Research Associates
	Volume 13, Number 2       Our 24th Year   February 2005

“We now know, in a way almost unthinkable even a decade ago that our system of criminal justice, for all its protections, is sufficiently falliable.”
--- Judge Jed S. Rakoff, Federal District Court, Manhattan, April 2002

DECISIONS OF INTEREST

U.S. SUPREME COURT

COMM'R v. BANKS, No. 03-892 (U.S.S.C. January 24, 2005)
In calculating federal income tax, when a litigant's recovery constitutes income, the litigant's income includes the portion of the recovery paid to the attorney as a contingent fee. http://laws.lp.findlaw.com/us/000/03892.html

 ILLINOIS v. CABALLES, No. 03-923 (U.S.S.C. January 24, 2005)
A dog sniff conducted during a lawful traffic stop, that reveals no information other than the location of a substance that no individual has any right to possess, does not violate the Fourth Amendment. http://laws.lp.findlaw.com/us/000/03923.html

US v. BOOKER, No. 04-104 (U.S.S.C. January 12, 2005)
The Federal Sentencing Guidelines limit the severity of the sentence that a judge can lawfully impose on a defendant to the facts found by the jury at trial. http://laws.lp.findlaw.com/us/000/04-104.html

CLARK v. MARTINEZ, No. 03-878 (U.S.S.C. January 12, 2005)
Under immigration statute 8 U.S.C. section 1231(a)(6), the Secretary of Homeland Security may detain inadmissible aliens beyond the 90-day removal period, but only for so long as is reasonably necessary to achieve removal. http://laws.lp.findlaw.com/us/000/03-878.html

2nd CIRCUIT

FLAGG v. YONKERS SAVINGS AND LOAN, No. 04-1948 (2d Cir. January 21, 2005)
Federal law preempts the field of mortgage escrow accounts held by federal savings associations. http://caselaw.lp.findlaw.com/data2/circs/2nd/041948p.pdf

US v. ALCANTARA, No. 02-1010 (2d Cir. January 24, 2005)
Since the public and press have a qualified First Amendment right of access to plea and sentencing proceedings, such proceedings cannot be closed unless the district court provides notice to the public and makes findings on the record demonstrating the need for the closure. http://caselaw.lp.findlaw.com/data2/circs/2nd/021010p.pdf

3RD CIRCUIT

US v. DAVIES, No. 03-1933 (3d Cir. January 13, 2005)
Defendant's conviction for burning down a church is reversed where defendant has demonstrated that he is "actually innocent" of the charge since, in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him. http://caselaw.lp.findlaw.com/data2/circs/3rd/031933p.pdf

9th CIRCUIT

JONES v. BLANAS (12/27/04 - No. 02-17148)
Under the Fourteenth Amendment, a civil detainee awaiting adjudication is entitled to conditions of confinement that are not punitive. http://caselaw.lp.findlaw.com/data2/circs/9th/0217148p.pdf

PUBLICATION OF INTEREST

Andrews, Forrest Lee, “Small Bites: Obesity Lawsuits Prepare to Take on the Fast Food Industry,” Albany Law Journal of Science & Technology, 2004, Volume 15, Number 1.

Hillebrand, Gail, “After the FACTA: State Power to Prevent Identity Theft,” Loyola Consumer Law Review, 2004, Volume 17, Number 1.

(FACTA – Fair and Accurate Credit Transactions Act)

Levin, Justin C., “Protect Us or Leave Us Alone: The New York State Smoking Ban,” Albany Law Review, 2004, Volume 68, Number 1.

Michaels, Philip J. and Laura M. Twomey, “All in the Family: A How-to Guide on Lending to Family Members,” New York State Bar Association Journal, February 2005, Volume 77, Number 2.

MATTERS OF INTEREST

MAKEUP REQUIREMENTS FOR FEMALE EMPLOYEES VIOLATE ANTI-DISCRIMINATION LAW

Colb argues that a recent federal appellate decision was wrong to hold that forcing female employees alone -- in this case, a casino bartender -- to wear makeup did not count as sex discrimination. Colb contends that such a policy is discriminatory for two distinct reasons -- the extra monetary cost imposed on female employees, and the sex-based stereotyping that is part and parcel of the requirement. http://writ.news.findlaw.com/colb/20050111.html

Read The Decision (Jespersen v. Harrah's Operating Co.)  http://caselaw.lp.findlaw.com/data2/circs/9th/0315045p.pdf

DOCUMENTS OF INTEREST

Chief Justice William H. Rehnquist released the year-end report on the federal judiciary for 2004. It addresses the funding crisis and criticism concerning "judicial activism." http://www.uscourts.gov/newsroom/2004YearEndReport.pdf

http://snipurl.com/brep

Also, “Judiciary Budget Facts and Impact,”
The Federal Judiciary, 1 January 2005.
http://www.uscourts.gov/judiciary2005.html

BRIEF RELIEF MATTERS

1. Connecticut - zoning board issues as to jurisdiction
2. Florida - matrimonial issues as to modification of visitation and imputed income
3. New York - liability for error in title report
4. New York - sanction on attorney for failure to appear
5. New York - opposition to slip-and-fall summary judgment motion
6. New York - grand jury request to charge; arson and insurance fraud
7. Fair Debt Collection Act - issue as to notice to debtor