Research Associates
	Volume 13, Number 4       Our 24th Year   April 2005

“Where law ends, tyranny begins.” --- William Pitt

“I consider trial by jury as the only anchor ever jet imagined by man, by which a government can be held to the principles of its constitution.” --- Thomas Jefferson

“Whereas the law is passionless, passion must ever sway the heart of man.” --- Aristotle

DECISIONS OF INTEREST

SUPREME COURT

SMITH v. MASSACHUSETTS, No. 03-8661 (U.S.S.C. February 22, 2005)
Under the Double Jeopardy Clause, a judge's acquittal of a defendant, midway through a jury trial, precludes the judge from reconsidering that acquittal later in the trial. http://laws.lp.findlaw.com/us/000/038661.html

PROPER v. SIMMONS, No. 03-633 (U.S.S.C. March 01, 2005)
The Eighth and Fourteenth Amendments forbid imposition of the death penalty on offenders who were under the age of 18 when their crimes were committed.

For copy of opinion, contact RESEARCH ASSOCIATES jmf@researchassociates.net

FIRST CIRCUIT

WATSON v. BOYAJIAN (03/25/05 – No. 04-9005)
Denial of plaintiffs-debtors’ proposed Chapter 13 plan is affirmed over plaintiffs’ claim that the bankruptcy court erred in determining that parochial school tuition payments for their two minor children are not reasonably necessary expenses within the provisions of 11 U.S.C. section 1325(b). http://laws.lp.findlaw.com/1st/049005.html

SECOND CIRCUIT

US v. BROWN (03-22-05 - No. 04-3137)
The district court abused its discretion by prohibiting defendant, as a condition on probation, from incurring any form of debt without obtaining the prior approval of the Probation Office. http://caselaw.lp.findlaw.com/data2/circs/2nd/043137p.pdf

THIRD CIRCUIT

VITALO v. CABOT CORP. (03/03/05 - No. 03-1741)
In a personal injury action where the injury cause is a disease that develops over time, the statute of limitations begins to run when a plaintiff ceases to exercise reasonable diligence in investigating his health problems. http://caselaw.lp.findlaw.com/data2/circs/3rd/031741p.pdf

FOURTH CIRCUIT

PINNEY v. NOKIA, INC. (03/16/05 - No. 03-1433)
In a class action alleging an unsafe level of radiation in wireless phones, dismissal of the suit is reversed where the district court erred when it found that the plaintiffs' state law claims were preempted by the Federal Communications Act. http://caselaw.lp.findlaw.com/data2/circs/4th/031433p.pdf
 

SEVENTH CIRCUIT

BROOKS v. ELKHART COUNTY (03/25/05 – No. 04-2075)
The display of the Ten Commandments in defendant-County’s Administration Building is constitutional under the First Amendment where defendant’s stated purposes – to educate in the history of American law and politics and provide moral uplift – are secular. http://caselaw.lp.findlaw.com/data2/circs/7th/042075p.pdf

NINTH CIRCUIT

SEC v. YUEN (03/22/05 – No. 03-56129)
A district court order, withholding compensation payments to executives of a corporation pursuant to the Sarbanes-Oxley Act, is affirmed over defendants’ claim that the statute is unconstitutionally vague on its face and as applied to them. http://caselaw.lp.findlaw.com/data2/circs/9th/0356129p.pdf

MATTERS OF INTEREST

Judge: Newspaper can protect sources

Associated Press
The New York Times has a First Amendment right to protect the confidentiality of its sources by denying the government phone records in certain instances. Saying that secrecy in government appears to be on the increase, judge refused to toss out a First Amendment lawsuit the newspaper filed last year to stop the Department of Justice from getting records of phone calls between two veteran journalists and sources.

Read The Opinion
The New York Times Co. v. Gonzales
http://news.findlaw.com/hdocs/docs/nyt/nytdoj22405opn.pdf

Judge Lectures Lawyers on Research for Motion

The Legal Intelligencer

Two Pennsylvania lawyers got a lecture from a federal judge for filing a motion to dismiss an employment discrimination suit that the judge found to be poorly researched and premised on a misreading of the statutes and outdated and overruled case law. The judge said, "The motion was ill-conceived due, it seems, to a puzzling failure on the part of the movants to review, much less appreciate, the governing judicial opinions and statutory provisions applicable to the claims presented in the complaint.”

For copy of article, contact RESEARCH ASSOCIATES jmf@researchassociates.net

RELATED, The Corruption of Legal Research, Appellate Advocacy Committee Perspectives, DRI, April 2004

http://www.law.miami.edu/~rschard/corruption.pdf

A partner bemoans the research skills of young lawyers. The article begins on page 39.

DOCUMENTS OF INTEREST

Lawyer who missed court date because of spam blocker won’t be sanctioned

Andrews Publications

A plaintiffs' attorney in a wrongful-death lawsuit, who missed a court date because his firm's spam blocking software automatically sidetracked the court's e-mail notice, has narrowly escaped being sanctioned for failing to appear at the scheduled status conference.

http://news.lp.findlaw.com/andrews/pl/med/20050223/20050223barnes.html

BRIEF RELIEF MATTERS

1. Liability of travel agents
2. Effect of New York Labor Law, Section 240, on family residence and recalcitrant worker
3. New York – divorce right to recover payments made by wife to her parent
4. New York – memo on ambiguous term in contract, waiver and effect of Phase II environmental study
5. Virginia – partnership agreement
6. Fifth Circuit issues of “assumption of liability,” judicial economy and laches