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Wednesday, August 29, 2007

So Close. The Second Circuit had granted Rodriguez's petition for habeas corpus on the ground that his Sixth Amendment rights had been violated by the state court having excluded his family from his criminal trial. Then, the Supreme Court had to get in the act and vacate and remand the case with instructions to reconsider it in light of the Supreme Court's decision in Carey v. Musladin. So what's the Second Circuit to do? It has now affirmed the district court's decision denying the petition.

The decision in Rodriguez v. Miller can be found here.

Sunday, August 26, 2007

Resigning arbitrator. The Second Circuit held that the resignation of an arbitrator did not prevent the remaining arbitrators from acting. To have held otherwise would allow one party to keep any action or any futher action from happening. This is so even when the arbitration agreement set out who the arbitrators would be.

The case in Zeiler v. Deitsch involved a "zabla" arbitration panel where each party picks on arbitrator and those arbitrators pick a third arbitrator who will serve as presiding arbitrator of the panel. The Court held that, in the event of a resignation, the party whose arbitrator resigns would have the power to appoint a replacement. In this case, Zeiler never attempted to do so, so the Court held that the remaining arbitrators could act.

The decision in this case can be found here.

No Notice. The Second Circuit has held that a district court need not give a criminal defendant advance notice before imposing a sentence in excess of the recommendations set out in the Sentencing Guidelines.

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

Friday, August 24, 2007

Rare bird. The Second Circuit has affirmed the conviction of Thomas Cullen, an internationally known professional falconer for violation of the the Wild Bird Conservation Act of 1992 Cullen was convicted of illegally importing some Black Sparrowhawks, a very rare bird indeed. Cullen tried to escape imprisonment by asserting a number of technical defenses, but to no avail.

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

Tuesday, August 21, 2007

New blog. There's a new blog in town, covering the Second Circuit's civil rights decisions. It's called Wait a Second!, and you should check it out. Of course, I will continue to cover civil rights decisions coming from the Second Circuit, where appropriate.

Friday, August 17, 2007

Law Review. This is a bit off-topic, but my adopted law student blogger, Butterflyfish, has made Law Review at her unnamed law school. Congratulations to her. If you have not been reading her blog up to now, you should definitely check it out.

Thursday, August 16, 2007

Rebutting the Prima Facie Showing. The Second Circuit has held that an employer sued for failing to promote an employee in retaliation for his exercise of his First Amendment rights may not be awarded summary judgment because a jury could have ruled in his favor on the issue of whether he rebutted the plaintiff's prima facie showing of a retaliatory action, but can only be awarded summary judgment if he rebuts the prima facie showing by making a showing that no reasonable jury, drawing all references in the plaintiff's favor, could have ruled for the plaintiff. It reversed the decision of the District Court, granting summary judgment to the defendant on that issue.

The decision in Dillon v. Morano can be found here.

Human Shield. Judith Karpova went to Iraq to act as a human shield and protect the civilian infrastructure. In doing so, she violated several executive orders and regulations of the Treasury Department and was fined $6.700. Ms. Karpova brought an action, claiming that the government had violated her First and Fifth Amendment rights. The District Court granted summary judgment to the government, dismissing the claims. Karpova appealed.

The Second Circuit affirmed, holding that the government had provided Ms. Karpova all the constitutional protections to which she was entitled and that the penalty imposed her was proper under the pertinent orders and regulations.

The decision in Karpova v. Snow can be found here.

Wednesday, August 08, 2007

Unearned Fees. The Second Circuit has held that the Real Estate Settlement Procedures Act of 1974 is violoated by the collection of an unearned, unidvidued post-closing fee.

The decision in Cohen v. JPMorgan Chase & Co. can be found here.

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