It's Back! The Legal Research and Writing Blog, which has been inactive since March, is back in service with new posts. Praise the Lord!

Danger. The Second Circuit upheld the District Court's decision dismissing the action of a Transit worker who was fired for making remarks that indicated that he might be violent. The Court assumed that the remarks of the worker were of public interest, but, applying a balancing test, found that the Transit Authority's interest in keeping violent individuals off its work force outweighed the worker's First Amendment rights.

The decision in Blackman v. New York City Transit Authority can be found here.

Abuse of Discretion. The Second Circuit has held that the Board of Immigration exceeded its discretion in denying a motion to reopen a hearing where the motion was based solely on facts of which the Board had taken judicial notice. The petitioner had wanted to rebut the inferences that the Board had made based on the noticed facts.

The Court's decision in Chhetry v. U.S. Department of Justice can be found here.

Remanded. The Second Circuit had certified the question of whether New York law extended the tort of conversion to electronic data. The New York State Court of Appeals accepted the question and answered that conversion under New York law did extend to electronic data. In light of this decision, the Second Circuit, in Thyroff v. Nationwide Mutual Insurance Co., has vacated the District Court's dismissal of the plaintiff's conversion claim and remanded the case to that court for further proceedings.

Bootlegging. The Second Circuit held that Congress had the power to promulgate the statute banning bootlegging of unauthorized recordings of performances. The Court held that such legislation was valid under Congress's power arising from the Commerce Clause.

The decision in United States v. Martignon can be found here.

"Lawfully admitted." The Second Circuit has held that a lawfully admitted permanent resident, who obtained that status by fraud or mistake has not been "lawfully admitted for permanent residence" for purposes of section 212 of the Immigration and Nationality Act, which allows for a waiver of inadmissiblity.

The decision in De la Rosa v. United States Department of Homeland Security can be found here.

Benefits. The Second Circuit has decided a case raising the issue of whether the entire amount of a state law settlement covering both disability and death benefits may be credited against an award of death benefits under the Longshore and Habor Workers' Compensation Act. The Court held that it may not and that only the portion of the settlement funds directed toward state law death benefit cliams may be credited. The case was remanded to the Benefits Review Board for fact-finding regarding the allocation of the petitioner's prior state settlement between death benefits and disability benefits, noting that the burden of proof would be on the party asserting the credit.

The decision in Barscz v. Director, Office of Werkers' Compensation Programs can be found here.

Two Step Confession. The Second Circuit has ruled that a inculpatory statement made after the criminal defendant was Mirandized was admissible even thought the authorities had obtained a earlier inculpatory defendant from the defendant before he had been Mirandized. The Court held that a deliberate two-step strategy had not been used by the government; such a strategy would have warranted suppression under Supreme Court precedent.

The decision in United States v. Carter can be found here.

Default. The Second Circuit vacated a default judgment on a counterclaim where (1) it found the showing that the plaintiff had failed to produce documents was willful and (2) the court had not considered lesser sanctions before granting the default judgment.

The decision in Shcherbakovskiy v. Da Capo Al Fine, Ltd. can be found here.

Certified question. The Second Circuit has certified a question to the New York State Court of Appeals relating to long-arm jurisdiction under New York law. The certified question was:

Does CPLR 302(a)(1) confer jurisdiction over the defendant, a Saudi businessman who was named as a supporter of terrorism in a New York author's book.

The decision in Ehrenfeld v. Mahfouz can be found here.

Warrantless Search. The Second Circuit has held that a search where the police lured two individuals away from their car so that they could conduct a warrantless search was constitutional. The court held that the search fell within the automobile exception.

The decision in United States v. Howard can be found here.

It's nice to be noticed. The Adjunct Law Prof. Blog made mention of Second Opinions, which, of course, gives me a little visability. And so I'd like to return the favor. Go visit that blog right now. Oh, and by the way, the post in which this blog is mentioned is right on

Repugnant. The Second Circuit decided that it couldn't decide whether allowing a party to enforce two foreign judments was repugant to the public policy of New York, and remanded the case to the District Court.

The decision in Sarl Lewis Feraud International v. Viewfinder, Inc. can be found here.

Interesting Program. How Appealing referred its readers to this article on a program to help appellate attorneys hone their skills and prepare for oral argument. Somebody should do something like this in New York. (Maybe I will.) Thanks to Howard Bashman of How Appealing for cluing me in to this program.

In today's Law Journal. Extraordinary Measures Reduce Circuit's Immigration Case Backlog. And not a moment too soon. I was getting tired of reading those immigration cases.

Leave the Hearing Officer Alone. The Second Circuit has held that a district court should not overturn the decision of a hearing officer if the decision is reasoned and supported by the record. The decision in Gagliardo v. Arlington Central School District can be found here.