Wednesday, June 30, 2010
Tuesday, June 29, 2010
What are the rules for recovery in maritime actions when two ships collide? I may read all the published Ninth Circuit opinions, but truthfully, I don't really know.
Which is all just a way of saying that I'm no maritime expert. In the slightest.
Still, I guess I can have a sense of what the right rules should be. Let's take two hypotheticals, for example.
(A) Two ships nearly collide, allegedly due to the negligence of the first. The first ship comes really, really close to the second, but they don't hit. But the near-collision freaks out one of the passengers on the second, who suffers severe emotional distress. Can the passenger sue under maritime law?
(B) Slight variant. Same factual setting as the first. But add that after the first ship narrowly avoids the second, it hits a third ship. The passenger on the first ship didn't see or hear that crash, but did participate in the search for survivors. Can the passenger sue now?
Doctrinally, we're asking what the scope of recovery should be for negligent infliction of emotional distress under maritime law. We're creating federal common law. What should the rule be?
This is what state courts do all the time, but we're slightly less used to it in the federal system. The "right" answer may also require us to parse through Supreme Court and circuit precedent in likely analogous area; i.e., FELA cases. Which I definitely haven't, and you probably haven't either. So without reading those cases, I'm not sure that I am confident of the "correct" way to decide this case.
That admission aside -- and in full recognition of my manifest ignorance of maritime law -- I will say that if we were writing on a blank slate, I think that Judge Hall has a point here. She argues that the plaintiff in Scenario 2, which (as you may have guessed) is not a hypothetical, should not be allowed to recover. Whereas Judge Noonan writes an opinion joined by Judge Thomas that holds that these facts indeed state a cognizable cause of action under federal maritime law, and for that reason reverses the district court.
So, again, I'd have to read the cases. But without doing so, I would say that I might lean in Judge Hall's corner on this one. Even if FELA cases -- which are deliberately broadly remedial -- may do something else.
I'm just a bit worried about potentially expansive maritime liability if NIED allows recovery for near-misses. Does it keep me up at night? Hardly. But it does seem like a more limited theory of recovery might be more on the mark.
At least for someone, like me, who knows utterly nothing. But who occasionally looks out at the ocean.
For whatever that's worth.
Monday, June 28, 2010
Here's an example of what you should not do.
Filing a lawsuit against the arbitrator as a means of trying to disqualify him ain't gonna work. Plus, it might make hiim . . . uh, a bit displeased. Sufficiently displeased that a $6 million-plus judgment against you in the second lawsuit won't be at all surprising.
Not going to work.
Word to the wise.
Friday, June 25, 2010
Thursday, June 24, 2010
Wednesday, June 23, 2010
Tuesday, June 22, 2010
Monday, June 21, 2010
"Today we become the only court in the country to hold that a state court may adjudicate a constitutional claim 'on the merits' by overlooking it, and then have its carelessness rewarded with AEDPA’s presumption that its adjudication was good enough for government work. We defer to a decision the state courts never made to reach a result that the state’s highest court disagrees with. We fail to give effect to the plain meaning of the Confrontation Clause—one of the best-established principles of Anglo-American law—on the ground that it isn’t 'clearly established.' Any one of these errors would be remarkable, but their combination produces a truly spectacular miscarriage of justice.
The purpose of AEDPA is to allow state courts to operate in good faith. So, in the ordinary case, when a defendant has an unbiased judge and the state courts take his constitutional claims seriously, we must defer even if we disagree on the merits. But this isn’t an ordinary case. The state trial judge coerced a key witness into testifying and the state appellate judges never addressed the key claim on appeal. Cases like this are the reason federal habeas exists. When a federal constitutional claim falls through the cracks of a state’s criminal justice system, federal courts must be there to catch it. No one else can. Charles Murdoch certainly deserved better from the California courts. Ultimately, though, it is we who surely did let him fall."
Tell us what how you really feel, Alex.
Thursday, June 17, 2010
Wednesday, June 16, 2010
Tuesday, June 15, 2010
Monday, June 14, 2010
But did your Monday morning see the Ninth Circuit reinstate two criminal felony charges against you?
That's how prominent Los Angeles attorney Pierce O'Donnell started his work week.
The district court thought that the relevant statute didn't prohibit O'Donnell from giving $26,000 to the Edwards for President campaign through 13 "straw donors," so dismissed the first two counts of the indictment against O'Donnell. The United States disagreed, and the Ninth Circuit agreed with the United States. So back to defending a couple of federal felony counts for O'Donnell.
Sort of makes your not-so-fun Monday morning pale in comparison, eh?
Friday, June 11, 2010
It's hard to prove that your results came back positive when the only dude who can confirm that the samples came from you -- the guy you gave 'em to -- refuses to testify. Sure, as a result, he's in jail on contempt charges. But there are two people who can authenticate those samples, one of 'em who refuses to testify and the other of which (you) has a right not to. The U.S. can't use the testimony of a guy saying that he was told by X that the samples came from Y. That's hearsay. And it can't use the lab test results that have your name on 'em for the same reason.
Judge Bea dissents, but it outvoted by Judges Schroeder and Reinhardt.
Consider this home run number 763 for Bonds. Just don't forget the asterisk.
Mother does indeed have a green card. One problem. Unbeknownst to the kids, she got it from a dude inside the immigration office that was selling them on the side.
So years after the kids immigrate, the U.S. discovers this scheme. People get sent to prison, participants get kicked out, etc.
What about the kids? Everyone agrees they're totally innocent of wrongdoing. But everyone also agrees they were only able to come here in the first place derivatively through Mother, who was here by fraud. However, that was years ago, and the kids have now settled into the United States. What to do with them?
(A) Kick 'em out.
(B) Kick 'em out, but give the Attorney General discretion to let 'em stay.
(C) Let 'em stay.
Here's what the Ninth Circuit does.
Thursday, June 10, 2010
Wednesday, June 09, 2010
Tuesday, June 08, 2010
Monday, June 07, 2010
Friday, June 04, 2010
Thursday, June 03, 2010
But when the neighbor below you in the condo calls the cops because she hears "the high pitched crying of a dog in pain" in your unit, and when you tell the police that you don't have any dogs but they hear the sound of a dog wimpering, it seems to me like the police can enter. So when they find a dying dog on your patio and a dead dog in your freezer, they get to arrest you, and you can't legitimately complain about the search.
Seems so to the Court of Appeal as well.
Exigent circumstances aren't just for people.
Wednesday, June 02, 2010
Marcus W. is a sixteen-year old minor who has sickle cell anemia and has had multiple strokes as a result, starting when he was a very young child. The standard treatment for people in his condition is periodic blood transfusions. Marcus' parents, however, are Jehovah's Witnesses who have religious objections to this procedure, and Marcus eventually shares their faith. Doctors try alternative, non-transfusion therapies, but they fail; indeed, Marcus has a stroke during one of these alternative procedures. Still, Marcus and his parents object.
So the County files an application with the juvenile court for continuing blood transfusions. Marcus and his parents object, saying that even though Marcus is a minor, his beliefs should be taken into account -- the "mature minor" doctrine -- and transfusions not ordered. The trial court disagrees. So up to the Court of Appeal it goes.
This is a standard law school tale. It's the usual story about competing religious and secular values as well as their application to minors. A good story, and one worth thinking about. What would you do as the doctor, the parent, the County, or the judge?
But this one also has a twist. Once it goes up, the Court of Appeals notices that the statutory scheme expressly allows emergency petitions like these only in certain specified conditions, none of which are expressly met here. The usual way that these things get filed is because the County files a dependency petition on behalf of the child, which is one of the specified conditions. But not only is this very burdensome, but it's also bad for the parents, since it both stigmatizes them and may result in taking away some additional rights over the child. So for Jehova's Witness cases in which all the County wants is a blood transfusion, for the good of everyone, the County's policy is to just file the request rather than invoking a more expansive procedure.
Marcus and his parents don't object below, but the Court of Appeal raises this issue sua sponte, and holds that the County has to file a dependency petition. So sends it back down.
Think that's the right way to deal with these things?
Does it matter to you analysis that by the time the case actually gets back down to the trial court and resolved there, Marcus will be 18?
Something the opinion doesn't mention, but that's easy to figure out.