Research Associates
	Volume 13, Number 10       Our 24th Year   October  2005

“Common sense often makes good law.”

--- William Orville Douglas (1898-1980), American jurist, associate justice U.S. Supreme Court

“The law is a horrible business.” --- Clarence Seward Darrow (1857-1938), American criminal lawyer

“Our defense is not in our armaments, nor in science, nor in going underground. Our defense is in law and order.” --- Albert Einstein (1857-1955)

DECISIONS OF INTEREST

SECOND CIRCUIT

US v. Gonzalez, No. 03-1356 (2d Cir. 8/22/05)
Defendant's guilty plea was inadequate to support conviction on an aggravated drug charge where he had been misinformed as to his right to have the statutory drug quantity proved to a jury rather than the court. http://caselaw.lp.findlaw.com/data2/circs/2nd/031356p.pdf

THIRD CIRCUIT

DiGiacomo v. Teamsters Pension Trust Fund, No. 04-3510 (3d Cir.)
For accrual of benefit purposes, ERISA prevents pension plans from denying credit for pre-ERISA service time accrued prior to a break-in-service and, consequently, all years of service must be taken into account in calculating an employee's accrued benefit. http://caselaw.lp.findlaw.com/data2/circs/3rd/043510p.pdf

SIXTH CIRCUIT

A former husband has no right to keep an erroneous refund the IRS sent him when it was based on his former wife's overpayment. The court vacated the ruling that the refund is the wife's property because that issue should be decided under state domestic relations law.

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

EIGHTH CIRCUIT

Biby v. Bd. of Regents, No. 04-3878 - 8/22/05
Plaintiff's constitutional rights were not violated by the search of his office computer where plaintiff failed to show he had a reasonable expectation of privacy in his workplace computer. http://caselaw.lp.findlaw.com/data2/circs/8th/043878p.pdf

NINTH CIRCUIT

U.S. v. Scott
The Court ruled that even if a defendant agrees to warrantless searches in exchange for pretrial release, police still can't search him without probable cause. The panel says its opinion is one of first impression among all the federal circuit courts.

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

NEW YORK APPELLATE DIVISION

Court ruled that a man who killed an intruder in his home in self-defense is not entitled to insurance defense in a wrongful death action. The panel strictly construed the insurance policy language in holding that because the defendant shot the decedent at close range with a 12-gauge shotgun, the action triggered an exception for incidents that are "expected or intended" by the insured.

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

TAX COURT

John M. Jerose et ux. v. Commissioner, T.C. Summ. Op. 2005-132, No. 13606-03S
The Tax Court, in a summary opinion, has held that amounts paid to an individual under an employer-provided disability policy and computed with reference to her earnings, not with reference to the nature of her injury, are includable in her income.

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

MATTERS OF INTEREST

The federal judiciary's policy-making board endorsed a sweeping rule change that would allow lawyers to cite unpublished opinions in federal appeals courts nationwide as of 2007, ending a practice that brought charges of a hidden justice system against major appellate courts.

For copy of report contact RESEARCH ASSOCIATES jmf@researchassociates.net

Tracking Every Move You Make: Can Car Rental Companies Use Technology to Monitor Our Driving? A Connecticut Court’s Ruling Highlights an Important Question

By Anita Ramasastry

Ramasastry discusses how private companies have used -- and may misuse -- information from GPS systems in rental cars. Ramasastry focuses on a Connecticut case in which the state's Supreme Court evaluated a rental car company's contractual "wear and tear" charge of $150 -- incurred by the driver every time that, according to GPS data, a car was driven at 80 miles or more an hour, for two minutes or more. The Court found that the charge was not reasonable, in light of the much lower actual cost of the wear and tear on the car. Ramasastry also considers the possibility that GPS-related information may be used not only to overcharge customers, but also to infringe privacy by tracking customer movements.

http://writ.news.findlaw.com/ramasastry/20050823.html

Justice Stevens Adds Fuel to the Fire Over the New London Eminent Domain Case

By Michael C. Dorf

Dorf discusses Justice Stevens's recent remarks, about the recent, controversial Takings Clause decision he authored -- which allowed New London, Connecticut to force the sale of private homes to a private development. Stevens made clear that his constitutional judgment in that case was "entirely divorced from my judgment concerning the wisdom of the program." Dorf points out the nuances of Stevens's remarks, and notes that the Court's decision may actually end up being pro-, not anti-, free market.

http://writ.news.findlaw.com/dorf/20050829.html

BRIEF RELIEF - MATTERS IN PROGRESS

1. New York – draft of complaint for hospital and medical malpractice.
2. Material regarding complaint to abate a nuisance and damages.
3. Research as to effect of sections of Illinois Insurance Law.
4. Bankruptcy cases as to exclusion of IRA from estate.
5. Effect of holographic will and ademption of gift of real property.
6. Memo on professional misconduct of attorney in meeting with opposing client without his attorney to revise settlement agreement.
7. Opposition to approval of arbitrator award.