Off topic. I was in my local Barnes & Noble yesterday and picked up a copy of Richard Kluger's Simple Justice, which has been reissued in a nice trade paperback. The book is a fascinating study of Brown v. Board, probably the best history of a famous case that I have ever read (and I've read a lot of them). This new edition was released to coincide with the 50th anniversary of the case, and contains some new material. Highly recommended.

Well, the Second Circuit has started issuing full opinions again. Yesterday, the Court rendered a decision in Gold v. Deutsche Aktiengesellschaft. In that case, Gold, a homosexual man, broght an action in which he alleged sexual harassment against his employer. Gold, however, had signed a Form U-2, which mandated arbitration of all claims. Gold asserted that such claims were not subject to arbitration, citing cases from the Ninth Circuit and Massachusetts. The District Court sent the case to arbitration, where, after 30 sessions, the arbitration panel found for the defendants and dismissed the claims. Gold went back to Court, continuing to assert that his claims should be heard in Court. The District Court disagreed and dismissed his action. The Second Circuit affirmed. First, it held that sexual harassment claims were subject to arbitration based on prior precedent in the Circuit. It did not find special circumstances warranting invalidating the arbitraion clause. Gold had not read the Form U-4 carefully nor did he question it. That was his responsibility. The case can be found at the Second Circuit website. It was decided on April 21, 2004.

I'm mortified by my failure to post for a while, but it's not my fault. The Second Circuit hasn't issued a full opinion since April 14, if I'm not mistaken. The most recent rash of cases was on April 15, and they were all summary decisions. Don't worry, folks, once the Second Circuit starts cranking out the decisions again, you'll read about it here.

In United States v. Nucci, the Second Circuit considered an issue of first impression in the Circuit -- whether it was improper to order a number of defendants to pay restitution to a victim, where the cumulative effect of the orders would be that the victim would receive a windfall. Nucci argued that the Court should have apportioned the restitution among the defendants, rather than ordering each to pay the full amount, or limited the total amount that the victim could receive. The Court stated that is was within the District Court's discretion to apportion the restitution under the statute, and that any restitution obligation may be ordered to be joint and several. The Court noted that nothing in the statute precluded double recovery by a victim in the criminal context, nor does it expressly state that the defendant's restitution obligation ceases upon the victim having been made whole by receipt of restitution payments from other co-defendants. The Second Circuit, however, joined the Seventh and Ninth Circuits in holding that the statutes, although they do not explicitly say so, bar the recovery by the victim of any sum above his or her actual loss. The Court stated that to hold otherwise would be in derogation of the common law. The Court was unwilling to allow for such a windfall in the absence of clear and unequivocal language from Congress. The decision can be found on the Second Circuit website. It was decided on April 14, 2004.

In a case where Judge Calabresi concurs with himself (it's true; I couldn't make that up), the Second Circuit has held that the provisions of the Antiterrorism and Effective Death Penalty Act, which took away from the petitioner, who was being deported after serving a term of incarceration on a drug offense, the right to seek discretionary relief from the Attorney General, could not be applied retroactively in this case. The petitioner could have sought such relief at the time of his arrest, but chose to wait to a later time, expecting that he would have a stronger case after he had a record of rehabilitation after serving his sentence. Hence, his settled expectations were frustrated when the new legislation took away such rights. Since the Act did not clearly state that it was to be retroactive, the Court held that it could only be applied retroactively if it did not frustrate settled expectation. The Court noted that the district court, which had granted habeas relief to the petitioner on the ground that the Act could not be applied to criminal conduct that preceded the passage of the Act was wrong. It remanded the case to the District Court to determine whether the petitioner could make an individualized showing that he had relied on his right to make an application for discretionary relief at a later time in waiving his right to do so at an earlier time. As noted, Judge Calabresi wrote the decision and issued a concurring opinion, in which the other panel members did not join, which provides "an explanation of the current state of the law in this complicated area, and how it relates to [this] case." The decision in Restrepo v. McElroy can be found here. Unfortunately, I cannot get a direct link to the concurring opinion, but it can be found at the Second Circuit site.

The question of whether the Probation Department's monitoring of a convicted pornographer's computer violates the Fourth Amendment arose in United States v. Lifshitz, a case decided by the Second Circuit on March 30, 2004. The case, authored by Judge Katzmann, was one of first impression in that the Second Circuit had "never evaluated the conformity of special conditions of probation or supervised release with the Fourth Amendment." The Court noted that, under Supreme Court precedent, to allow a special needs search in the absence of probable cause or a warrant, (1) the government must allege a special need, (2) there must be a diminished expectation of privacy and (3) the search must seek a minimum of intrusiveness coupled with maximum effectiveness so that the searches bear a close and substantial relationship to the government's special needs. The Court remanded the case to the district court to evaluate the privacy implications of the proposed computer monitoring techniques as well as their efficacy as compared with computer filtering, and then to impose a condition. The decision can be found here. Stay tuned for future developments.