Research Associates
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Volume 8, Number 11    Our 19th Year November, 2000

"The judicial power to determine law is a power only to determine what the law is, not to invent it…. The judge’s duty to follow precedent derives from the nature of the judicial power itself," and by purporting to free themselves from the constraints of precedent, the 8th Circuit judges had exceeded the "judicial power" as defined in Article III of the US Constitution. (8th Circuit Opinion).

BRIEF RELIEF

Matters in Progress

  1. Research and memo on application of N.Y. and NJ Law to group insurance contract and denial of benefits
  2. Research regarding N.Y. Law whether vicarious contact by a relative on behalf of a parent can defeat a finding of abandonment.
  3. Research regarding issue in N.Y. for carrying a pistol in violation of a target license and application of a plea to immigration deportation proceedings.
  4. N.Y. and P.A. Law on joint accounts and right of surviving spouse.
  5. Preparation of sexual harassment complaint.
  6. Preparation of O/S/C, complaint, memo, and discovery in business contract action.
  7. Cases and articles on assisted suicide and racial effects on death penalty.
  8. Texas statute of limitations issues and discovery rule.
  9. Appellate Brief on matrimonial issues.

MATTERS OF INTEREST

Ohio Supreme Court issued a pair of rulings curtailing the ability of parents to successfully sue doctors after the births of children with disabilities.

New York Court of Appeals: Murder of tenant is covered "Accident" within policy because issue must be gauged from landlord/insurer’s standpoint, not assailant’s. Agado Realty Corp v. United International Ins. Co., 95 N.Y.2d 141, 711 N.Y.S.2d 141 (June 20, 2000).

If no "coverage" exists, insurer does not have to disclaim; but disclaimer is required if insurer relies on "exclusion" to the "coverage." Worcester Ins. Co. v. Bettenhauser, 95 N.Y.2d 185, 712 N.Y.S.2d 433 (June 20, 2000).

Civil Procedure, Injury and Tort Law: Brothers v. Florence (October 19, 2000- No.2 No.112) New York’s Legislature intended that the amendment to CPLR 214 (6) that shortens the statute of limitations in non-medical malpractice claims to three years, should bar claims which were accrued prior to, but were not commenced until after, the effective date of the amendment.

Second Circuit: A statute that grants citizenship to the children born abroad of
American mothers, but does not do the same for children of American fathers, has been found unconstitutional. The court found in Lake v. Reno, 99-4125, that a section of the Immigration and Nationality Act (INA) violated the right to equal protection under the law, and that the Jamaican –born son of an American father, was a citizen of the United States.

Civil Procedure: US v. Seltzer, (September 25, 2000 No. 99-6151) Under the district court’s inherent powers, a finding of bad faith is not a necessary prerequisite to imposing a sanction for arriving late to a courtroom.

Sixth Circuit: Bankruptcy: A chapter 7 debtor’s lawyer can be paid from the bankruptcy estate for work done after a trustee was appointed. This decision comes on the heels of a similar ruing from the Third Circuit. The circuits are now split 4-2 in favor of debtors’ attorneys on this question.

Virginia Supreme Court: A defendant’s act of shining a laser light in a police officer’s eye was sufficient to constitute a touching under Virginia’s assault and battery statute. For the purposes of determining whether a battery has occurred, a contact by an intangible substance such as light must be terms of its effect on the victim. Adams v. Commonwealth, 2000 WL 1376572 (Va. App.).

Florida Supreme Court: A defendant’s confession was not voluntary and should have been suppressed in a prosecution for abuse of a dead body. A detective had made an implied, if not a direct, promise that if she confessed that she committed the offense as part of a religious ritual, the defendant would be constitutionally protected and could not be prosecuted. It was clearly induced by the detective’s assurance. Albritton v. State, 2000 WL 1371303 (Fla. App. 2 Dist.).

PUBLICATIONS OF INTEREST

"Plaintiff’s Bar Trains Its Sights on Laser Eye Surgery, Popularity and Profits May Yield Shoddy Procedures," Diana Digges, Lawyers Weekly, USA, October 2, 2000.

"May It Please The Court!" by Leonard Rivkin with Jeffrey Silberfeld, details the life in the law of the founding partner of the firm, a lawyer of immense dedication and unwavering determination.

"The Legal Implications of Noncompetition Agreements in Physician Contracts," the Journal of Legal Medicine, Vol. 20, No.4, December, 1999.

"Confidentiality of Psychiatric Examinations in Criminal Cases," The Journal of Psychiatry and Law, Vol. 27, No. 2, Summer, 1999.

"When Coaches Cross The Line: Hostile Athletic Environment Sexual Harrasment," Rutgers Law Review, Vol. 52, No. 3, Spring 2000.