Friday, June 01, 2012
New York Times. Well, it's not technically about the Second Circuit, but it was published by the New York Times, which is in the Second Circuit, and it's about federal appellate judges, which include the judges of the Second Circuit, so close enough. I'm not sure I totally agree with it, but this op-ed piece, which rails against judicial opinions being written by law clerks should be of interest to those interest in the appellate procedure.
Tuesday, March 27, 2012
Standard of Review. The Second Circuit rejected the Board of Immigration Appeals' ruling that an Immigration Judge's finding concerning a future event is not fact-finding subject to clear error review. The Court noted that "[a] determination of what will occur in the futre and the degree of likelihood of the occurrence has been regularly regarded as fact-finding subject to only clear error review." The Second Circuit, however, agreed with the Board of Immigrations Appeals on its holding that de novo review applies to the ultimate question of whether the applicant for asylum has sustained her burden to establish that her subjective fear of persecution is objectively reasonable. The Court stated: "What the law's legal construct of a reasonable person would believe or do under the particular circumstances of a case is normally a question of law, the decision of which is reviewed de novo.
The decision in Huang v. Holder can be found here.
The decision in Huang v. Holder can be found here.
Thursday, February 23, 2012
On February 17, 2012, Judge Roger J. Miner of the Court of Appeals for the Second Circuit died.
Monday, October 03, 2011
Incarcertation Is Not Withdrawal. The Second Circuit has held that a party to a conspiracy can be held responsible for losses caused by the conspiracy after his incarcertation. In United States v. Leslie, the defendant arguedthat his sentence had been incorrectly calculated because certain losses caused by the conspiracy in which he had been engaged had been imputed to him and used to establish his sentence even though he had already been incarcerated at the time those loses were incurred. The defendant took the position that incarceration should be seen as withdrawal from the conspiracy. The Court held that withdrawal from a conspiracy required an affirmative act; cessation from participation in the conspiracy was not enough. Accordingly, the defendant, because he had not shown any affirmative act constituting withdrawal, had not withdrawn from the conspiracy, and the entire loss caused by the conspriacy was imputable to him for purposes of sentencing.
The decision in this case can be found here.
The decision in this case can be found here.
Thursday, September 01, 2011
Seventh Circuit. OK, it's not from the Second Circuit, but you have to read this opinion just for the first line, especially if you are an appellate lawyer.
Friday, August 05, 2011
Certified question. The Second Circuit has certified two questions to the Virginia Supreme Court. The questions are:
1. Does Virginia law permit equitable tolling of a state statute of limitations due to the pendancy of a putative class action in another jurisdiction?
2. Does Va. Code Ann. 8.01-229(E)(1) permit tolling of a state statute of limitations due to the pendency of a putative class action in another jurisdiction?
In Casey v. Merck & Co., the plaintiffs had filed a products liability claims that were governed byVirginia law after the limitations period had elapsed, but argued that the statute should have been tolled because of the existence of a class action asserting the same claims in Tennessee under the doctrine of American Pipe & Constr. Co. v. Utah. The plaintiffs claimed that Virginia recognized this doctrine. The Second Circuit felt unsure of this issue and certified the questions. The decision in Casey can be found here.
1. Does Virginia law permit equitable tolling of a state statute of limitations due to the pendancy of a putative class action in another jurisdiction?
2. Does Va. Code Ann. 8.01-229(E)(1) permit tolling of a state statute of limitations due to the pendency of a putative class action in another jurisdiction?
In Casey v. Merck & Co., the plaintiffs had filed a products liability claims that were governed byVirginia law after the limitations period had elapsed, but argued that the statute should have been tolled because of the existence of a class action asserting the same claims in Tennessee under the doctrine of American Pipe & Constr. Co. v. Utah. The plaintiffs claimed that Virginia recognized this doctrine. The Second Circuit felt unsure of this issue and certified the questions. The decision in Casey can be found here.
Tuesday, June 21, 2011
No baseball caps. The Second Circuit has upheld a District Court decision, dismissing an action by an attorney who was ordered not to wear a baseball cap and casual attire when appearing in Court. The attorney had asserted claims under the First and Fourteenth Amendments of the Constitution. The Second Circuit held that the restriction was content neutral (which the plaintiff acknowledged) and was appropriate to support the legimate goal of maintaining decorum in Court proceedings. Assuming that a constitutionally-protected liberty interest in one's personal appearance existed, the Court held that such a right was not "fundamental" and the restriction was not subject to strict scrutiny. Since there was a rational basis for the restriction, that claim was properly dismissed.
The decision in Todd v. Katz can be found here.
The decision in Todd v. Katz can be found here.
