20 December 2006
The student also wondered whether this court was ignoring binding precedent that says the death penalty does not violate the U.S. Constitution. The quick answer is probably not. Past U.S. Supreme Court cases have set forth tests to be used to determine whether the process used to carry out the death penalty in a given state violates the Constitution. Of course the government would try to draw analogies to cases upholding procedures used for the death penalty, while the defense (petitioner) would try to draw analogies to those cases that found death penalty procedures to violate the U.S. Constitution. Capital punishment in the United States is not automatically constitutional, and if someone challenging a procedure can find enough flaws with the way it is carried out, which appears to be the case in California, they can get a court to say e the procedures violate the U.S. Constitution and still be in accord with Supreme Court precedent.
11 December 2006
04 December 2006
30 November 2006
A few hours later, they all met for dinner (Wynn and his friend who witnessed the accidental destruction of the painting), and Wynn was in a cheerful mood. “My feeling was, It’s a picture, it’s my picture, we’ll fix it. Nobody got sick or died. It’s a picture. It took Picasso five hours to paint it.” Mary Boies ordered a six-litre bottle of Bordeaux, and when it was empty she had everyone sign the label, to commemorate the calamitous afternoon. Wynn signed it “Mary, it’s all about scale—Steve.” Everyone had agreed to take what one participant called a “vow of silence.” (The vow lasted a week, until someone leaked the rudiments of the story to the Post.)Since the New York Post broke the story of this $40 million blunder, Wynn's guests have been speaking with whomever will listen. But they promised not to talk about it. Is this an enforceable promise?
29 November 2006
Over recent decades, the number of courtroom trials has dropped dramatically in both federal and state courts, according to numerous national studies. Because of the high cost of going to trial, fear of unpredictable jury verdicts, and other factors, many cases instead are being resolved through settlements, mediation, and arbitration, which litigants often prefer to the emotional ordeal of going to court.The article goes on to note that based on 2002 numbers, only 1.8% of all cases filed in U.S. Federal Court actually go to trial!
But the disappearing trial has created a troubling ripple effect for the legal profession: rapidly dwindling opportunities for lawyers to hone their litigation skills, resulting in a generation of young attorneys who have rarely -- if ever -- stepped foot in a courtroom.
28 November 2006
25 November 2006
No one keeps national figures on jury duty no-shows, but the American Judicature Society considers the problem an epidemic in some communities, especially large urban areas such as Miami, Houston and Atlanta, where no-show rates routinely top 50%, says David McCord, a society spokesman.In short, people don't want to serve on juries. Is the right to a jury still meaningful if the jury pool is made up only of people who wish to serve on a jury?
22 November 2006
14 November 2006
The young men charged the studio with fraud; rescission of contract; statutory and common law false light, for framing their comments to make them appear "insensitive to minorities"; appropriation of likeness; and negligent infliction of emotional distress.To think, you can sue someone for "tricking" you into revealing your true feelings. No wonder the world thinks Americans lawsuit happy.
08 November 2006
07 November 2006
These dangerous "grassroots" (read: carefully and professionally coordinated) measures are boldly and brashly designed to scare judges away from making tough and sometimes unpopular decisions about some of the most controversial issues of our time. They are designed to make the judiciary bend to the will of the masses.Several FFA classes, most notably Common Law Legal Systems and U.S. Constitutional Law, consider the importance of an independent judiciary in the common law legal system, especially in the United States where the government is built upon the idea of separation of powers. These voter initiatives are aimed squarely at making judges far less independent, and they could change the way Americans are governed in the future. What could be more important than that?
03 November 2006
I came across this fascinating report concerning privacy protections in countries across the world. The report, conducted by a UK privacy advocacy group called Privacy International, ranks the U.K. as a "surveillance society" and the United States as an "extensive surveillance society." I realize that a discussion of privacy protection is only tangentially related to subjects covered in the FFA, but I couldn't help posting this. Simply fascinating stuff. As an aside, and it probably comes as no surprise to FFA students, Germany ranks near the top when it comes to privacy protection. But that may soon be changing.
01 November 2006
damages awarded in a lawsuit as a punishment and example to others for malicious, evil or particularly fraudulent acts.And even before starting the FFA, many students have read about the huge damage awards given out by American juries to people who smoked all their lives, for example, and are now suing because smoking adversely impacted their health. Many students find these awards to be excessive, especially when they are given in cases involving people who have engaged in activity, smoking for example, that everyone knows is dangerous.
Well, many American also feel these awards have become excessive and just yesterday the United States Supreme Court took up the question concerning what kind of limits can be placed on juries who hand out these awards. The case in question comes from Oregon and involves a person who smoked for 47 years and eventually died of lung cancer in 1997. A jury awarded the smoker's family $800,000 to compensate for their loss, and then slapped a $79.5 million punitive damage award on the cigarette company Philip Morris.
This case is instructive on a variety levels for FFA students. First, it shows that the courts can place limits on juries. Second, it discusses how punitive damages are used and possibly misused in the civil law system. Finally, it hints at something of which many students might not be aware. Higher courts often send an appeal back to the lower court for further review. Generally, either the appeals court doesn't understand the lower court ruling and wants further classification (see Justice Souter's comments in the article to which I have linked above), or the appeals court wants to give the lower court a "second chance" to apply the law properly.
Many Court observers said this particular case would be one of the most important upon which the Court would rule this year. Now it looks like the Court will simply send this matter back to the Oregon Supreme Court for further clarification.
31 October 2006
The release form seems to cover all the bases, but it's not clear if it precludes all legal action. A participant might claim that he was tricked into signing the contract under false pretenses.An interesting question in light of the emphasis placed upon volition in determining whether a valid contract exists.
30 October 2006
26 October 2006
If there is a moral to the story about a contract dispute between Canadian companies, this is it: Pay attention in grammar class. The dispute between Rogers Communications of Toronto, Canada’s largest cable television provider, and a telephone company in Atlantic Canada, Bell Aliant, is over the phone company’s attempt to cancel a contract governing Rogers’ use of telephone poles. But the argument turns on a single comma in the 14-page contract. The answer is worth 1 million Canadian dollars ($888,000).