a public opinion. A person connected with a complaint before the ethics committee shall not disclose the existence of the complaint and any related information and proceedings nor discuss any related testimony or evidence except to persons directly involved, and then only to the extent as necessary for the proper disposition of the matter.
Perhaps the legislators need to take a look at the First Amendment or maybe Article II of the State Declaration of Rights:
The General Assembly shall make no law respecting an establishment of religion or prohibiting the free exercise thereof, or abridging the freedom of speech or of the press; or the right of the people peaceably to assemble and to petition the government or any department thereof for a redress of grievances.
All investigations, inquiries, records, proceedings, and accompanying documents related to a complaint are confidential unless the respondent requests, in writing, to waive confidentiality or the ethics committee renders a public opinion. A person connected with a complaint before the ethics committee shall not disclose the existence of the complaint and any related information and proceedings nor discuss any related testimony or evidence except to persons directly involved, and then only to the extent as necessary for the proper disposition of the matter.
Perhaps the legislators need to take a look at the First Amendment or maybe Article II of the State Declaration of Rights:
The General Assembly shall make no law respecting an establishment of religion or prohibiting the free exercise thereof, or abridging the freedom of speech or of the press; or the right of the people peaceably to assemble and to petition the government or any department thereof for a redress of grievances.
Universities Adjust to State Affirmative Action Bans
Over at Findlaw.com, Michael Dorf has an essay up dealing with state bans on discrimination/affirmative action and efforts of law schools and other institutions to comply or maneuver around the bans. (Hat tip How Appealing).
Friday, January 26, 2007
Fourth Circuit holds in ADA case that remedial decree may not be imposed on City of Richmond
In Bacon v. City of Richmond, the Richmond School Board agreed in a settlement agreement to brings its schools into compliance with the ADA. The Settlement Agreement, however, provided that the School Board's obligations were "contingent on" the School Board "receiving funding from the City of Richmond." The City objected because the Board was vested with authority over the schools and thus the ADA violations were not the fault of the City. The obligation placed on the City in the Settlement Agreement brought it into the case, with the district court ultimately ordering the City to "ensure that the Richmond City Public Schools become ADA-compliant" within five years.
The Fourth Circuit overturned the district court's order. According to the panel, the district court's remedial order undermines the basic precept of law that remedies may be imposed only on responsible parties. Injunctive relief may not issue where, as here, the City played no part in depriving any plaintiff of the rights guaranteed by the ADA.
The Fourth Circuit overturned the district court's order. According to the panel, the district court's remedial order undermines the basic precept of law that remedies may be imposed only on responsible parties. Injunctive relief may not issue where, as here, the City played no part in depriving any plaintiff of the rights guaranteed by the ADA.
Wednesday, January 24, 2007
SCOTUS strikes down California sentencing law
In Cunningham v. California, SCOTUS determined that California's "determinate sentencing law" is unconstitutional inasmuch as it permits a judge and not a jury to find facts leading to higher sentences. According to the majority, the Federal Constitution's jury-trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant.
S.C. Supreme Court holds that criminal defendant has the burden of proving duress
In State v. New, New argued that another inmate had threatened him and therefore he was under duress when he participated in the taking of hostages at a correctional facility. He argued that the state had the burden of disproving his duress defense just like it would a self-defense assertion. The trial court and the state supreme court disagreed. According to the court, duress excuses the crime but does not negate any element of the offense, whereas self-defense goes to an element of the crime. Because "the existence of duress normally does not controvert any of the elements of the offense itself," the burden remains on the defendant.
Tuesday, January 23, 2007
S.C. Supreme Court offers guidance on when a matter is stayed on appeal
In Arnal v. Fraser, the Supreme Court offers guidance on when a matter is stayed under the appellate court rules. Rule 225(a), SCACR, in governing matters which are stayed while on appeal, provides:
As a general rule, the service of a notice of appeal in a civil matter acts to automatically stay matters decided in the order on appeal, and to automatically stay the relief ordered in the appealed order, judgment, or decree. This automatic stay continues in effect for the duration of the appeal unless lifted by order of the trial judge, appellate court, or judge or justice thereof. The lower court retains jurisdiction over matters not affected by the appeal including the authority to enforce any matters not stayed by the appeal.
This case dealt with several orders of the family court that Father argued were void because the family court was without jurisdiction. Father's first argument dealt with enforcement of a order requiring him to make payments to Mother. Although this order was appealed, the Supreme Court pointed out that family court orders regarding a child or requiring payment of support for a spouse or child's are exceptions to the automatic stay. Rule 225(b)(6), SCACR. Hence, the was jurisdiction in the family court.
The next issue dealt with medical expenses for the child. The issue of apportioning medical expenses from the final divorce order was on appeal, but Father asked the family court to determine whether the medical expenses previously submitted by Mother were subject to the provisions of the final order. This issue could be addressed by the family court because the court was not modifying the order on appeal.
Father next argued that the family court lacked jurisdiction to order him to pay certain educational expenses. The amended final order on appeal did not address educational expenses, thus these matters were not affected by the appeal, and the family court had jurisdiction to issue its orders.
Finally, Father argued that the family court erred in terminating his overnight visitation for failing to meet the videotaping requirements mandated by the family court. The final divorce order on appeal set very specific parameters for Father's visitation. Thus, the family court did not have jurisdiction to modify terms of visitation because the appellate court would have exclusive jurisdiction over the matter on appeal.
As a general rule, the service of a notice of appeal in a civil matter acts to automatically stay matters decided in the order on appeal, and to automatically stay the relief ordered in the appealed order, judgment, or decree. This automatic stay continues in effect for the duration of the appeal unless lifted by order of the trial judge, appellate court, or judge or justice thereof. The lower court retains jurisdiction over matters not affected by the appeal including the authority to enforce any matters not stayed by the appeal.
This case dealt with several orders of the family court that Father argued were void because the family court was without jurisdiction. Father's first argument dealt with enforcement of a order requiring him to make payments to Mother. Although this order was appealed, the Supreme Court pointed out that family court orders regarding a child or requiring payment of support for a spouse or child's are exceptions to the automatic stay. Rule 225(b)(6), SCACR. Hence, the was jurisdiction in the family court.
The next issue dealt with medical expenses for the child. The issue of apportioning medical expenses from the final divorce order was on appeal, but Father asked the family court to determine whether the medical expenses previously submitted by Mother were subject to the provisions of the final order. This issue could be addressed by the family court because the court was not modifying the order on appeal.
Father next argued that the family court lacked jurisdiction to order him to pay certain educational expenses. The amended final order on appeal did not address educational expenses, thus these matters were not affected by the appeal, and the family court had jurisdiction to issue its orders.
Finally, Father argued that the family court erred in terminating his overnight visitation for failing to meet the videotaping requirements mandated by the family court. The final divorce order on appeal set very specific parameters for Father's visitation. Thus, the family court did not have jurisdiction to modify terms of visitation because the appellate court would have exclusive jurisdiction over the matter on appeal.
S.C. Supreme Court issues opinion on unauthorized practice of law
In Franklin v. Chavis, an insurance salesman drafted a will, power of attorney, and Renunciation of Administration on behalf of an elderly woman. Not surprisingly, the documents gave salesman a hefty cut of the estate. Regarding the will and power of attorney, the court held that the salesman engaged in the unauthorized practice of law. Key to the court's finding was that the salesman acted as more than a scrivener when he filled out these computer generated forms.
According to the Court: "There is no evidence Ms. Weiss reviewed the will once it was typed. The will was not typed in her presence and although respondent relates the details of what Ms. Weiss told him to do, there is no indication he contemporaneously recorded her instructions and then simply transferred the information to the form."
The completion of the Renunciation of Administration was not the practice of law. This was a probate court form with handwritten information filled in the blanks. While these forms do have legal implications, the Court described them as "straight-forward" and "provided to the public."
According to the Court: "There is no evidence Ms. Weiss reviewed the will once it was typed. The will was not typed in her presence and although respondent relates the details of what Ms. Weiss told him to do, there is no indication he contemporaneously recorded her instructions and then simply transferred the information to the form."
The completion of the Renunciation of Administration was not the practice of law. This was a probate court form with handwritten information filled in the blanks. While these forms do have legal implications, the Court described them as "straight-forward" and "provided to the public."
Monday, January 22, 2007
Fourth Circuit affirms CMS' denial of West Virginia Medicaid amendment
In STATE OF WEST VIRGINIA v. THOMPSON, West Virginia appealed a decision by the Secretary of Health and Human Services denying approval of an amendment to West Virginia's Medicaid Plan. Federal law requires that states participating in Medicaid recoup some costs by recovering funds from the estates of recipients of Medicaid-funded long-term care. It also requires that states establish procedures to waive recoveries that "would work an undue hardship as determined on the basis of criteria established by the Secretary." West Virginia sought to exempt more than $50,000 of every homestead from recovery, through an exemption for home equity up to the statewide mean appraised value of a home. The Secretary disapproved this exemption as too broad to constitute an "undue hardship" exception.
Giving the agency interpretation Chevron deference, the Fourth Circuit affirmed. The panel found nothing arbitrary or capricious about the Secretary's conclusion that West Virginia's waiver was so broad that it would serve not as an exception to estate recovery for hardship cases but as a means of unraveling the estate recovery mandate itself: "What has been represented as a hardship exemption for 'homesteads of modest value' would apply to every homestead, regardless of value, and without any means-testing of the recipients. It was not a clear error of judgment for the Secretary to conclude that a provision this broad sweeps beyond cases of 'undue hardship' and sets threshold levels for the market value of a homestead of modest value so as to negate the intent of the estate recovery program that Congress enacted."
Giving the agency interpretation Chevron deference, the Fourth Circuit affirmed. The panel found nothing arbitrary or capricious about the Secretary's conclusion that West Virginia's waiver was so broad that it would serve not as an exception to estate recovery for hardship cases but as a means of unraveling the estate recovery mandate itself: "What has been represented as a hardship exemption for 'homesteads of modest value' would apply to every homestead, regardless of value, and without any means-testing of the recipients. It was not a clear error of judgment for the Secretary to conclude that a provision this broad sweeps beyond cases of 'undue hardship' and sets threshold levels for the market value of a homestead of modest value so as to negate the intent of the estate recovery program that Congress enacted."
Friday, January 19, 2007
Fourth Circuit vacates upward sentencing variance
In United States v. Tucker, Tucker pled guilty to embezzling funds from her employer. The advisory guidelines range was 24 to 30 months' imprisonment and three to five years' supervised release. The district judge determined that an upward variance was appropriate because she had been convicted of embezzlement before and was using stolen money to pay restitution for previous convictions. The district court ultimately imposed a variance sentence of 144 months, followed by a five year term of supervised release during which Tucker would pay restitution of $77,223.83 for this offense. The sentence also requiredTucker to participate in a mental health treatment program and not to obtain employment in which she would have access to her employer's funds during the five year period of supervised release.
The Fourth Circuit vacated the sentence. Although Tucker's risk of recidivism could justify a variance sentence, the district court did not adequately justify the extent of the variance imposed.
The Fourth Circuit vacated the sentence. Although Tucker's risk of recidivism could justify a variance sentence, the district court did not adequately justify the extent of the variance imposed.
Thursday, January 18, 2007
Court of Appeals holds new trial should have been granted because of juror misconduct
In Church of the Holy Cross v. Orkin, the Court of Appeals reversed a trial court's decision denying a mistrial based on juror misconduct. The case centered on whether Orkin breached a contract with the church by allowing a termite infestation. The offending conduct of the juror was as follows:
the alleged misconduct, which the alternate juror later confirmed under oath, consisted of the offending juror "early in the trial . . . question[ing] aloud the instructions that she was not to talk about the case . . . because everybody knew what was going on"; commenting to the other jurors "that everyone knew that the historic people 'have money' and are simply trying to get someone else to 'pay their bills'"and "that 'old buildings fall down' simply because of age"; telling the other jurors "that she did not know why she had to hear both sides of the case and that she had discussed it with her mother who reaffirmed that the historic people have money and should clean up their own mess" remarking to the other jurors that she had talked with a painter friend who told her that walls could collapse due to hidden termite damage; declaring to the other jurors "that they should tear down the church and bring in a double wide";
The prohibition against jurors discussing a case until the trial judge submits it to them for deliberation and decision involves a matter of fundamental fairness. The prohibition is meant to insure that jurors remain impartial throughout the entire trial and that they hear both sides of a controversy before making up their minds and rendering a verdict. Based on the misconduct, fundamental fairness was denied and thus a new trial should have been granted.
the alleged misconduct, which the alternate juror later confirmed under oath, consisted of the offending juror "early in the trial . . . question[ing] aloud the instructions that she was not to talk about the case . . . because everybody knew what was going on"; commenting to the other jurors "that everyone knew that the historic people 'have money' and are simply trying to get someone else to 'pay their bills'"and "that 'old buildings fall down' simply because of age"; telling the other jurors "that she did not know why she had to hear both sides of the case and that she had discussed it with her mother who reaffirmed that the historic people have money and should clean up their own mess" remarking to the other jurors that she had talked with a painter friend who told her that walls could collapse due to hidden termite damage; declaring to the other jurors "that they should tear down the church and bring in a double wide";
The prohibition against jurors discussing a case until the trial judge submits it to them for deliberation and decision involves a matter of fundamental fairness. The prohibition is meant to insure that jurors remain impartial throughout the entire trial and that they hear both sides of a controversy before making up their minds and rendering a verdict. Based on the misconduct, fundamental fairness was denied and thus a new trial should have been granted.
S.C. Court of Appeals clarifies types of expert testimony subject to the Jones factors
In State v. White, the Court of Appeals considered whether the trial court erred in admitting the testimony of State's expert witness, a dog handler, without establishing the underlying scientific reliability of dog tracking. In considering the admissibility of scientific and technical evidence, South Carolina courts look to the Jones factors: (1) the publications and peer review of the technique; (2) prior application of the method to the type of evidence involved in the case; (3) the quality control procedures used to ensure reliability; and (4) the consistency of the method with recognized scientific laws and procedures.
In this case, the court of appeals emphasized that not all expert testimony is subject to a Jones analysis. A trial court's threshold inquiry, according to the court, is whether the expert's methods and techniques even fall within Jones' central purpose: to prevent the aura of infallibility which surrounds "scientific hypotheses not capable of proof or disproof in court and not even generally accepted outside the courtroom" from misleading the fact finders. The dog handling evidence was based on "specialized knowledge" and thus a Jones analysis was not warranted because "scientific techniques" are inapplicable to the type of evidence offered.
In this case, the court of appeals emphasized that not all expert testimony is subject to a Jones analysis. A trial court's threshold inquiry, according to the court, is whether the expert's methods and techniques even fall within Jones' central purpose: to prevent the aura of infallibility which surrounds "scientific hypotheses not capable of proof or disproof in court and not even generally accepted outside the courtroom" from misleading the fact finders. The dog handling evidence was based on "specialized knowledge" and thus a Jones analysis was not warranted because "scientific techniques" are inapplicable to the type of evidence offered.
Wednesday, January 17, 2007
Fourth Circuit reverses previous case law on continuing violation doctrine
In Gilliam v. Department of Juvenile Justice, Gilliam brought a Title VII action alleging that she was subjected to a hostile work environment because of her race. Summary judgment was granted in favor of the DJJ in the district court. The main issue on appeal was whether the district court erred in ignoring the entire scope of the hostile work environment claim, including behavior alleged outside the statutory time period, in accessing the timeliness of Gilliam's claim.
At base, Gilliam argued that National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002) overruled Fourth Circuit case law holding that in order to pursue a continuing violation theory, at least one act occurring within the statutory period must--when viewed in isolation--be based on race. The panel agreed with Gilliam:
Contrary to the SCDJJ's contention, Morgan explained that a hostile work environment claim normally "occurs over a series of days or perhaps years" and certain behavior may not alone constitute acts of discrimination under Title VII. Under Morgan, an incident falling within the applicable limitations period need only, in order for the continuing violation doctrine to apply, have contributed to the hostile work environment. The district court thus erred in assessing the August 31 Acts in isolation, seeking to determine if any of them, standing alone, was discriminatory in nature. Under the continuing violation doctrine, none of the August 31 Acts had to be discriminatory in and of itself. It was only necessary for one of these acts to contribute to the behavior relating to the incidents thatoccurred prior to the limitations period.
The panel, however, upheld the grant of summary judgment because it reasoned that regardless of whether the district court properly considered the incidents that occurred prior to the limitations period, Gilliam had not shown that her alleged harassment was based upon race.
This cases was argued by me as amicus curiae for appellant.
At base, Gilliam argued that National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002) overruled Fourth Circuit case law holding that in order to pursue a continuing violation theory, at least one act occurring within the statutory period must--when viewed in isolation--be based on race. The panel agreed with Gilliam:
Contrary to the SCDJJ's contention, Morgan explained that a hostile work environment claim normally "occurs over a series of days or perhaps years" and certain behavior may not alone constitute acts of discrimination under Title VII. Under Morgan, an incident falling within the applicable limitations period need only, in order for the continuing violation doctrine to apply, have contributed to the hostile work environment. The district court thus erred in assessing the August 31 Acts in isolation, seeking to determine if any of them, standing alone, was discriminatory in nature. Under the continuing violation doctrine, none of the August 31 Acts had to be discriminatory in and of itself. It was only necessary for one of these acts to contribute to the behavior relating to the incidents thatoccurred prior to the limitations period.
The panel, however, upheld the grant of summary judgment because it reasoned that regardless of whether the district court properly considered the incidents that occurred prior to the limitations period, Gilliam had not shown that her alleged harassment was based upon race.
This cases was argued by me as amicus curiae for appellant.
Tuesday, January 16, 2007
Paul Clement Stays Cool in High Court Hot Seat
Findlaw.com has this article up on U.S. Solicitor General Paul Clement. Here is a taste:
Nimble on his feet and smoothly conversational with the justices, Clement has won three-fourths of the 38 cases he has argued since joining the U.S. Department of Justice in 2001 (some are still pending). He argues without notes, but can rattle off the most obscure citations from memory -- even when defending a 1,400-page lower court decision, as he did in the campaign reform case of McConnell v. FEC. And he has a knack for offering the Court a clear, if narrow, path toward seeing a case his way. "I am so glad he is solicitor general, because he makes my job easier," Justice Antonin Scalia said during a Georgetown Supreme Court Institute tribute for Clement in April, adding that among his fellow justices, Clement was the "sentimental favorite" for replacing Theodore Olson as SG in 2005.
Nimble on his feet and smoothly conversational with the justices, Clement has won three-fourths of the 38 cases he has argued since joining the U.S. Department of Justice in 2001 (some are still pending). He argues without notes, but can rattle off the most obscure citations from memory -- even when defending a 1,400-page lower court decision, as he did in the campaign reform case of McConnell v. FEC. And he has a knack for offering the Court a clear, if narrow, path toward seeing a case his way. "I am so glad he is solicitor general, because he makes my job easier," Justice Antonin Scalia said during a Georgetown Supreme Court Institute tribute for Clement in April, adding that among his fellow justices, Clement was the "sentimental favorite" for replacing Theodore Olson as SG in 2005.
Monday, January 15, 2007
Interview with Chief Justice Roberts
Jeffrey Rosen has this interview with the Chief in this month's Atlantic Monthly. (Hat tip How Appealing). Here is a taste:
Despite his concern about separate opinions, Roberts was proud of his relative success in encouraging unanimity, especially in less visible cases. He seemed especially frustrated, therefore, by the media's focus on the number of high-profile 5–4 decisions and the shifting coalitions that had determined them. "There was a question from one of these [tour] groups that come in here: 'How do you decide who's going to be the swing vote?'" Roberts laughed and shook his head. "I don't know, we rotate. That has to undermine--that's a steady wasting away of the notion of the rule of law, a personalization of it."
Despite his concern about separate opinions, Roberts was proud of his relative success in encouraging unanimity, especially in less visible cases. He seemed especially frustrated, therefore, by the media's focus on the number of high-profile 5–4 decisions and the shifting coalitions that had determined them. "There was a question from one of these [tour] groups that come in here: 'How do you decide who's going to be the swing vote?'" Roberts laughed and shook his head. "I don't know, we rotate. That has to undermine--that's a steady wasting away of the notion of the rule of law, a personalization of it."
Friday, January 12, 2007
Fourth Circuit declines to suppress evidence from password protected computer files
In United States v. Buckner, Buckner appealed from an order denying his motion to suppress evidence gathered from password-protected files on the harddrive of a computer police seized from his home. The officers seized and searched the computer, without a warrant, on the basis of oral consent granted by Buckner's wife, Michelle. Buckner argued that although Michelle's consent sufficed to give the officers permission to search the computer itself, her consent could not extend to his password-protected files. The Fourth Circuit affirmed the ruling of the lower court because Michelle did have apparent authority to consent to the search of these files.
According to the panel, the Government need not establish that Michelle had actual authority to consent to a search of Buckner' s password protected files. It is sufficient that Michelle had apparent authority to consent to the searched issue. That is, the facts available to the officer at the moment warrant a person of reasonable caution in the belief that the consenting party had authority.
According to the panel, the Government need not establish that Michelle had actual authority to consent to a search of Buckner' s password protected files. It is sufficient that Michelle had apparent authority to consent to the searched issue. That is, the facts available to the officer at the moment warrant a person of reasonable caution in the belief that the consenting party had authority.
Fourth Circuit holds that domestic partners are not in employer-employee relationship under FLSA
In Steelman v. Hirch, the parties were romantic partners who exchanged vows, lived together, and worked side by side in a dog-grooming business known as "Hair of the Dog" in Asheville, North Carolina. They supported themselves from the business' proceeds. The bliss between the two women soon ended and a lawsuit was filed. Steelman sought an ownership share in Hair of the Dog and compensation for work that she alleges was performed in reliance on Hirsch's promises of additional compensation, in addition to or in lieu of damages under the Fair Labor Standards Act (FLSA) and the North Carolina Wage and Hour Act. The district court granted summary judgment to the defendant on the sole federal cause of action--the FLSA claim-- and dismissed the state law claims without prejudice after it declined to exercise supplemental jurisdiction. The Fourth Circuit affirmed.
According to the panel, the plaintiff could not be adjudged an "employee" for purposes of the FLSA . The intended lifetime partnership she described was not "the bargained-for exchange of labor for mutual economic gain that occurs in a true employer-employee relationship." The couple saw their work together as a way to improve an economic future that they intended to share in perpetuity, rather than as a transfer of one individual's assets to another in exchange for labor. Hence, without an employer-employee relationship, FLSA did not apply.
According to the panel, the plaintiff could not be adjudged an "employee" for purposes of the FLSA . The intended lifetime partnership she described was not "the bargained-for exchange of labor for mutual economic gain that occurs in a true employer-employee relationship." The couple saw their work together as a way to improve an economic future that they intended to share in perpetuity, rather than as a transfer of one individual's assets to another in exchange for labor. Hence, without an employer-employee relationship, FLSA did not apply.
Thursday, January 11, 2007
S.C. Supreme Court holds that evidence of prison conditions are inadmissible in sentencing phase of trial
In State v. Burkhart, during the sentencing phase of trial, Burkhart objected to testimony by State's witness James Sligh, Director of Inmate Classification for the Department of Corrections, regarding the privileges available to an inmate who receives a sentence of life without parole. These privileges include access to the yard, work, education, meals, canteen, phone, library, recreation, mail, television, and outside visitors. The Court held that this testimony violated the long-standing rule that evidence in the sentencing phase of a capital trial must be relevant to the character of the defendant or the circumstances of the crime. However, the Court did note that evidence regarding a defendant's adaptability to prison life is clearly admissible, just not general testimony about prison conditions. The sentence was vacated and remanded for resentencing.
S.C. Supreme Court holds that DOT Commissioners must resign
In Sloan v. Hardee, several DOT Commissioners served their appointed four year terms and were reelected to serve second terms. Sloan brought suit arguing that the reelection violated statutory provisions prohibiting Commissioners from serving more than one consecutive term. The Commissioners argued that the term "consecutive," permits a commissioner to serve one term, consecutive to a first term such that the commissioners may actually serve two successive terms. The Court rejected this interpretation, holding that "consecutive" means "successive; succeeding one another in regular order; to follow in uninterrupted succession." Hence, the commissioners were serving consecutive terms in violation of the statute.
Friday, January 05, 2007
SCOTUS to hear dormant commerce clause case
Here is a great article on United Haulers v. Oneida-Herkimer Solid Waste Management Authority, which SCOTUS will take up next week. (Hat tip How Appealing).
FOIA documents reveal Rehnquist's battle with prescription painkillers
This is from CNN.
Also detailed in the declassified file was Rehnquist's 1981 hospital stay for treatment of back pain and his dependence on powerful prescription pain-relief medication.
The FBI investigated his dependence on Placidyl, which Rehnquist had taken for at least 10 years, according to a summary of a 1970 medical examination.
When Rehnquist checked into a hospital in 1981 for a weeklong stay, doctors stopped administering the drug, causing what a hospital spokesman at the time said was a "disturbance in mental clarity."
The FBI file, citing one of his physicians, said Rehnquist experienced withdrawal symptoms that included trying to escape the facility and discerning changes in the patterns on the hospital curtains. The justice also thought he heard voices outside his room discussing various plots against him.
The doctor said Placidyl is a highly toxic drug and that she could not understand why anyone would prescribe it, especially for long periods.
Also detailed in the declassified file was Rehnquist's 1981 hospital stay for treatment of back pain and his dependence on powerful prescription pain-relief medication.
The FBI investigated his dependence on Placidyl, which Rehnquist had taken for at least 10 years, according to a summary of a 1970 medical examination.
When Rehnquist checked into a hospital in 1981 for a weeklong stay, doctors stopped administering the drug, causing what a hospital spokesman at the time said was a "disturbance in mental clarity."
The FBI file, citing one of his physicians, said Rehnquist experienced withdrawal symptoms that included trying to escape the facility and discerning changes in the patterns on the hospital curtains. The justice also thought he heard voices outside his room discussing various plots against him.
The doctor said Placidyl is a highly toxic drug and that she could not understand why anyone would prescribe it, especially for long periods.
Thursday, January 04, 2007
ACLU vows to sue Oconee County Council for opening public meetings with prayer
From WYFF: "Were going to take this as far as we need to," ACLU attorney Neil Caesar said. "Oconee county council has decided over the past year they were going to be the poster child of thumbing their nose at the law and that's unfair."
Judge Won't Stop Greenville Smoking Ban
Judge John Few on Tuesday declined to honor a request by a group of restaurant and bar owners who want enforcement of Greenville's new ban on smoking in public places to be delayed while they challenge it in court. Judge John Few refused to issue an injunction, but said he would rule on the merit of the business owner's case within the next 10 days.
MSNBC has this news article.
MSNBC has this news article.
Tuesday, January 02, 2007
Judicial pay creating a constitutional crisis???
This is from CNN. I know Roberts is a smart man, but how must this sound to Joe Six-Pack? $165,000 per year is too little for a federal judge???
Pay for federal judges is so inadequate that it threatens to undermine the judiciary's independence, Chief Justice John Roberts says in a year-end report critical of Congress.
Roberts said the judiciary will not properly serve its constitutional role if it is restricted to people so wealthy that they can afford to be indifferent to the level of judicial compensation, or to people for whom the judicial salary represents a pay increase.
Issuing an eight-page message devoted exclusively to salaries, Roberts says the 678 full-time U.S. District Court judges, the backbone of the federal judiciary, are paid about half that of deans and senior law professors at top schools.
In the 1950s, 65 percent of U.S. District Court judges came from the practicing bar and 35 percent came from the public sector. Today the situation is reversed, Roberts said, with 60 percent from the public sector and less than 40 percent from private practice.
Federal district court judges are paid $165,200 annually; appeals court judges make $175,100; associate justices of the Supreme Court earn $203,000; the chief justice gets $212,100.
Pay for federal judges is so inadequate that it threatens to undermine the judiciary's independence, Chief Justice John Roberts says in a year-end report critical of Congress.
Roberts said the judiciary will not properly serve its constitutional role if it is restricted to people so wealthy that they can afford to be indifferent to the level of judicial compensation, or to people for whom the judicial salary represents a pay increase.
Issuing an eight-page message devoted exclusively to salaries, Roberts says the 678 full-time U.S. District Court judges, the backbone of the federal judiciary, are paid about half that of deans and senior law professors at top schools.
In the 1950s, 65 percent of U.S. District Court judges came from the practicing bar and 35 percent came from the public sector. Today the situation is reversed, Roberts said, with 60 percent from the public sector and less than 40 percent from private practice.
Federal district court judges are paid $165,200 annually; appeals court judges make $175,100; associate justices of the Supreme Court earn $203,000; the chief justice gets $212,100.
Friday, December 29, 2006
South Carolina County Approves Revoking Licenses to Businesses That Hire Illegals
From Fox News:
Beaufort County Council unanimously approved the local law, dubbed the "Lawful Employment Ordinance," 9-0, following a public hearing. It is set to take effect Jan. 1, 2008.
Under the ordinance, people who apply for a county business license must sign a form verifying, under penalty of perjury, they do not knowingly employ or plan to hire an illegal immigrant. Licensed companies would be subject to county audits of their employees' documentation.
Beaufort County Council unanimously approved the local law, dubbed the "Lawful Employment Ordinance," 9-0, following a public hearing. It is set to take effect Jan. 1, 2008.
Under the ordinance, people who apply for a county business license must sign a form verifying, under penalty of perjury, they do not knowingly employ or plan to hire an illegal immigrant. Licensed companies would be subject to county audits of their employees' documentation.
Thursday, December 28, 2006
Fourth Circuit holds Bankruptcy Code's anti-discrimination provision does not apply to home loan guaranty entitlements
In AYES v. U. S. DEP'T OF VETERANS AFFAIRS, Ayes and others filed a class action complaint against the VA, alleging that the VA violated 11 U.S.C.A. 525, the anti-discrimination provisionof thee Bankruptcy Code, by refusing to fully restore veteran home-loan guaranty entitlements to the class solely because of their previous discharges in bankruptcy. The district court granted the VA's motion to dismiss and the Fourth Circuit affirmed.
The panel held that Section 525(a) prohibits a governmental unit from denying a "license, permit, charter, franchise, or other similar grant"solely because an individual has filed for or received a discharge in bankruptcy, but that the veteran guaranty entitlement was not a "license," "permit," "charter,"or "franchise."
The panel held that Section 525(a) prohibits a governmental unit from denying a "license, permit, charter, franchise, or other similar grant"solely because an individual has filed for or received a discharge in bankruptcy, but that the veteran guaranty entitlement was not a "license," "permit," "charter,"or "franchise."
"West Virginia" defense does not fly in S.C. Courts
In State v. Claypoole, Theresa Claypoole was convicted of contributing to the delinquency of a minor and accessory before the fact to criminal sexual conduct with a minor because she permitted her 49 year-old husband to have sex with her 13 year-old daughter. Claypoole raised the "West Virginia defense" when arguing that the trial court should have granted her motion for a directed verdict:
The Court of Appeals affirmed the conviction. (Hat tip to Langdon Cheves)
Regarding the propriety of Claypoole's forty-nine-year-old husband sleeping with her thirteen-year-old daughter, Claypoole stated she did not know why everyone made such a big deal out of them having sex because in West Virginia, where she was raised, the older men often taught young girls about sex to prepare them for their wedding nights.
The Court of Appeals affirmed the conviction. (Hat tip to Langdon Cheves)
Wednesday, December 27, 2006
Fourth Circuit upholds dismissal under forum-selection clause
In SUCAMPO PHARMACEUTICALS v. ASTELLAS PHARMA, the Fourth Circuit considered the dismissal of an action based on the forum selection clause which called for disputes to be litigated in Japan. The clause appeared in the Basic License Agreement and provided: "any dispute in relation to this agreement or any agreement incidental hereto" be brought in Japan.
Sucampo argued that the dispute was not governed by the clause because the dispute arose under a Safety Agreement, which was not incidental to the Amended Basic License Agreement containing the forum selection clause. The Fourth Circuit rejected this argument under the general principles of contract interpretation. The Safety Agreement explicitly noted that it was executed "under the Basic Agreement," with a term concurrent with the Basic Agreement. The Safety Agreement had no independent validity a part from the continued validity of the Basic Agreement. Moreover, the panel noted that there was no reasonable reading of the word "incidental" in the forum-selection clause that would exclude the Safety Agreement from its coverage. The dismissal was affirmed
Sucampo argued that the dispute was not governed by the clause because the dispute arose under a Safety Agreement, which was not incidental to the Amended Basic License Agreement containing the forum selection clause. The Fourth Circuit rejected this argument under the general principles of contract interpretation. The Safety Agreement explicitly noted that it was executed "under the Basic Agreement," with a term concurrent with the Basic Agreement. The Safety Agreement had no independent validity a part from the continued validity of the Basic Agreement. Moreover, the panel noted that there was no reasonable reading of the word "incidental" in the forum-selection clause that would exclude the Safety Agreement from its coverage. The dismissal was affirmed
Friday, December 22, 2006
S.C. Supreme Court holds that Crawford v. Washington does not apply to a probation revocation proceeding
The United States Supreme Court has banned out-of-court testimonial statements from criminal trials unless the witness is unavailable to testify, and the defendant had a prior opportunity to cross-examine the witness. See Crawford v. Washington. In State v. Pauling, Pauling argued that the State violated Crawford v. Washington at his probation revocation hearing when it improperly relied on the arrest warrants and affidavits of police officers and investigators related to charges on which he had yet to be tried.
Concluding that a revocation proceeding is not a criminal prosecution, the Court of Appeals held that Sixth Amendment rights forming the basis of Crawford v. Washington are not implicated. A person convicted of a crime is still restrained within the confines of his probation, he does not enjoy the same unfettered constitutional privileges available to those not so confined.
Concluding that a revocation proceeding is not a criminal prosecution, the Court of Appeals held that Sixth Amendment rights forming the basis of Crawford v. Washington are not implicated. A person convicted of a crime is still restrained within the confines of his probation, he does not enjoy the same unfettered constitutional privileges available to those not so confined.
Thursday, December 21, 2006
South Carolina Common Sense Consumption Act
The General Assembly is currently working on SC HB 3046: Common Sense Consumption Act. At base, this bill is meant to stop the lawsuits based on folks eating Mickey D's and getting fat. According to the preamble:
Act to amend provide that a manufacturer, packer, distributor, carrier, holder, marketer, seller, or an association of one or more of these entities is not subject to civil liability in an action based on a person's purchase or consumption of food or nonalcoholic beverages when liability is based on weight gain, obesity, or a health condition associated with weight gain or obesity resulting from the person's long-term consumption of food or nonalcoholic beverages
Act to amend provide that a manufacturer, packer, distributor, carrier, holder, marketer, seller, or an association of one or more of these entities is not subject to civil liability in an action based on a person's purchase or consumption of food or nonalcoholic beverages when liability is based on weight gain, obesity, or a health condition associated with weight gain or obesity resulting from the person's long-term consumption of food or nonalcoholic beverages
Wednesday, December 20, 2006
S.C. Supreme Court affirms summary judgment in med mal case
In Jones v. Day, a mother died after child birth and her estate sued the hospital for medical malpractice. The estate argued that Defendants departed from the standard of medical care in failing to provide post-operative medical attention to the mother after she complained of severe abdominal pain. Summary judgment was granted because there was no admissible evidence suggesting that anyone responsible for the mother's care and treatment, physician or otherwise, was made aware of her abdominal pain and injuries. Affidavits and deposition testimony failed to establish that the mother complained to any hospital staff about abdominal pain.
Tuesday, December 19, 2006
Fourth Circuit issues sentencing guidelines opinion
In UNITED STATES v. GUYON, the Fourth Circuit considered a 2004 sentencing wherein the District Court sentenced Guyon to 180 months when the then mandatory Federal Sentencing Guidelines established a sentencing range of 140 to 175 months and permitted the district court to deviate from this range only if it found facts justifying a departure. Judicial finding of fact persuaded the District Court that an upward departure was appropriate. Guyon appealed, challenging his sentence under United States v. Booker, 543 U.S. 220 (2005).
The Fourth Circuit noted that the District Court could not have sentenced Guyon above 175 months without making the forbidden factual finding. Hence, but for the error, Guyon would have received a shorter sentence. The Court vacated and remanded for resentencing.
The Fourth Circuit noted that the District Court could not have sentenced Guyon above 175 months without making the forbidden factual finding. Hence, but for the error, Guyon would have received a shorter sentence. The Court vacated and remanded for resentencing.
Monday, December 18, 2006
Washington Post says that conservatives' grip on Fourth Circuit is in danger
According to the article:
A growing list of vacancies on the federal appeals court in Richmond is heightening concern among Republicans that one of the nation's most conservative and influential courts could soon come under moderate or even liberal control, Republicans and legal scholars say.
A growing list of vacancies on the federal appeals court in Richmond is heightening concern among Republicans that one of the nation's most conservative and influential courts could soon come under moderate or even liberal control, Republicans and legal scholars say.
Fourth Circuit holds Anderson School District Five violated First Amendment with fee-waiver rules regarding use of school property
In CHILD EVANGELISM v. ANDERSON SCHOOL DIST. FIVE, he Child Evangelism Fellowship of South Carolina ("CEF") challenged policies under which it was denied a fee waiver for religious club meetings that it sought to hold in the facilities of Anderson School District Five. CEF argued that the school district violated the First Amendment by permitting school officials to waive fees "as determined to be in the district's best interest." The district court concluded that this language was vague enough to allow school administrators to violate the First Amendment by treating speakers differently based upon their views, but found no constitutional problem because it concluded that the school district had not engaged in viewpoint discrimination.
The Fourth Circuit reversed, holding that the fee-waiver rules cannot be squared with the prohibition on unfettered discretion so essential to viewpoint neutrality under the First Amendment. The fee-waiver rules authorized administrators to waive usage fees "as determined to be in the district's best interest"--conveying, by its terms, an apparent carte blanche.
The Fourth Circuit reversed, holding that the fee-waiver rules cannot be squared with the prohibition on unfettered discretion so essential to viewpoint neutrality under the First Amendment. The fee-waiver rules authorized administrators to waive usage fees "as determined to be in the district's best interest"--conveying, by its terms, an apparent carte blanche.
Friday, December 15, 2006
Lawyer Provided Excellent Defense Despite Sleeping During Trial, Says Federal Judge
From Law.com:
Even though defense attorney Robert Koppelman snoozed on occasion during the racketeering trial of an Albanian gang member, he managed to provide effective assistance of counsel under the Sixth Amendment, according to a federal judge.
In fact, Koppelman did such an excellent job defending Ljusa Nuculovic, despite falling asleep several times during the 2005 trial, that Southern District of New York Judge Denise Cote felt Nuculovic was lucky to have him.
I can't wait till my reputation is such that I can sleep in court and my clients are lucky to have me!
Even though defense attorney Robert Koppelman snoozed on occasion during the racketeering trial of an Albanian gang member, he managed to provide effective assistance of counsel under the Sixth Amendment, according to a federal judge.
In fact, Koppelman did such an excellent job defending Ljusa Nuculovic, despite falling asleep several times during the 2005 trial, that Southern District of New York Judge Denise Cote felt Nuculovic was lucky to have him.
I can't wait till my reputation is such that I can sleep in court and my clients are lucky to have me!
S.C. Supreme Court issues respondeat superior opinion
In Armstrong v. Food Lion, Inc., three employees of Food Lion attacked Armstrong in the store and cut him with sharp objects. Armstrong sued Food Lion for torts of its employees. The trial court granted a directed verdict in favor of Food Lion and the Supreme Court affirmed. The Court held that the trial court appropriately granted a directed verdict because Armstrong failed to produce any evidence that the Food Lion employees were acting within the scope of their employment or in furtherance of Food Lion's business when they attacked Armstrong. They were acting to effect an independent purpose of their own.
Monday, December 11, 2006
Frat boys in Borat find no solace in court
From Yahoo news:
The South Carolina frat boys who filed suit over their depiction in Borat are just going to have to accept their place in history, because their scene in the hit film is here to stay.
After questioning just how inebriated the two plaintiffs were when they put their less-than-best face forward, a Los Angeles judge refused to order that 20th Century Fox excise their part from future theatrical and DVD copies of Borat: Cultural Learnings of America for Make Benefit Glorious Nation of Kazakhstan.
The South Carolina frat boys who filed suit over their depiction in Borat are just going to have to accept their place in history, because their scene in the hit film is here to stay.
After questioning just how inebriated the two plaintiffs were when they put their less-than-best face forward, a Los Angeles judge refused to order that 20th Century Fox excise their part from future theatrical and DVD copies of Borat: Cultural Learnings of America for Make Benefit Glorious Nation of Kazakhstan.
Light Blogging this week
I'll be out of town until Friday for depositions. Lots of updates when I return.
Friday, December 08, 2006
E-Discovery Rule Amendments
For those of you scurrying to understand and comply with the new E-Discovery Amendments to the Federal Rules, The Pocket Part has a nice overview here.
SCOTUS arguments on racial balancing in K-12 schools
SCOTUS Blog has a great post up on the arguments in Parents v. Seattle School District No. 1, in which the Court considers whether the goal of racial diversity in secondary and primary schools justifies the use of race in assigning students.
A good summary of the case (and links to the briefs) can be found here.
A good summary of the case (and links to the briefs) can be found here.
Thursday, December 07, 2006
SCOTUS holds that misdemeanor drug conviction cannot be treated as felony for deportation purposes
In Lopez v. Gonzales, The Supreme Court considered whether conduct made a felony under state law but a misdemeanor under the Controlled Substances Act is a "felony punishable under the Controlled Substances Act." 18 U. S. C. 924(c)(2). Despite this federal misdemeanor treatment of the conduct, the Government argued that possession's felonious character as a state crime can turn it into an aggravated felony under the INA. Had the Government's position carried the day, a noncitizen would be subject to mandatory deportation for a drug crime that, while a felony in the state where the crime was prosecuted, is only a misdemeanor under federal law.
In the 8-to-1 decision, the High Court held that a state offense constitutes a "felony punishable under the Controlled Substances Act" only if it proscribes conduct punishable as a felony under that federal law.
In the 8-to-1 decision, the High Court held that a state offense constitutes a "felony punishable under the Controlled Substances Act" only if it proscribes conduct punishable as a felony under that federal law.
Wednesday, December 06, 2006
Fourth Circuit strikes down sentencing provision of child porn statute
Congress enacted 18 U.S.C. 3553(b)(2) as part of the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act of 2003 ("PROTECT Act"). The PROTECT Act included certain mandatory sentencing provisions applicable to child and sexual offenses, including possession of child pornography. Those mandatory sentencing provisions are codified at 18 U.S.C. 3553(b)(2). In United States v. Hecht, the Fourth Circuit held that section 3553(b)(2) violates the rationale of Booker in the same way that section 3553(b)(1) violated the Sixth Amendment in Booker and that the section must be replaced with an advisory guidelines regime under which sentences are reviewed for reasonableness. The sentence was vacated and the Court remanded for resentencing
Fourth Circuit upholds conviction of SC pain management physician
In United States v. McIver, the Fourth Circuit ventured into the world of pain management. Dr. Ronald A. McIver, a pain management physician, was convicted for various counts of unlawful distribution of a controlled substance, unlawful distribution of a controlled substance resulting in death, and conspiracy to unlawfully distribute a controlled substance. Formerly he operated a medical clinic in Greenwood, South Carolina that specialized in treating chronic pain. During its investigation, the DEA discovered that Dr. McIver had prescribed massive quantities of oxycodone, Dilaudid, OxyContin, methadone, and morphine to his patients. Many of his patients included admitted drug addicts who traveled significant distances to see him, appeared without referrals, paid in cash, and sought specific drugs which were prescribed for them based on little or no physical examination.
On appeal, Dr. McIver raised several issues. The main issue argued was that the district court erred in telling the jury to consider the extent to which "any violation of professional norms you find to have been committed by the defendant interfered with his treatment of his patients and contributed to an over prescription and/or excessive dispensation of controlled substances."
Reading the charge as a whole, the Fourth Circuit rejected Dr. McIver's argument. The government had to prove that Dr. McIver used "his authority to prescribe controlled substances . . . not for treatment of a patient, but for the purpose of assisting another in the maintenance of a drug habit or" some other illegitimate purposes, such as his own "personal profit." The government further had to prove that the physician acted outside the scope of professional practice. Considering the proof requirements on the government, the Fourth Circuit approved the professional norms language and affirmed the conviction.
On appeal, Dr. McIver raised several issues. The main issue argued was that the district court erred in telling the jury to consider the extent to which "any violation of professional norms you find to have been committed by the defendant interfered with his treatment of his patients and contributed to an over prescription and/or excessive dispensation of controlled substances."
Reading the charge as a whole, the Fourth Circuit rejected Dr. McIver's argument. The government had to prove that Dr. McIver used "his authority to prescribe controlled substances . . . not for treatment of a patient, but for the purpose of assisting another in the maintenance of a drug habit or" some other illegitimate purposes, such as his own "personal profit." The government further had to prove that the physician acted outside the scope of professional practice. Considering the proof requirements on the government, the Fourth Circuit approved the professional norms language and affirmed the conviction.
Tuesday, December 05, 2006
Fourth Circuit Vacancies
The Richmond Times Dispatch has a good article on the Fourth Circuit's vacant seats. Nice background information on why we have so many open seats.
Above the Law also has a solid post up on the current state of the Fourth Circuit and possible replacements for Wilkins.
Above the Law also has a solid post up on the current state of the Fourth Circuit and possible replacements for Wilkins.
S.C. Supreme Court vacates sentence because of conditional guilty pleas
In In re Lee, a juvenile pled guilty to disturbing the schools (which is prohibited by statute) and conditioned the plea on his right to appeal the issue of whether the statute is unconstitutional. The Supreme Court held a conditional plea may not be accepted and vacated the sentence. Under South Carolina law, if an accused attempts to attach any condition or qualification to a plea, the trial court should direct a plea of not guilty.
Sunday, December 03, 2006
Who will be South Carolina's next federal judge?
In addition to Judge Henry Floyd and U.S. Attorney Reggie Lloyd I have also heard discussion about the following:
Steve Matthews
Bill Coates
Both would make fine judges.
Steve Matthews
Bill Coates
Both would make fine judges.
Friday, December 01, 2006
Review of Reclaiming the American Revolution
Many thanks to Soraya Rudofsky, editor of the last edition of the Harvard Law Review, for reviewing my book Reclaiming the American Revolution: The Kentucky and Virginia Resolutions and Their Legacy, in the most recent issue of Engage.
The review may be found here.
The review may be found here.
Possible Candidate to Take Judge Wilkins' Seat
It is very early in the process, with Chief Judge Wilkins just announcing that he will take senior status. However, I have heard that Judge Henry Floyd (federal district judge from SC) is a possibility. I have also heard that Reggie Lloyd, the United States Attorney for the District of South Carolina, who is supposedly close to Senator Graham might be in the running too.
Thursday, November 30, 2006
Chief Judge William Wilkins Takes Senior Status
My sources report that today Chief Judge William Wilkins sent a letter to President Bush announcing that he will take senior status effective July 1, 2007. Judge Karen Williams will become the next Chief Judge of the Fourth Circuit.
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.
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.
SCOTUS hears arguments on climate change
Yesterday the Supreme Court heard arguments on whether the EPA must regulate carbon dioxide emissions. SCOTUS Blog has this summary of the case.
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.
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
S.C. Supreme Court reverses PCR judge's grant of a new trial
In Bennett v. State, the PCR court granted Bennett a new trial based on ineffective assistance of counsel. Bennettt had pled guilty to first degree burglary on advice of his appointed public defender, who he alleged was unprepared for trial. He was sentenced to 18 years in prison. Prior to pleading, the public defender informed him he could get life if he went to trial and informed Bennett that a deal with the solicitor's office would likely result in 15 years. After pleading guilty, Bennett did not file an appeal. The PCR court found: (1) respondent had not knowingly and intelligently waived his right to a direct appeal; and (2) counsel was ineffective.
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.
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
South Carolina Supreme Court affirms punitive damages award 6.82 times greater than actual damages
James v. Horace Mann Ins. Co., was a bad faith action arising out of a dog bite. James' dog bit Geiger, requiring Geiger to suffer injuries. When James submitted the claim to his insurance company, the adjuster erroneously told him that under South Carolina law negligence must be proven before liability payments for animal bites could be paid. This was incorrect because SC has adopted strict liability for dog bites. In the Geiger trial, a jury returned a verdict against James and awarded Geiger $50,500 in damages. the Insurance Company paid $25,000 of the judgment and James paid the remaining $25,500.
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.
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
Changes in the Federal Rules of Appellate Procedure
Howard Bashman has a nice piece up on upcoming changes in FRAP. Here is a taste:
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.
The Real World According to Summer Associates
Law.com has up an interesting article on summer associates and exactly what they are looking for in a law firm. Quality of life seems to rate high:
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
Fourth Circuit issues Black Lung Benefits Opinion
In Perry v. Mynu Coal, Inc., the Fourth Circuit considered a claim for survivorship benefits under the Black Lung Act. The Court held that the Review Board erred by ignoring testimony that established an opacity of sufficient size in the lung that creates a conclusive presumption that complicated pneumoconiosis caused the miner's death. Hence, the panel vacated the Benefits Review Board's order denying benefits and remanded to the Board to enter an appropriate order awarding benefits.
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. "
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
S.C. Supreme Court issues opinion on excited utterances
In State v. Davis, the trial court admitted a hearsay statement from witness Hill that the shotgun Davis had offered to sell to Hicks had been used to murder the victim. The Court of Appeals affirmed the admission of the statement, but the Supreme Court reversed. According to the Court, no evidence was elicited by the State that Hill was still under the stress or excitement of the shooting. Therefore, the State did not meet its burden of establishing a foundation for the excited utterance. The Court also held that the evidence in the record did not support the conclusion that Hill had witnessed the shooting. Hence, the hearsay statement should have been excluded.
Monday, November 20, 2006
Fourth Circuit issues opinion on spam e-mails
In OMEGA WORLD TRAVEL v. MUMMAGRAPHICS, INC, the Fourth Circuit considered an alleged violation of the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 ("CAN-SPAM Act"). At base, Mummagraphics received cruise deal e-mails from Omega and Omega brought suit over the spamming under Federal and state law. The Fourth Circuit held that the CAN-SPAM Act preempts Mummagraphics' claims under Oklahoma's statutes and that Mummagraphics failed to allege the material inaccuracies or a pattern of failures to conform to opt-out requirements that is necessary to establish liability under the CAN-SPAM Act.
Tuesday, November 14, 2006
South Carolina Supreme Court holds that one assumes the risk of being hit by a puck when attending hockey games
In Hurst v. East Coast Hockey League, the circuit court granted summary judgment in favor of defendants when Hurst sued after being struck by a puck at a hockey game. The Supreme Court affirmed, holding that under the doctrine of implied primary assumption of risk, defendants' duty of care did not encompass the risk involved. The risk of a hockey spectator being struck by a flying puck is inherent to the game of hockey and is also a common, expected, and frequent risk of hockey.
Monday, November 13, 2006
Humiliated South Carolina Frat Boys Sue Movie Studio Over Drunken Appearance in 'Borat'
I've not seen Borat yet, but I hear it is a hoot. Anyway, a couple of USC frat boys are upset because of their appearance in the movie and are suing the producers--even though they signed releases. Essentially they argue they were too drunk to know what they were signing.
Thursday, November 09, 2006
Fourth Circuit issues non-mutual offensive collateral estoppel opinion
In Collins v. Pond Creek Mining Co., the Fourth Circuit considered non-mutual offensive collateral estoppel in a case where a widow sought Black Lung survivor benefits. Mrs. Collins sought to rely on the 1988 ALJ Decision to establish that Mr. Collins developed pneumoconiosis as a result of his thirty-six years in the coal mines. The panel noted that the issue of whether Mr. Collins developed and suffered from pneumoconiosisas a result of his work in the mines was actually determined in the 1988 proceeding, the determination was critical and necessary to the 1988 ALJ Decision, absent a finding of pneumoconiosis Mr. Collins could not have been awarded black lung benefits under the Act in 1988, the 1988 ALJ Decision is was valid, and Pond Creek had a full and fair opportunity to litigate the issue.
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.
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
S.C. Supreme Court issues new Appellate Court Rule permitting admission of foreign attorneys
Pursuant to Article V, section 4, of the South Carolina Constitution, the Court amended the South Carolina Appellate Court Rules by adding a new rule addressing the admission of foreign attorneys as Foreign Legal Consultants. The language of this new rule can be found here.
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