Volume 15, Number 5-6 Our 26th Year May- June 2007
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Volume 15, Number 5-6 Our 26th Year May- June 2007 |
Laws and institutions must go hand in hand with the progress of the human mind. Sir Francis Bacon
The law is a horrible business. Clarence Seward Darrow
Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it... Learned Hand
DECISIONS OF INTEREST
SUPREME COURT
Winkelman v. Parma City Sch. Dist., No. 05-983
The Individuals with Disabilities Education Act (IDEA) grants parents
independent, enforceable rights, which are not limited to procedural and
reimbursement-related matters, but encompass the entitlement to a free
appropriate public education (FAPE) for their child.
Los Angeles County v. Rettele, No. 06-605
In a 42 U.S.C. section 1983 suit brought by residents arising from a police
search and detention under circumstances in which police obtained a valid
warrant to search a house, but were unaware that the suspects being sought had
previously moved out, a court of appeals' ruling against petitioners-officers is
reversed where respondents' constitutional rights were not violated when
petitioners ordered Caucasian respondents out of bed while they were naked,
despite the fact that the suspects being sought were of a different race. The
orders by the police to the occupants, in the context of the lawful search in
this case, were permissible, and perhaps necessary, to protect the safety of the
deputies and the residents' detention was not unreasonable either.
Scott v. Harris, No. 05-1631
A police officer's attempt to terminate a dangerous high-speed car chase that
threatens the lives of innocent by-standers does not violate the Fourth
Amendment, even when it places the fleeing motorist at risk of serious injury or
death.
SECOND CIRCUIT
CIVIL PROCEDURE, EDUCATION LAW
Bay Shore Union Free Sch. Dist. v. Kain, No. 06-0601
Judgment confirming the decision of the state review officer that plaintiff
school district provide defendant's seven-year-old son who has ADHD a one-to-one
teacher's aide at his parochial school is vacated, and the appeal dismissed,
where the district court improperly assumed jurisdiction over this case. Even if
the IDEA incorporates the relevant New York Education Law, it does not provide
an independent federal question that would sustain the court's jurisdiction.
Kelly v. Albarino, No. 06-0580
Dismissal of a defamation charge is affirmed where the defamatory statement fell
under the absolute privilege for statements made by participants in a judicial
proceeding since charges of larceny made in a sworn affidavit were pertinent to
the matter before the court.
FIFTH CIRCUIT
Court of Appeals
Freeman v. Gore, No. 05-41684
In a 42 U.S.C. section 1983 action, denial of defendants-deputies' motions for
summary judgment on the basis of qualified immunity is affirmed in part as to
plaintiff's unlawful arrest claim, but reversed in part as to an excessive force
claim where any injuries suffered by plaintiff were minor and incidental, and it
was not excessive force for deputies to leave plaintiff in a patrol car for 30
to 45 minutes
U.S. DISTRICT COURT N.D. CALIF
Law Professor Charged Possession of Child Pornography on University Computers
U.S. V. MURDAUGH STUART MADDEN, JR.
(San Jose, Calif., April 24, 2007) - A visiting professor at California's Santa Clara University School of Law faces federal charges for having child pornography on his school-issued laptop computer, and on another computer issued to him by the Pace University School of Law in White Plains, N.Y. where he previously taught
NEW YORK COURT OF APPEALS
Clementoni v. Consol. Rail Corp., No. 57
In an appeal arising out of the collision of an automobile driven by plaintiff and a train operated by defendant-rail company, summary judgment for defendants-property and grade crossing owners is affirmed as: 1) defendants-grade crossing owners owed plaintiff no duty to warn or protect under the circumstances; and 2) a landowner is generally not liable for the existence of uncut vegetation obstructing the view of motorists at an intersection.
FOR COPY OF ANY OPINIONS CONTACT RESEARCH ASSOCIATES
MATTERS OF INTEREST
Forward E-Mail at Your Own Risk
In a Kansas Law Review article, assistant law professor Ned Snow states that
forwarding e-mail is a violation of copyright law because of 250-year-old common
law. Despite the Copyright Act arguably changing all that, Snow concludes that
constitutional limits on the reach of legislation mean that protection of
personal correspondence remains alive -- and encompasses e-mail.
-- Legal Blog Watch
http://legalblogwatch.typepad.com/legal_blog_watch/
Malpractice Juries Tend to Side More With Doctors, Researcher Finds
New Jersey Law Journal
Popular belief, at least in medical communities, holds that juries in medical malpractice cases tend to side with plaintiffs, even where the case against a doctor is a weak one. But jurors actually tend to believe doctors more than they do plaintiffs, says a law professor who examined numerous data on medical malpractice litigation. The assumption that juries cannot fairly evaluate medical malpractice suits is implicit in legislation pending in Congress that would create specialized courts for such cases.
http://www.law.com/jsp/article.jsp?id=1177405469149
Courts Grapple With Computer Searches
The National Law Journal
With more criminal cases depending on forensic computer searches, courts must decide between the user's perspective of a computer as a locked box protecting its virtual contents, and the law-enforcement perspective of a computer as a physical container, easily opened. A recent 10th Circuit case turned a spotlight on how appellate courts grapple with third-party consents to search computers, recognizing for the first time that a password-protected computer is like a locked box. Will other courts follow suit?
http://www.law.com/jsp/article.jsp?id=1179092588804
BRIEF RELIEF MATTERS
IN PROGRESS
1. Florida Matrimonial and special equity in real property.
2. Kansas Motion to dismiss based upon forum selection clause and contract.
3. NY Complaint for fraud.
4. NY Issues as to attorneys fees in wrongful death action involving child.
5. NJ Opposition to application for removal of executor.