Thursday, October 30, 2008
The NY Attorney General’s letter asks the banks for “detailed accounting regarding your expected payments to top management in the upcoming bonus season.” In the letter, Cuomo suggest that such payments may violate N.Y. Debtor & Creditor Law § 274 as illegal fraudulent conveyances.
Rep. Waxman’s letters requesting compensation and bonus information for employees of major banks are available at the Committee on Oversight and Government Reform webpage.
Wednesday, October 29, 2008
The proposed settlement agreement, if approved by the US District Court, is seen as a victory for researchers and will provide enhanced access to copyrighted works through Google Book Search and a mechanism for the compensation of copyright holders. For more information, see the Authors Guild v. Google Settlement Resources Page. See Google’s web page to see how the settlement will affect Google Book Search.
Friday, October 24, 2008
The article lists attorneys who are favorites to join the administration of the winning candidate, according to interviews with people who know each candidate well. If Obama wins the election, you can see the lawyers who may hold key positions by clicking here. For a look at the lawyers who may join a McCain administration, click here.
Thursday, October 23, 2008
According to the Legal Intelligencer, the documents in the case of Doe v. C.A.R.S. Protection Plus Inc., 527 F.3d 358 (3d Cir. 2008) have been under seal for more than seven years. The case came to light in May, when the Third Circuit unanimously reversed the trial court's dismissal of a sex discrimination suit brought by a woman who claims she opted to have an abortion after tests showed that her baby had severe deformities, and that she was fired three days later – the day she attended the funeral for the baby. The case raises a question of first impression as the 3rd Circuit held that Title VII, as amended by the Pregnancy Discrimination Act, protects a worker's right to terminate a pregnancy because an abortion qualifies as a "related medical condition." The 3rd Circuit's decision was significant because it held for the first time that a woman's decision to terminate a pregnancy is protected under Title VII.
The 3rd circuit’s ruling left in place the trial judge’s decision to seal all documents in the case. In a separate motion, the newspaper asked the 3rd Circuit to unseal the case at the appellate level where all documents and the court's docket are likewise under seal The Third Circuit Court of Appeals rejected the newspaper’s request to intervene in to unseal the docket and record in a two page order ruling that the entire file in the case may be sealed. The newspaper has now filed a Petition for a Writ of Certiorari with the US Supreme Court challenging the constitutionality of such a blanket sealing order. The newspaper relies on a Second Circuit opinion, Hartford Courant Co. v. Pellegrino, 380 F.3d 83 (2d Cir. 2004), for the principle “that the public and press have a qualified First Amendment right to inspect docket sheets, which provide an index to the records of judicial proceedings”.
The brief noted "This case has been conducted for seven years in complete secrecy, a testament to the need for the Court's guidance regarding the right of access to civil hearings and records." The brief urged the Court to accept review to correct the mistakes below and "clarify that the public has a constitutional right of access to civil proceedings and records, because civil proceedings implicate precisely the same concerns about the fairness of the justice system that underlie the right of access to criminal proceedings."
Monday, October 20, 2008
Prof. Herman is an expert on the US Supreme Court expert with a focus on criminal procedure. She participated in a BLS Library Blog podcast in August of 2008 when she discussed the Tenth Annual Supreme Court Review sponsored by the Practicing Law Institute (PLI) in New York, NY. The BLS Library catalog lists seventeen items (print, video and audio) where Prof. Herman contributed as an author or as a participant. Professor Herman's scholarly and legal writings are available on her Selected Works page.
Thursday, October 16, 2008
The American Association for Justice (AAJ) has just released a new report, Get out of Jail Free: a Historical Perspective of How the Bush Administration Helps Corporations Escape Accountability, based in part on documents obtained through FOIA, detailing the Bush Administration's use of preemption as a deregulatory strategy. The report provides detailed examples of how federal agencies have tried to usurp state law and undermine consumer protections. AAJ's report explains how the administration's first attempts to preempt state-law protections consisted of amicus briefs on behalf of corporations in civil justice cases. After only mixed success, the administration then shifted strategies, targeting regulatory agencies in charge of product safety oversight. Because the courts have not yet conclusively determined whether preambles carry the full weight of law, corporations are now using this legal theory to challenge verdicts in product liability cases.
A major case pending before the US Supreme Court on this issue is Wyeth v. Levine which will decide this term whether federal law preempts state torts claims imposing liability on drug labeling that the FDA had previously approved. The case involves a jury verdict in a failure-to-warn product liability case in amount of $6.5 million in favor of plaintiff Diana Levine, who suffered severe injury and the amputation of her arm as a result of being injected with the defendant's drug Phenergan directly into her artery as a treatment for nausea from a migraine headache. The pharmaceutical company defendant argues that Vermont's stricter regulations on administering the drug are preempted by less stringent federal regulations. The Supreme Court of Vermont issued its opinion in favor of the plaintiff in October 2006. For more on the Wyeth case, read former BLS Prof. Anthony Sebok’s FindLaw article More on the Upcoming Supreme Court Case of Wyeth v. Levine and the Preemption Temptation.
For reading on the issue, see in the BLS Library collection Federal Preemption of State and Local Law: Legislation, Regulation, and Litigation by James T. O'Reilly (Call # KF4600 .O74 2006) with chapters including: The basics on preemption -- Preemption categorizations -- Constituencies for preemption -- Constitutional background -- Political and policy debates -- Federal mechanisms for agency preemption -- Express congressional decisions to preempt -- Implied forms of preemption -- Defensive use of federal preemption in civil litigation.
Monday, October 13, 2008
No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.At issue is the term “natural born Citizen”. Three cases have challenged Sen. John McCain’s eligibility on the ground that he is ineligible due to his birth in the Panama Canal Zone: the first was Inland Empire Voters v. United States, filed in the US District Court for the Central District of California; the second was Hollander v. McCain, filed in the US District Court for the District of New Hampshire; and the third, Robinson v. Bowen, was filed in the US District Court for the Northern District of California in August 2008. All cases were dismissed due to the plaintiff’s lack of standing. Interestingly, District Court Judge William Alsup in his September 16 opinion dismissing the Robinson case stated:
It is clear that mechanisms exist under the Twelfth Amendment and 3 U.S.C. § 15 for any challenge to any candidate to be ventilated when electoral votes are counted, and that the Twentieth Amendment provides guidance regarding how to proceed if a president elect shall have failed to qualify. Issues regarding qualifications for president are quintessentially suited to the foregoing process. Arguments concerning qualifications or lack thereof can be laid before the voting public before the election and, once the election is over, can be raised as objections as the electoral votes are counted in Congress. The members of the Senate and the House of Representatives are well qualified to adjudicate any objections to ballots for allegedly unqualified candidates. Therefore, this order holds that the challenge presented by plaintiff is committed under the Constitution to the electors and the legislative branch, at least in the first instance. Judicial review--if any--should occur only after the electoral and Congressional processes have run their course.The September 2008 issue of First Impressions, the online companion to the Michigan Law Review has an Online Symposium on Senator John McCain and Natural Born Citizenship with five scholarly articles debating the issue.
Now a new suit, Berg v. Obama, has been filed in the US District Court for the Eastern District of Pennsylvania alleging that Sen. Barack Obama is not eligible to be President on the natural born citizen issue. A Motion to Dismiss the complaint is pending before the Court. The motion is grounded on the plaintiff’s lack of standing and cites as authority the dismissed cases that were filed against Sen. McCain.
Whatever the election results, the possibility of the final outcome being resolved in the US Supreme Court may not be so far-fetched.
Sunday, October 12, 2008
The FCA, originally called the "Lincoln Law," was first enacted in 1863 to combat fraud by companies that sold supplies to the Union Army. The law contains "qui tam" provisions that allow private citizens (whistleblowers suing on behalf of the government or “relators”) to sue companies or individuals defrauding the government. Qui tam is short for the Latin phrase qui tam pro domino rege quam pro se ipso in hac parte sequitur, which means “who pursues this action on our Lord the King’s behalf as well as his own.”
Traditionally, FCA claimants sued under 31 U.S.C. § 3729(a)(1), which imposes liability on any person who knowingly “presents, or causes to be presented" a false or fraudulent claim to the US. More recently, suits sought to broaden the reach of the FCA by bringing claims under 31 U.S.C. § 3729(a)(2), which imposes liability on any person who knowingly uses a "false record or statement to get a false or fraudulent claim paid or approved by the Government." FCA suits have also used 31 U.S.C. § 3729(a)(3), which imposes liability on any person who "conspires to defraud the Government by getting a false or fraudulent claim allowed or paid." The argument under these provisions is that a defendant is liable for false claims made to a private entity, as long as the entity used government funds to pay the claim. Under this view, companies who have never done business with the government could be liable. Lower courts have disagreed over the correct interpretation of subsections (2) and (3). In the Allison Engine litigation, the 6th Circuit ruled that the FCA applies to any defendant whose invoice was paid using federal funds. The DC Circuit rejected this interpretation concluding that it "would make the potential reach of the Act almost boundless."
The Supreme Court’s decision subjects whistleblowers' allegations to closer scrutiny by imposing liability under the FCA for false or fraudulent claims where government money is paid "by the government". The Sixth Circuit held that proof of intent to cause a false claim to be paid by a private entity "using" government funds was sufficient to establish a violation of the FCA. The Supreme Court flatly rejected this view saying that the Federal government "must literally pay the bill". There must be a direct link between the false statement and the federal government's decision to pay or approve the false claim.
The 110th Congress is debating the False Claims Act Correction Act of 2008, which could significantly amend the FCA. The legislation would extend the reach of the FCA to any claim in which federal funds were involved in an actual or potential payment, irrespective of whether whether the federal government actually pays such claims directly or whether the defendant intended specifically to defraud the federal government (as opposed to intending to submit a false claim). A version of the bill was reported on September 25 by the Senate Judiciary Committee when it issued Senate Report 110-507.
Friday, October 10, 2008
Parties to a civil union shall have all the same benefits, protections and responsibilities under law, whether derived from the general statutes, administrative regulations or court rules, policy, common law or any other source of civil law, as are granted to spouses in a marriage, which is defined as the union of one man and one woman.The plaintiffs filed a motion for summary judgment and its supporting memorandum on the merits of the case. The Attorney General, in opposition, filed a reply brief and sought summary judgment on behalf of the State. On June 12, 2006, Judge Pittman denied the plaintiff’s motion, in an opinion ruling that the exclusion of same-sex couples from marriage did not violate the Connecticut Constitution.
The Supreme Court reversed the trial court agreeing with the plaintiffs that the state's marriage law discriminates against them because it applies only to heterosexual couples, therefore denying gay couples the financial, social and emotional benefits of marriage.
The trial court rendered summary judgment in favor of the defendant state and local officials upon determining that, because this state’s statutes afford same sex couples the right to enter into a civil union, which affords them the same legal rights as marriage, the plaintiffs had not established a constitutionally cognizable harm. We conclude that, in light of the history of pernicious discrimination faced by gay men and lesbians, and because the institution of marriage carries with it a status and significance that the newly created classification of civil unions does not embody, the segregation of heterosexual and homosexual couples into separate institutions constitutes a cognizable harm. We also conclude that (1) our state scheme discriminates on the basis of sexual orientation, (2) for the same reasons that classifications predicated on gender are considered quasi-suspect for purposes of the equal protection provisions of the United States constitution, sexual orientation constitutes a quasi-suspect classification for purposes of the equal protection provisions of the state constitution, and, therefore, our statutes discriminating against gay persons are subject to heightened or intermediate judicial scrutiny, and (3) the state has failed to provide sufficient justification for excluding same sex couples from the institution of marriage. In light of our determination that the state’s disparate treatment of same sex couples is constitutionally deficient under an intermediate level of scrutiny, we do not reach the plaintiffs’ claims implicating a stricter standard of review, namely, that sexual orientation is a suspect classification, and that the state’s bar against same sex marriage infringes on a fundamental right in violation of due process and discriminates on the basis of sex in violation of equal protection. In accordance with our conclusion that the statutory scheme impermissibly discriminates against gay persons on account of their sexual orientation, we reverse the trial court’s judgment and remand the case with direction to grant the plaintiffs’ motion for summary judgment.The decision makes Connecticut the third state where the highest court has ruled to legalize same-sex marriage, following the Supreme Courts of Massachusetts (Goodridge v. Dept. of Public Health) and California (In re Marriage Cases). The constitutionality of prohibiting marriage to same-sex partners has come before the Court of Appeals in New York (Hernandez v. Robles) and the New Jersey Supreme Court (Lewis v. Harris) but those courts decided to defer to their respective state legislatures.
This November, voters in several states will cast their ballots on the issue of same-sex marriage. California voters will decide on Proposition 8 which changes the California Constitution to eliminate the right of same-sex couples to marry in California. Arizona will vote on Propostion 102 which will "amend the Arizona Constitution to provide that only a union of one man and one woman shall be valid or recognized as a marriage". Florida has Amendment No. 2 on its ballot. The Florida Marriage Protection Amendment states "Inasmuch as marriage is the legal union of only one man and one woman as husband and wife, no other legal union that is treated as marriage or the substantial equivalent thereof shall be valid or recognized."
For more reading, see Same-Sex Marriage and the Constitution: We All Deserve the Freedom to Marry by Evan Gerstmann (Call # KF539 .G47 2008) in the BLS collection. Chapters include: Reason and prejudice: is the heterosexual monopoly on marriage rational? -- Looking for stricter scrutiny: sexism, heterosexism, and class-based equal protection -- The fundamental right to marry -- Same-sex marriage and the fundamental right to marry -- Should courts create new rights?
See also, Beyond Straight and Gay Marriage: Valuing All Families under the Law by Nancy D. Polikoff (Call # 38 .P65 2008) which has chapters: The changing meaning of marriage -- Gay rights and the conservative backlash -- Redefining family -- The right and the marriage movement -- LGBT families and the marriage-equality movement -- Countries where marriage matters less -- Valuing all families -- Domestic partner benefits for all families -- Coping with illness : medical care and family and medical leave
Friday, October 3, 2008
The government’s case was based in large part on an FBI sting operation which relied heavily on the assistance of a confidential informant named Mohammed Al-Anssi, a Yemeni national who, in difficult financial circumstance, approached the FBI seeking compensation in exchange for information. According to the opinion:
Al-Anssi initially asked the FBI for 5 million dollars in exchange for his assistance, “hoping that it will go up, no problem.” He also requested United States citizenship and that his family be brought to the United States from Yemen. In describing his motive for seeking compensation, Al-Anssi testified, “the issue was the truth, the whole issue, and after I chase the terrorists and to bring him here to America, I deserve even 10 million dollars."Choosing not to call the confidential informant as a witness in its case in chief, the US Attorney instead presented the informant’s written notes and a series of video tapes that he made of the defendant Al-Moayad to prove that he was funding terrorist organizations. One of the tapes was of a speech given by a guest at a wedding in Yemen hosted by Al-Moayad where a Hamas related guest made reference to another wedding ceremony in Tel Aviv on the same day where a terrorist attack occurred.
Al-Anssi stated that he was paid $100,000 by the FBI for his assistance. However, he believed that he deserved millions, “[a]nd I expect more than that.” Al-Anssi admitted that, because he was upset about his small payment from the FBI, he falsely told the Washington Post that the FBI promised to pay him 5 million dollars. He also testified that in November 2004, in an attempt to coerce the FBI into paying him more money, he set himself on fire in front of the White House. With regard to this incident, Al-Anssi testified that he did not intend to commit suicide, but that he “wanted to put the government and the world on notice,” and that “[i]t is my right to get as much as I can from the FBI."
The government also relied on the testimony of a young Scottish law student named Gideon Black that a suicide bombing occurred on a bus in Tel Aviv that same day. Black was a passenger on the bus along with his cousin Yoni, who was killed in the attack. Over defense objections that it was unrelated to the charges and highly prejudicial, the trial judge permitted Black’s lengthy and detailed testimony about the bombing.
The Circuit Court opinion lists other examples of how the Justice Department undermined its own case with questionable evidence, use of entrapment techniques and other sensational tactics. It implicitly criticized the trial judge, the Hon. Sterling Johnson Jr. saying:
The district court’s cumulated errors in admitting Al-Anssi’s notes and the testimony of Gideon Black and Yahya Goba “cast such a serious doubt on the fairness of the trial” as to warrant reversal of the defendants’ convictions. That doubt is especially grave when we also take into account the district court’s erroneous admission of the mujahidin form, the wedding video, and the Croatian last will and testament, as well as its questionable handling of the derivative entrapment issue.
In reversing the convictions, the appeals court in an unusual directive remanded the case “to the district court for further proceedings consistent with this opinion before a different district court judge”.
See the NY Times article on the ruling.
Thursday, October 2, 2008
Graduating students who need private loans while they study for the bar exam will likely feel the credit crunch. An article in the National Law Journal says:
Many law school graduates rely on private loans to pay their living costs while they study for the bar exam. But because banks are doling out less money to lenders, private loans are getting harder to come by, said New York Law School Dean Richard Matasar, who is also chairman of the board of directors of education lender Access Group. That means it will be more difficult for law school graduates to secure private loans, and graduates will likely pay higher interest rates if they do get a private loan to bridge the gap between graduation and the bar.The financial crisis will likely result in slow economic growth so that graduates will spend more time in the job search process and will need additional financial assistance. The crisis may also cause many undergraduates to look to higher education during tough economic times and bad employment markets. Increased enrollment in law schools overall could be a positive side effect of the slowing economy, according to Dean Matasar.
Pursuing a JD, as opposed to an MBA, may be a safer career move now compared to a year or two ago when graduates of business schools would get job offers that most law school grads would envy. Given the current meltdown in the financial markets, the era of big bonuses in investment banks may never come back. But there will always be a need for lawyers even more so now. For interesting reading on the net present value of a law degree, read last week’s post at the Conglomerate which analyses whether law school is a good value. Using a median salary of $106,120 for lawyers and thinking of a law degree as an annuity, the article suggests that it is.
It represents a payment stream that lasts for a career (say 40 years) that equals the spread between what you would have earned without your law degree versus what you can with it. Using the median salary numbers, that spread is almost $60,000. Discounted at 8%, the annuity has a present value of over $700,000. The present value of three years of tuition (at $40,000 a year), books and foregone salary (at the median) is about $230,000.The Financial Aid office will host a workshop for law students on how best to manage loan packages throughout law school and after graduation.
The forum aims to help law students improve their financial knowledge, learn how to limit their debt, improve their credit scores and protect their identity. It will be held on Monday, October 13 at 1pm in the student lounge.