Research Associates
	Volume 13, Number 9       Our 24th Year   September  2005

“Power always thinks it has a great soul and vast views beyond the comprehension of the weak; and that it is doing God’s service when it is violating all his laws.”

--- John Quincy Adams (1767-1848), 6th U.S. President, Democratic

“Even when laws have been written down, they ought not always to remain unaltered.”

--- Aristotle (384-322 BC), Greek philosopher

“The Constitution of the United States is not a mere lawyers’ document; it is a vehicle of life, and its spirit is always the spirit of the age.” --- Nadia Boulanger (1887-1979), French music teacher

DECISIONS OF INTEREST

SECOND CIRCUIT

Yuan v. US Dept. of Justice, No. 02-4632, 02-4635 (2d Cir. July 26, 2005)
A parent or parent-in-law of a person subject to a coercive family planning policy is not eligible for asylum for that reason. http://caselaw.lp.findlaw.com/data2/circs/2nd/024632p.pdf

Allianz Ins. Co. v. Lerner, No. 04-2240 (2d Cir. August 02, 2005)
In an insurance dispute resulting from an accident involving a leased car, defendant-lessee's insurance company breached its duty to defend since the parties' policy obligates the carrier to defend an insured sued as a result of a covered auto accident.  http://caselaw.lp.findlaw.com/data2/circs/2nd/042240p.pdf

THIRD CIRCUIT

Santiago v. GMAC Mortgage Group, Inc., No. 03-4273 (3d Cir. August 04, 2005)
The Real Estate Settlement Procedures Act (RESPA) does not include a cause of action for overcharges imposed by a mortgage broker for settlement services rendered in connection with a mortgage loan; however, RESPA does provide a cause of action for markups imposed by a broker in this situation. http://caselaw.lp.findlaw.com/data2/circs/3rd/034273p.pdf

FOURTH CIRCUIT

Cox v. City of Charleston (07/26/05 - No. 03-1782)
A local ordinance, which prohibits assembly on the streets or sidewalks of the city, is facially unconstitutional to the extent that it prevents small gatherings from protesting in a public forum. http://caselaw.lp.findlaw.com/data2/circs/4th/031782p.pdf

SIXTH CIRCUIT

Flaim v. Medical College of Ohio (08/17/05 - No. 04-3493)
Dismissal of plaintiff's challenge to his expulsion from medical college is affirmed where defendant-college's procedural approach was consistent with the bare-minimum requirements of due process. http://caselaw.lp.findlaw.com/data2/circs/6th/043493p.pdf
 

SEVENTH CIRCUIT

Fifth Third Bank v. CSX Corp. (07/22/05 - No. 04-2780)
In a wrongful death action resulting from a train-car collision, dismissal of plaintiff's suit is affirmed where the claim, alleging that the railroad warning devices were inadequate, is preempted by the Federal Railroad Safety Act. http://caselaw.lp.findlaw.com/data2/circs/7th/042780p.pdf

NEW YORK

Kevin Bernard, et al, v. Musah Mumuni, et al., 4897 Index 16778/02, 1st Department
Where the owner of a vehicle entrusts it to another person without setting forth any express restrictions as to the vehicle's use, and the person entrusted with the vehicle permits an unlicensed third person to drive it, the financial burden of an accident caused by the unlicensed driver's negligence should fall on the owner, who put in motion the chain of events leading to the accident.

For copy of opinion contact RESEARCH ASSOCIATES jmf@resaearchassociates

MATTERS OF INTEREST

Anita Ramasastry, “Do Banks and Other Businesses have a Duty to Notify Customers of Computer Security Breaches?”
If someone hacked into a computer database and stole your credit card number, would you want to be immediately notified? Or would you be happy to be informed only if, and when, thieves used your number to make unauthorized purchases? http://practice.findlaw.com/cyberlaw-0805.html

Paul Horwitz, “Grutter’s First Amendment,” Boston College Law Review, Volume XLVI, Number 3, May 2005.

Richard Klein, “Due Process Denied: Judicial Coercion in the Plea Bargaining Process,” Hofstra Law Review, Volume 32, Number 4.

Mary C. Warner, “The Trials and Tribulations of Petty Offenses in the Federal Courts,” New York University Law Review, Volume 79, Number 6.

“GPS Tracking Technology: The Case For Revisiting Knotts and Shifting the Supreme Court’s Theory of the Public Space Under the fourth Amendment,” Boston College Law Review, Volume XLVI, Number 3, May 2005.

BOOK REVIEW

Williamson, Sam, “Can Novels Educate Us About Complex Penalty Issues?”

Williamson reviews two recent novels that involve the death penalty: Richard North Patterson's "Conviction," and Kermit Roosevelt's "In the Shadow of the Law." Williamson finds that Patterson's passionate polemic is involving and compelling, while Roosevelt, at times, lacks realism. Both books are ambitious -- aiming to not only portray a death penalty case, but to delve into some of the specifics of habeas litigation and even of the Anti-terrorism and Effective Death Penalty Act (AEDPA).

http://writ.news.findlaw.com/books/reviews/20050729_williamson.html

BRIEF RELIEF - MATTERS IN PROGRESS

1. New York – request asset inventory from executor.
2. Florida – security agreement and financing statement.
3. Dischargeability of assault money judgment in bankruptcy.
4. I.R.S. taxes and farm profit motive.
5. Pennsylvania – will and durable power of attorney.