October 2007 Archives

JURIST - Paper Chase: Supreme Court blocks Mississippi lethal injection execution

Tuesday, October 30, 2007


Supreme Court blocks Mississippi lethal injection execution
Mike Rosen-Molina at 7:26 PM ET


[JURIST] The US Supreme Court [official website] granted a stay of execution [order, PDF] to a convicted murderer on Mississippi's death row Tuesday, pending the Court's decision on whether to grant certiorari in the case. Earl Wesley Berry was scheduled to die by lethal injection Tuesday night; his was the third stay granted by the justices since they agreed last month in Baze v. Rees (07-5439) [docket; cert. petition] to hear a challenge to the use of lethal injections [JURIST news archive] as a form of "cruel and unusual punishment." Experts say that the stay may amount to a de facto nationwide moratorium on the death penalty.

ABC News has more.

AP has additional coverage.

JURIST - Paper Chase: ABA urges nationwide death penalty moratorium

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Via JURIST:

JURIST - Paper Chase: ABA urges nationwide death penalty moratorium

Monday, October 29, 2007


ABA urges nationwide death penalty moratorium
Jaime Jansen at 6:59 AM ET


[JURIST] The American Bar Association (ABA) [official website] said Monday that there are serious flaws in the fairness and accuracy of several state death penalty systems [project website], and called for a nationwide moratorium on executions [JURIST report]. The ABA task force studied eight sample states - Alabama, Arizona, Georgia, Florida, Indiana, Ohio, Pennsylvania and Tennessee [JURIST reports] - and found poor collection and preservation of DNA evidence, misidentification by eyewitnesses, false confessions and racial disparities.

The ABA study did not examine lethal injections [JURIST news archive], a form of execution that has come under fire nationwide recently. Several states have placed a moratorium on lethal injections pending US Supreme Court review in Baze v. Rees (07-5439) [docket; cert. petition]. In that case, the Court will consider whether the controversial three-drug mixture [DPIC backgrounder] of an anesthetic, a muscle paralyzer and a substance to stop the heart constitutes cruel and unusual punishment. Several constitutional challenges to the procedure have arisen across the country, arguing that the first drug fails to make the inmate fully unconscious, thereby making the inmate suffer excruciating pain when the heart-stopping drug is injected.

AP has more.

New York Enacts Significant New Employment Laws

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Via Proskauer Rose LLP "Client Alert"

In one of the most active legislative periods in recent
times, New York State has enacted a host of new and
amended laws addressing a variety of workplace
issues.

Click here to download the Client Alert. which summarizes the changes.

FINDLAW: Daily Opinion Summaries for New York Court of Appeals - 10/23/07

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CIVIL PROCEDURE, CONTRACTS, INJURY AND TORT LAW

City of New York v. Welsbach Elec. Corp., No. 121
In indemnification and contribution action by plaintiff city against defendant regarding defendant's maintenance of traffic signals relative to a car accident, filed after plaintiff city was found liable, the Appellate Division erred in concluding that plaintiff was barred by the doctrines of res judicata and collateral estoppel from maintaining its action for indemnification or contribution against defendant.


CIVIL PROCEDURE, PROFESSIONAL MALPRACTICE

GML, Inc. v. Cinque & Cinque, P.C., No. 179 SSM 20
In legal malpractice action brought by Tennessee plaintiffs against New York defendants, summary judgment for defendants on ground that the case was untimely is affirmed over claim that since defendants were not subject to in personam jurisdiction in Tennessee, plaintiffs should be able to utilize Tennessee's tolling provision.

CRIMINAL LAW & PROCEDURE, SENTENCING

People v. Taylor, No. 123
As New York's jury deadlock instruction under CPL 400.27 was held, in People v LaValle (3 NY3d 88 [2004]), to violate the State Constitution, an earlier attempt by a trial court to minimize the coercive effect of the flawed jury deadlock instruction in a death penalty case requires vacating defendant's death sentence under the doctrine of stare decisis.

Please mark your calendars for Thursday, November 29, 2007, as follows:

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Electronic Discovery Under the Federal Rules of Civil Procedure (2:00-4:00)

Guest Speaker: Ronald J. Hedges, Esq. of Nixon, Peabody, LLP, and former U.S. Magistrate Judge for the District of New Jersey.
Panel: Hon. David R. Homer, U.S. Magistrate Judge; Hon. Randolph F. Treece, U.S. Magistrate Judge; and Daniel J. Hurteau, Esq., Nixon Peabody, LLP.

CLE credit is available.

Please see the registration form on NYND's website for further information:

http://www.nynd.uscourts.gov/documents/November_29_2007_FCBA_Seminar.pdf

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FCBA Annual Board Meeting (4:30-5:30) and Dinner (beginning at 6:30).

Keynote Speaker: Kathryn Grant Madigan, Esq., President of the NYS Bar Association

Please see the announcement on NYND's website for further information:

http://www.nynd.uscourts.gov/documents/AnnualDinnerInvitation.pdf

There will be a conference in New York City on Tuesday, November 27th, 2007. The Institute for Business, Law and Technology at Touro, is presenting a half-day conference entitled "When Spam isn't Spam: An Unfiltered Look at Self-Regulation and the Law Behind E-mail." Up to 3 hours of CLE credit (including 1 ethics hour) are available for attorneys attending the conference.

The event seeks to educate legal and business professionals in every industry about the laws and rules surrounding e-mail and spam, including;

. marketing via e-mail without spamming,
. what to do if your e-mail is blocked,
. protecting your users and customers from
spam, and
. why being legal is not enough.

Speakers at the event include Matt Leonard, CIPP and Ponemon Institute fellow; Adam Z. Solomon of The Lustigman Firm; Brett Glass, computer journalist and founder of ISPLariat.net; Matt Blumberg, CEO of Return Path; and Andrew H. Lupu, attorney and former Chief Privacy Officer of CA. Prof. David Farber of Carnegie Mellon, world-renowned expert in technology in policy, will give the keynote address.

Online registration is available at Touro under Continuing Legal Education.

For Further Information Contact:

Prof. Jonathan I. Ezor
Assistant Professor of Law and Technology
Director, Institute for Business, Law and Technology (IBLT)
Touro Law Center
225 Eastview Drive, Central Islip, NY 11722
Direct: 631-761-7119 Fax: 516-977-3001
e-mail: jezor@tourolaw.edu

FINDLAW: Daily Opinion Summaries for New York Court of Appeals - 10/18/07

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CIVIL PROCEDURE, INJURY AND TORT LAW

Boyd v. Manhattan & Bronx Surface Transit Operating Auth., No. 113
In a negligence action against a common carrier for injuries caused by defective equipment, the jury should be charged that the plaintiff must show the carrier had actual or constructive notice of the defect.


FAMILY LAW, PER CURIAM, PROBATE, TRUSTS & ESTATES

In the Matter of the Estate of Wallens, No. 122
In proceeding seeking judicial settlement of accounts of a co-trustee, finding that father, as co-trustee of beneficiary daughter's trust left to her by her grandfather, did not engage in self-dealing, in breach of his fiduciary obligations to daughter by his use of trust funds for her private secondary school education and other expenses, is reversed where a remittal was necessary for Surrogate's Court to conduct a hearing as to whether father carried out his fiduciary duty as a co-trustee to act, in good faith, in his daughter's interests.


INSURANCE LAW, LABOR & EMPLOYMENT LAW

Friedman v. Conn. Gen. Life Ins. Co., No. 116
The placement of a "Relation of Earnings to Insurance" clause within the "General Provisions" of a disability insurance policy complies with Insurance Law section 3216.

FINDLAW: Daily Opinion Summaries for New York Court of Appeals - 10/16/07

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LATEST SUMMARIES

CIVIL PROCEDURE, CONTRACTS, DISPUTE RESOLUTION & ARBITRATION

Stark v. Molod Spitz DeSantis & Stark, P.C., No. 114
In case involving terminated partner and her former law firm, dismissal of certain causes of action related to prior special proceeding and resolved by stipulated settlement, dismissal of another claim for failure to state a claim, and grant of motion to arbitrate gender discrimination claim is reversed as to the order of the Appellate Division that: 1) reinstated the causes of action; 2) denied the firm's motion to compel arbitration; and 3) granted plaintiff's cross motion to stay arbitration.


CIVIL PROCEDURE, EVIDENCE, INJURY AND TORT LAW

Ortega v. City of New York, No. 118
The tort of third-party negligent spoliation of evidence is not cognizable in New York, as it is not clear that existing New York remedies are inadequate to deter spoliation or appropriately compensate its victims.


CRIMINAL LAW & PROCEDURE, EVIDENCE

In the Matter of Victor M., No. 120
In case where appellant was adjudicated a delinquent and placed in the custody of the Office of Children and Family Services, the order of disposition is reversed where the police search in this case was unreasonable as a matter of law, and the drugs found on appellant during the search must be suppressed.

FINDLAW: Daily Opinion Summaries for New York Court of Appeals - 10/11/07

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BANKING LAW, CIVIL PROCEDURE, CONSTRUCTION, CORPORATION & ENTERPRISE LAW

Reliance Ins. Co. v. Polyvision Corp., No. 117
In dispute between construction surety and suppliers of allegedly deficient materials, question certified by U.S. Court of Appeals for the Second Circuit is answered as follows: CPLR 205 (a), which adds a six-month grace period to the statute of limitations, does not permit a corporation to refile an action originally commenced in the name of a different, related corporate entity that has been dismissed for naming the wrong plaintiff.

CIVIL PROCEDURE, CRIMINAL LAW & PROCEDURE, INJURY AND TORT LAW

Launders v. Steinberg, No. 115
In action by estate of adopted six-year-old daughter against defendant, her father, who was convicted of her manslaughter, partial summary judgment against defendant based on collateral estoppel and grant of multi-million-dollar award to estate are vacated where the issue of prior acts of abuse was not necessarily decided at defendant's criminal trial.

GOVERNMENT LAW, INSURANCE LAW

Dinallo v. DiNapoli, No. 111
The New York State Comptroller has neither the constitutional nor statutory authority to audit the New York State Insurance Department Liquidation Bureau.

INJURY AND TORT LAW, INSURANCE LAW, LABOR & EMPLOYMENT LAW, WORKERS' COMPENSATION

Burns v. Varriale, No. 112
In proceeding to extinguish a lien asserted under Workers' Compensation Law section 29, the Court of Appeals holds that the value of future workers' compensation benefits for a claimant with a nonschedule permanent partial disability is speculative, that the present value of these benefits cannot be ascertained at the time claimant recovers damages in a third-party action, and that claimant is not entitled to an apportionment of attorney's fees based on such future benefits.

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Tom F. affirmed by Supremes

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_________________
_________________
SUPREME COURT OF THE UNITED STATES
No. 06–637
BOARD OF EDUCATION OF THE CITY SCHOOL

DISTRICT OF THE CITY OF NEW YORK,

PETITIONER v. TOM F., ON BEHALF OF

GILBERT F., A MINOR CHILD

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SECOND CIRCUIT

[October 10, 2007]

PER CURIAM.

The judgment is affirmed by an equally divided Court.

JUSTICE KENNEDY took no part in the decision of this
case.

The U.S. Court of Appeals for the Second Circuit vacated the decision of the district court on August 9, 2006, reasoning by comparing the disputed section of the act with other sections that IDEA was not intended to deny reimbursement for students never enrolled in public school. The court held that upholding the district court ruling would require parents to enroll their children in inadequate public schools as a condition of eligiblility for tuition reimbursement.


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See Background


Lawyer 2 Lawyer on Toy Recall

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On the latest Lawyer 2 Lawyer, hosts and attorneys, J. Craig Williams and Robert Ambrogi discuss the toy recall, the effect of the recall on the global economy and the fate of global outsourcing with our special international legal experts in China.

Click here to listen to Lawyer 2 Lawyer now!


President Kate's Blog

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NYSBA President's Blog

You really should drop by NYSBA President Kate Madigan's blog and catch up on all the things Kate has been doing in her year as our President.

I'm particularly impressed with Kate's increased use of and ease with the latest technology.

Hear Kate on the Lawyer 2 Lawyer podcast with Bob Ambrogi discussing Age Discrimination in the Legal Profession.

Proskauer on International Litigation and Arbitration:

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Welcome - Proskauer on International Litigation and Arbitration

Proskauer on International Litigation and Arbitration is written and presented by the Litigation and Dispute Resolution Department and International Practice Group of Proskauer Rose LLP, an international law firm serving clients globally.

The IPG's e-book provides an essential guide to clients for managing, resolving, and avoiding international litigations/arbitrations and cross-border regulatory investigations and proceedings.

Its also free for anyone interested in reading it online.

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Via Carolyn Elefant at Legal Blog Watch

UC Berkeley Releases Entire Course Lectures Free on YouTube

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Press release – "Further expanding public access to its intellectual riches through the most popular Web destinations, the University of California, Berkeley, announced today (Wednesday, Oct. 3) that it is making entire course lectures and special events available, free of charge, on YouTube. UC Berkeley is the first university to make videos of full courses available through YouTube. Visitors to the site at youtube.com/ucberkeley can view more than 300 hours of videotaped courses and events. Topics range from bioengineering, to peace and conflict studies, to "Physics for Future Presidents," the title of a popular campus course. Building on its initial offerings, UC Berkeley will continue to expand the catalog of videos available on YouTube."

Via beSpacific

These first offerings are mostly biology and physics; but one can see the potential for broadening the catalog.

Disgraced Ex-Chief Judge Is Readmitted to Bar

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New York Law Journal (read entire article)

Sol Wachtler, the former chief judge of New York state's high court, has been reinstated to practice law in New York by a unanimous state appellate panel. In a simple, one-page decision, the panel granted the motion filed by Wachtler, 77, who served on New York's Court of Appeals from 1972 until three days after his arrest in 1992 for harassing his ex-girlfriend, Joy Silverman.

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New Online Employer Identification Number Application

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Taxpayers can now request an Employer Identification Number (EIN) online through IRS.gov and get it within minutes. The EIN is immediately recognized by IRS systems, so your clients can begin using it right away for most business purposes.

Find out more in news release IR-2007-161.

Supreme Court Heads Into New Term

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October 1st, 2007
Some see rightward drift stalled in array of criminal law cases

Legal Times (read entire article)
Tony Mauro
October 1, 2007

After bulking up the Supreme Court’s docket on Sept. 25 with 17 additional cases, the justices head into their new term today facing a full array of hot button issues — executive power, death penalty, Internet free speech — that will continue to measure just how far to the right the Roberts Court is heading on the eve of a presidential election.

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