New certified questions. The Second Circuit has certified five questions to the New York State Court of Appeals regarding the application to summary judgment of section 388(1) of the New York Vehicle and Traffic Law. The questions are:

1. Under New York law, are uncontradicted statements of the both the owner and the driver of a car that the dirver was operating the vehicle without the owner's permissions sufficient to warrant a court in awarding summary judgment to the owner?

2. If no, can additional circumstantial evidence such as the contemporaneous accident reports submitted by the owner tip the balance and warrant a court in awarding summary judgment despite the interested nature of the sources?

3. If no, is the uncontradicted testimony of the driver and the woner that the driver was operating the vehicle without permission, even if not sufficient for summary judgment, sufficient at a trial to overcome the statutory presumption of permissive use, thereby placing the burden on the plaintiff to prove permissive use at trial?

4. Even if the concontradicted testimony of the dirver and owner that the use of the vehicle was without permission is not by itself enough to rebut the presumption of permissive use, is the addition of such further evidence as contemporaneous accident reports by the ownersufficient to do so, with the result at trial that the burden of proving permissive use will rest on the plaintiff?

5. Is the answer of any of the previous questions affected by the absence of evidence that the defendant (Amtrak) reported the unauthorized use of its vehicle to any law enforcement agency?

The decision in Country Wide Insurance Co. v. National Railroad Passenger Corp. a.k.a. Amtrak can be found here.

Bad character. An non-citizen sought suspension of deportation. However, prior to that she had attempted to obtain asylum and had made false statements in her testimony. The Second Circuit held that such statements could constitute evidence that she was not of good character, which would preclude the relief she sought. The decision in Medina v. Gonzales can be found here.

Prisoner for a Day. Susan Godding was convicted of the embezzlemant of almost $366,000 from her employer, but was sentenced to one day's imprisonment, five years' supervised reliease, with six months in hom confinement, and full restitution. The Government appealed this sentence. The Second Circuit remanded the case to the District Court, noting that the Court would be required to consider, among other things, the need for the sentence imposed "to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense." The decision in United States v. Godding can be found here.

Habeas Proceeding is Civil. Well, it should come as no surprise that a habeas proceeding is a civil action, but the question in Vacchio v. Ashcroft is whether its a civil action within the meaning of the Equal Access to Justice Act, which would allow the plaintiff to recover attorneys' fees. The proceeding at issue was "a petition for a writ of habeas corpus challenging an immigration detention." the Court found that it was a civil action under the Act and that the plaintiff was a prevailing party, but because the Government's position was substantially justified, and that the plaintiff was not entitled to fees. Judge Oakes issued a short dissent. The decision can be found here.

You gotta sign. Sarhank had a contract with one of Oracle Corp.'s subsidiaries. It sought arbitration not only with the subsidiary, but with Oracle itself. Although Sarhank had an arbitration agreement with the subsidiary, Oracle had never signed such an agreement. The arbitrators (under Egyptian law) found that Oracle was bound to arbitrate and rendered an award against both Oracle and the subsidiary. Sarhank sought to enforce the award in America under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards. The Second Circuit held that it was not bound by the finding of the arbitrators as to whether Oracle was bound by the arbitration clause and found that the award could not be enforced as Oracle had not agreed to arbitrate. The decision can be found here.

I thought this was over. Well, Judge Guido Calabresi's remarks comparing Bush v. Gore to the use of legitimate institutions by fascist leaders is back in the news. The Second Circuit's Judicial Council has determined that the admonition he received for the remark by the chief judge was sufficient punishment. An article on this determination can be found here. This is old news. You'd think the Judicial Council would have something better (or at least more timely) to do.

Certified Question. The New York State Court of Appeals has answered a certified question regarding common law copyright under New York law of sound recordings produced prior to 1972 (at which date sound recordings became subject to statutory copyright). The decision in Capitol Records, Inc. v. Naxos of America, Inc. can be found here. C.E. Petit of Scrivener's Error has some comments on the case here.

New case for the Supremes? Occasionally, I will point out a Second Circuit case that I think might be picked up by the Supremes. The case of Abdul-Malik v. Hawk-Sawyer might be such a case, although procedurally it might not make the cut (if certiorari is even sought). The appeal was dismissed by the Second Circuit on the ground that it was meritless. But that's only Second Circuit precedent. The Court noted that there is a sharp dispute among the circuits and suggested congressional attention.

The question is how to treat prisoners sentenced first in federal and then in state court, and the phenomenon (in some circuits) that neither the state nor the federal court can run those sentences concurrently.

The decision can be found here.

Clarett appeal. The Supreme Court has denied certiorari in the Clarrett case, challenging the eligibility rules of the NFL. For more info, click here.