"Reason is the life of the law; nay, the common law itself is nothing else but reason." -- Coke

"Discourage litigation. Persuade your neighbors to compromise whenever you can. As a peacemaker the lawyer has superior opportunity of being a good man. There will still be business enough." -- Abraham Lincoln

MATTERS OF INTEREST

2nd Circuit
WESTERBEKE CORP. v. DAIHATSU MOTOR CO., LTD., 8/28/02 - No. 01-9224 An arbitrator did not act in manifest disregard of New York law when it interpreted a sales agreement as a contract with a condition precedent, rather than as a preliminary agreement, and awarded expectancy damages for its breach. To read the full text of this opinion, go to: http://laws.lp.findlaw.com/2nd/019224.html

US v. THOMAS, 9/4/02 - No. 00-1593 Appeal claiming that the government's use of peremptory challenges was tainted by racial considerations in violation of Batson v. Kentucky, 476 U.S. 79, is remanded for credibility findings as to the prosecutor's proffered explanations for exercising the challenges. To read the full text of this opinion, go to: http://laws.lp.findlaw.com/2nd/001593.html

3rd Circuit
ZICCARDI v. CITY OF PHILADELPHIA 4/30/02 - No. 01-1895 Summary judgment based on qualified immunity properly denied, where paramedics moved decedent, who complained of neck injury, without stabilizing his neck; part of appeal that disputed the district court's identification of facts that are subject to genuine dispute, dismissed for lack of appellate jurisdiction. To read the full text of this opinion, go to: http://laws.lp.findlaw.com/3rd/011895.htm

8th Circuit
CASSELLO v. ALLEGIANT BANK 5/01/02 - No. 01-2197 The UCC will not preempt a common law cause of action against a depository bank for negligently handling the drawer's check; UCC transfer warranties do not run in favor of drawers, and a depository bank presenting a check for payment makes no warranty to the drawer. To read the full text of this opinion, go to: http://caselaw.lp.findlaw.com/data2/circs/8th/012197p.pdf

9th Circuit
EUNIQUE v. POWELL 8/23/02 - No. 99-56984 Statutes and regulations, authorizing denial of a passport to an applicant who was severely in arrears on child support payment, are not an unconstitutional infringement on the freedom to travel. To read the full text of this opinion, go to: http://caselaw.lp.findlaw.com/data2/circs/9th/9956984p.pdf

10th Circuit
ROSKA v. PETERSON, 9/05/02-No. 01-4057 Social workers and police officers violated plaintiffs' clearly established rights when, in the absence of exigent circumstances, they entered a home without knocking and without a warrant, seized a child without a warrant, and removed the child from his parents' custody and care without notice and a hearing. To read the full text of this opinion, go to: http://laws.lp.findlaw.com/10th/014057.html

New York Court of Appeals
IN THE MATTER OF WILLIAM C. BRANDON 4/30/02 - 97 NY2d 491 (2002) Insurers, when arguing that their insured forfeited Supplementary Uninsured Motorist coverage by failing to timely submit notice of a tort action, have the burden of demonstrating that prejudice resulted from such failure. To read the full text of this opinion, go to: http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=ny&vol=I02&invol=0046

PUBLICATIONS OF INTEREST

Rodger Citron, Backstory: A Review of Joseph Russomanno's Recent Book on the People and Events Behind Ten Important First Amendment Cases Attorney Rodger Citron reviews Speaking Our Minds, a book by Professor Joseph Russomanno that seeks to provide the human story, in the form of an oral history, behind ten historic First Amendment cases. The book covers cases involving issues ranging from press freedoms to hate speech, and from Internet "indecency" to parody. http://writ.news.findlaw.com/books/reviews/20020830_citron.html

Barton Aronson, Should Undercover Police Officers Be Allowed To Testify Anonymously? A New York Judge Says No, But A Case-By-Case Approach May Work Best Federal prosecutor Barton Aronson discusses a recent decision by a New York judge to refuse to allow the testimony of an undercover police officer that would not give his name. The Sixth Amendment grants the right to a public trial, and the right to confront witnesses by, among other things, cross-examining them. These rights, Aronson explains, can be overridden when the police have good reason to seek a closed courtroom or anonymous testimony. http://writ.news.findlaw.com/aronson/20020827.html

Daniel A. Farber & Suzanna Sherry, Desperately Seeking Certainty. The Misguided Quest for Constitutional Foundations Two law professors assess the practitioners of constitutional theory.

BRIEF RELIEF MATTERS IN PROGRESS

1. Obtaining information. Court rules and forms for pro hac vice application in South Carolina.
2. Memo on fraud defects in construction in condo development in Wyoming.
3. Preparation of New York Contract of Sale for Real Estate and other documents.
4. Response to Order to Show Cause in New York for removal of attorney for failure of client to pay fees.
5. Counsel research on "presumption of incarceration."
6. Ethics research on attorney advertising.
7. Texas - federal tort claim and statute of limitations.
8. Cases from INS and related matters.