Law Fish News for 04-30-2018

Historic Supreme Court Cases

The U.S. Supreme Court held that the school board acted entirely within its permissible authority in punishing Fraser for “His offensively lewd and indecent speech.” This was not a situation where Fraser was sanctioned for expressing a political viewpoint as in the Tinker “Armband” case; the sexual innuendo was incidental to the merits of the candidate who was being nominated. “A high school assembly or classroom is no place for a sexually explicit monologue directed towards an unsuspecting audience of teenage students.” The Court also stated that the school regulation and the negative reactions of two teachers gave Fraser sufficient notice that his speech might result in his suspension. The U.S. Court of Appeals interpreted the Tinker v. Des Moines decision to mean that school officials would have to be able to predict that existing conduct, such as wearing armbands, would probably interfere with school discipline in order to justify punishment of students for the exercise of their First Amendment rights. The U.S. Supreme Court stated that the Eighth Amendment is intended to protect the rights of people convicted of crimes against the state, not school children with disciplinary problems. In extraordinary cases where the teacher or school official inflicts too hush a punishment, the parents can sue for civil damages and the state can charge the teacher or the school official with assault and battery. The Supreme Court of the United States held that the Hazelwood School District did not violate the First Amendment right of the students. The Court ruled that School officials need not tolerate speech which is inconsistent with the school’s basic educational mission. The Court ruled that school officials may search a student under “Reasonable suspicion.” The standard is less than that required of police therefore giving school officials much broader search powers under the fourth amendment. The Supreme Court of the United States was called in to review this statute which made it unlawful for teachers in state schools to teach human evolution. Since Senator Holmes, who was the primary sponsor of the bill, testified “That the bill was an effort to return voluntary prayer to our public schools,” the Court decided that the purpose of the Alabama law was to endorse religion and was solely an effort to return voluntary prayer to the public schools.

Keywords: [“school”,”student”,”court”]
Source: http://www.socialstudieshelp.com/EdLaw.htm

Historic Supreme Court Cases

The U.S. Supreme Court held that the school board acted entirely within its permissible authority in punishing Fraser for “His offensively lewd and indecent speech.” This was not a situation where Fraser was sanctioned for expressing a political viewpoint as in the Tinker “Armband” case; the sexual innuendo was incidental to the merits of the candidate who was being nominated. “A high school assembly or classroom is no place for a sexually explicit monologue directed towards an unsuspecting audience of teenage students.” The Court also stated that the school regulation and the negative reactions of two teachers gave Fraser sufficient notice that his speech might result in his suspension. The U.S. Court of Appeals interpreted the Tinker v. Des Moines decision to mean that school officials would have to be able to predict that existing conduct, such as wearing armbands, would probably interfere with school discipline in order to justify punishment of students for the exercise of their First Amendment rights. The U.S. Supreme Court stated that the Eighth Amendment is intended to protect the rights of people convicted of crimes against the state, not school children with disciplinary problems. In extraordinary cases where the teacher or school official inflicts too hush a punishment, the parents can sue for civil damages and the state can charge the teacher or the school official with assault and battery. The Supreme Court of the United States held that the Hazelwood School District did not violate the First Amendment right of the students. The Court ruled that School officials need not tolerate speech which is inconsistent with the school’s basic educational mission. The Court ruled that school officials may search a student under “Reasonable suspicion.” The standard is less than that required of police therefore giving school officials much broader search powers under the fourth amendment. The Supreme Court of the United States was called in to review this statute which made it unlawful for teachers in state schools to teach human evolution. Since Senator Holmes, who was the primary sponsor of the bill, testified “That the bill was an effort to return voluntary prayer to our public schools,” the Court decided that the purpose of the Alabama law was to endorse religion and was solely an effort to return voluntary prayer to the public schools.

Keywords: [“school”,”student”,”court”]
Source: http://www.socialstudieshelp.com/EdLaw.htm

At the time AFP filed suit, Google News displayed the headline, lede, and accompanying photo of articles published by the different news providers accessed by Google’s news crawler. Almost three years later, the Associated Press filed a lawsuit against another news aggregator, All Headline News. On its website, All Headline News described itself as a “Global news agency and content service.” According to the AP’s complaint All Headline News “Ha[d] no reporters,” and instead prepared its content by having employees “Copy[] news stories found on the internet or rewrite[e] such stories.” All Headline News then repackaged and sold this content to clients that included newspapers, Internet web portals, websites, and other redistributors of news content. In addition to looking at whether the use is commercial in nature, courts also look at whether the use is “Transformative” – namely, does the new work merely serve as a replacement for the original work, or does it instead add something new, either by repurposing the content, or infusing the content with a new expression, meaning, or message. In response, news aggregators like Google News are likely to argue that, despite studies like this, their services are still a net benefit to newspapers by driving traffic to their websites from consumers that would be unlikely to otherwise encounter their content. Another theory of liability that has been asserted against news aggregators is hot news misappropriation. Application of the hot news misappropriation doctrine to news aggregators. Two factors courts would likely consider important in determining whether a news aggregator engages in hot news misappropriation are the extent to which viewing the information on the news aggregator’s website would replace reading the original content, and the size and nature of the news aggregator’s readership. A news aggregator with a small readership or a readership that did not significantly overlap with the plaintiff’s core readership would be unlikely to threaten the continued existence of a newspaper, while Google News or a website that targets the same consumers could perhaps be more damaging. While the authors anticipate that the debate regarding news aggregators will continue to be fought in the courts and in public policy circles, we would like to sound a note of caution for those seeking to “Save” journalism by addressing the issue of news aggregation.

Keywords: [“New”,”aggregator”,”court”]
Source: http://www.niemanlab.org/2010/09/whats-the-law-around-aggregating-news…

Law Fish News for 04-29-2018

Legal/Legal Fees Assistance Program

The Legal Fees Assistance Program of the Wikimedia Foundation has been established to help secure funds for legal assistance in appropriate cases for Wikimedia users who serve in a community administrator, arbitrator, email response, or project governance role that is specified in this document. The Legal Fees Assistance Program is intended to help with the costs of a legal defense arising from a support role in the unlikely event that a user should face legal action for their actions in such a role. In its sole discretion, WMF may determine that the Legal Fees Assistance Program may apply to users acting in an administrator, arbitrator, email response, or project governance function that is not among those specified in this document. The Legal Fees Assistance Program is intended to help users in specified support roles in any country or jurisdiction and includes covered actions taken on any Wikimedia project, in any language. On the other hand, if the Legal Fees Assistance Program provides funds for a lawyer, that lawyer may enjoy an attorney-client or otherwise confidential relationship with the user as may be recognized or allowed under local laws. Assistance does not create any agency, employee, contractor, or other legal relationship with WMF. In providing assistance, WMF does not necessarily endorse any activity undertaken by a user in a movement role or otherwise before or after receipt of assistance. As we monitor the effectiveness of the program and ensure flexibility in its administration, we may need, from time to time, and at our sole discretion, to make changes to the Legal Fees Assistance Program, including possible termination of the program if necessary. Through the Legal Fees Assistance Program, WMF wants to try to create an environment, as set out in this document, that supports these critical roles in the unlikely event of a legal action. Although the Legal Fees Assistance Program does not cover content contributors other than those in support roles specified in this document, the WMF has a policy of trying to help eligible contributors, including editors and photographers, facing legal threats on a case-by-case basis. At the discretion of WMF, in highly unusual cases, the Legal Fees Assistance Program may provide funds for a lawyer before the filing of a legal action against a user in a support role if there is a serious threat, early legal advice is highly advisable, and the other requirements of the program are met.

Keywords: [“Legal”,”Program”,”Assistance”]
Source: https://meta.wikimedia.org/wiki/Legal/Legal_Fees_Assistance_Program

Wex Legal Dictionary / Encyclopedia

The Supreme Court has ruled that the death penalty is not a per se violation of the Eighth Amendment’s ban on cruel and unusual punishment, but the Eighth Amendment does shape certain procedural aspects regarding when a jury may use the death penalty and how it must be carried out. In Furman v. Georgia, 408 U.S. 238,, the Court invalidated existing death penalty laws because they constituted cruel and unusual punishment in violation of the Eighth Amendment. The Court reasoned that the laws resulted in a disproportionate application of the death penalty, specifically discriminating against the poor and minorities. The Court held the death penalty was not per se unconstitutional as it could serve the social purposes of retribution and deterrence. In the landmark case of Coker v. Georgia, 433 U.S. 584,, the Supreme Court ruled that a state cannot apply the death penalty to the crime of raping an adult woman because it violates the proportionality requirement. In Ring v. Arizona, 536 U.S. 584,, the Supreme Court held that it is unconstitutional for “a sentencing judge, sitting without a jury, to find an aggravating circumstance necessary for imposition of the death penalty.” An aggravating factor is any fact or circumstance that increases the culpability for a criminal act. For cases in which an appellate court rules a sentencing factor invalid, the Court ruled that the sentence imposed becomes unconstitutional unless the jury found some other aggravating factor that encompasses the same facts and circumstances as the invalid factor. More recently, in Atkins v. Virginia, 536 U.S. 304,, the Supreme Court determined that executing mentally retarded criminals violates the ban on “Cruel and unusual punishments” because their mental handicap lessens the severity of the crime and therefore renders the extraordinary penalty of death as disproportionately severe. In Bobby v. Bies, 556 U.S. 825,, the Court held that states may conduct hearings to reconsider the mental capacity of death row inmates who were labeled mentally retarded before the Court decided Atkins, because before Atkins, states had little incentive to aggressively investigate retardation claims. In Roper v. Simmons, 543 U.S. 551,, the Supreme Court invalidated the death penalty for all juvenile offenders.

Keywords: [“Court”,”penalty”,”death”]
Source: https://www.law.cornell.edu/wex/Death_penalty

Wex Legal Dictionary / Encyclopedia

The Supreme Court has ruled that the death penalty is not a per se violation of the Eighth Amendment’s ban on cruel and unusual punishment, but the Eighth Amendment does shape certain procedural aspects regarding when a jury may use the death penalty and how it must be carried out. In Furman v. Georgia, 408 U.S. 238,, the Court invalidated existing death penalty laws because they constituted cruel and unusual punishment in violation of the Eighth Amendment. The Court reasoned that the laws resulted in a disproportionate application of the death penalty, specifically discriminating against the poor and minorities. The Court held the death penalty was not per se unconstitutional as it could serve the social purposes of retribution and deterrence. In the landmark case of Coker v. Georgia, 433 U.S. 584,, the Supreme Court ruled that a state cannot apply the death penalty to the crime of raping an adult woman because it violates the proportionality requirement. In Ring v. Arizona, 536 U.S. 584,, the Supreme Court held that it is unconstitutional for “a sentencing judge, sitting without a jury, to find an aggravating circumstance necessary for imposition of the death penalty.” An aggravating factor is any fact or circumstance that increases the culpability for a criminal act. For cases in which an appellate court rules a sentencing factor invalid, the Court ruled that the sentence imposed becomes unconstitutional unless the jury found some other aggravating factor that encompasses the same facts and circumstances as the invalid factor. More recently, in Atkins v. Virginia, 536 U.S. 304,, the Supreme Court determined that executing mentally retarded criminals violates the ban on “Cruel and unusual punishments” because their mental handicap lessens the severity of the crime and therefore renders the extraordinary penalty of death as disproportionately severe. In Bobby v. Bies, 556 U.S. 825,, the Court held that states may conduct hearings to reconsider the mental capacity of death row inmates who were labeled mentally retarded before the Court decided Atkins, because before Atkins, states had little incentive to aggressively investigate retardation claims. In Roper v. Simmons, 543 U.S. 551,, the Supreme Court invalidated the death penalty for all juvenile offenders.

Keywords: [“Court”,”penalty”,”death”]
Source: https://www.law.cornell.edu/wex/Death_penalty

Law Fish News for 04-28-2018

Cruel and unusual punishment

Cruel and unusual punishment is a phrase describing punishment that is considered unacceptable due to the suffering, pain, or humiliation it inflicts on the person subjected to it. There are generally tests that can serve as a guide to what cruel and unusual punishment is according to various legal textbooks in accordance with the law. Very similar words, “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”, appear in Article 5 of the Universal Declaration of Human Rights adopted by the United Nations General Assembly on December 10, 1948. The Constitution of the Marshall Islands, in the sixth section of its Bill of Rights, prohibits “Cruel and unusual punishment”, which it defines as: the death penalty; torture; “Inhuman and degrading treatment”; and “Excessive fines or deprivations”. The Eighth Amendment to the United States Constitution states that “Cruel and unusual punishments inflicted.” The general principles the United States Supreme Court relied on to decide whether or not a particular punishment was cruel and unusual were determined by Justice William Brennan. “A severe punishment that is obviously inflicted in wholly arbitrary fashion.” “A severe punishment that is clearly and totally rejected throughout society.” He added: “The function of these principles, after all, is simply to provide means by which a court can determine whether a challenged punishment comports with human dignity. They are interrelated, and, in most cases, it will be their convergence that will justify the conclusion that a punishment is”cruel and unusual. ” The test will ordinarily be a cumulative one: if a punishment is unusually severe, if there is a strong probability that it is inflicted arbitrarily, if it is substantially rejected by contemporary society, and if there is no reason to believe that it serves any penal purpose more effectively than some less severe punishment, then the continued infliction of that punishment violates the command of the Clause that the State may not inflict inhuman and uncivilized punishments upon those convicted of crimes. In this way the United States Supreme Court “Set the standard that a punishment would be cruel and unusual [,if] it was too severe for the crime, [if] it was arbitrary, if it offended society’s sense of justice, or if it was not more effective than a less severe penalty.” There is great discussion as to whether capital punishment is cruel and unusual.

Keywords: [“punishment”,”Cruel”,”State”]
Source: https://en.wikipedia.org/wiki/Cruel_and_unusual_punishment

Cruel and unusual punishment

Cruel and unusual punishment is a phrase describing punishment that is considered unacceptable due to the suffering, pain, or humiliation it inflicts on the person subjected to it. There are generally tests that can serve as a guide to what cruel and unusual punishment is according to various legal textbooks in accordance with the law. Very similar words, “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”, appear in Article 5 of the Universal Declaration of Human Rights adopted by the United Nations General Assembly on December 10, 1948. The Constitution of the Marshall Islands, in the sixth section of its Bill of Rights, prohibits “Cruel and unusual punishment”, which it defines as: the death penalty; torture; “Inhuman and degrading treatment”; and “Excessive fines or deprivations”. The Eighth Amendment to the United States Constitution states that “Cruel and unusual punishments inflicted.” The general principles the United States Supreme Court relied on to decide whether or not a particular punishment was cruel and unusual were determined by Justice William Brennan. “A severe punishment that is obviously inflicted in wholly arbitrary fashion.” “A severe punishment that is clearly and totally rejected throughout society.” He added: “The function of these principles, after all, is simply to provide means by which a court can determine whether a challenged punishment comports with human dignity. They are interrelated, and, in most cases, it will be their convergence that will justify the conclusion that a punishment is”cruel and unusual. ” The test will ordinarily be a cumulative one: if a punishment is unusually severe, if there is a strong probability that it is inflicted arbitrarily, if it is substantially rejected by contemporary society, and if there is no reason to believe that it serves any penal purpose more effectively than some less severe punishment, then the continued infliction of that punishment violates the command of the Clause that the State may not inflict inhuman and uncivilized punishments upon those convicted of crimes. In this way the United States Supreme Court “Set the standard that a punishment would be cruel and unusual [,if] it was too severe for the crime, [if] it was arbitrary, if it offended society’s sense of justice, or if it was not more effective than a less severe penalty.” There is great discussion as to whether capital punishment is cruel and unusual.

Keywords: [“punishment”,”Cruel”,”State”]
Source: https://en.wikipedia.org/wiki/Cruel_and_unusual_punishment

Legal/Legal Fees Assistance Program

The Legal Fees Assistance Program of the Wikimedia Foundation has been established to help secure funds for legal assistance in appropriate cases for Wikimedia users who serve in a community administrator, arbitrator, email response, or project governance role that is specified in this document. The Legal Fees Assistance Program is intended to help with the costs of a legal defense arising from a support role in the unlikely event that a user should face legal action for their actions in such a role. In its sole discretion, WMF may determine that the Legal Fees Assistance Program may apply to users acting in an administrator, arbitrator, email response, or project governance function that is not among those specified in this document. The Legal Fees Assistance Program is intended to help users in specified support roles in any country or jurisdiction and includes covered actions taken on any Wikimedia project, in any language. On the other hand, if the Legal Fees Assistance Program provides funds for a lawyer, that lawyer may enjoy an attorney-client or otherwise confidential relationship with the user as may be recognized or allowed under local laws. Assistance does not create any agency, employee, contractor, or other legal relationship with WMF. In providing assistance, WMF does not necessarily endorse any activity undertaken by a user in a movement role or otherwise before or after receipt of assistance. As we monitor the effectiveness of the program and ensure flexibility in its administration, we may need, from time to time, and at our sole discretion, to make changes to the Legal Fees Assistance Program, including possible termination of the program if necessary. Through the Legal Fees Assistance Program, WMF wants to try to create an environment, as set out in this document, that supports these critical roles in the unlikely event of a legal action. Although the Legal Fees Assistance Program does not cover content contributors other than those in support roles specified in this document, the WMF has a policy of trying to help eligible contributors, including editors and photographers, facing legal threats on a case-by-case basis. At the discretion of WMF, in highly unusual cases, the Legal Fees Assistance Program may provide funds for a lawyer before the filing of a legal action against a user in a support role if there is a serious threat, early legal advice is highly advisable, and the other requirements of the program are met.

Keywords: [“Legal”,”Program”,”Assistance”]
Source: https://meta.wikimedia.org/wiki/Legal/Legal_Fees_Assistance_Program

Law Fish News for 04-27-2018

lawmentor.co.uk

Overruling a previous precedent arises where a court decides, in a later case, that the legal ruling or reasoning in an earlier case was not correctly applied or no longer appropriate, the court is really saying that the earlier decision should not now be followed and the case is no longer considered to be good law. When a higher court overrules a decision made by a lower court in an earlier case e.g. the House of Lords overruling the decision of the Court of Appeal in an earlier case; when the European Court of Justice decides to overrule a previous decision that it has made by not following the decision; when the House of Lords decides to exercise its discretion and declare one of its own previous decisions to be no longer law and overrules it. The cases of Pepper v Hart and Davis v Johnson provide a good example of the principle of overruling by the House of Lords using its authority under the Practice Statement 1966. Could not be consulted, no longer represented the law and was overruled. A rare example of overruling in a criminal case using the powers of the Practice Statement can be found with the case of R v Shivpuri in which the House of Lords acknowledged that they needed to take the opportunity of putting right the mistake they had made in Anderton v Ryan. The matter eventually came to the attention of the House of Lords who, by a majority of 4-1, quashed the defendant’s conviction on the ground that she could not be guilty of attempting to handle stolen goods unless such property could be shown to be stolen. The majority of their Lordships refused to accept that the defendant’s belief that the goods were stolen was sufficient in itself to result in liability. Such a result may have been the aim of the Criminal Attempts Act 1981 but their Lordships felt that Parliament would have to express its intentions more clearly before the courts would be willing to impose liability solely on the basis of what the defendant had thought she was doing, as opposed to what she was actually doing. The House of Lords took the opportunity of making it clear that, even though Anderton v Ryan had only been decided by them a short time before, they now felt that their earlier decision was wrong and that they were overruling that decision and declaring the law to be as they found it to be in Shivpuri. There is a reluctance to overrule old decisions and this may be because overruling operates retrospectively, meaning that the principle of law being overruled is held never to have been law.

Keywords: [“overrule”,”decision”,”defendant”]
Source: http://www.lawmentor.co.uk/glossary/O/overruling

lawmentor.co.uk

Overruling a previous precedent arises where a court decides, in a later case, that the legal ruling or reasoning in an earlier case was not correctly applied or no longer appropriate, the court is really saying that the earlier decision should not now be followed and the case is no longer considered to be good law. When a higher court overrules a decision made by a lower court in an earlier case e.g. the House of Lords overruling the decision of the Court of Appeal in an earlier case; when the European Court of Justice decides to overrule a previous decision that it has made by not following the decision; when the House of Lords decides to exercise its discretion and declare one of its own previous decisions to be no longer law and overrules it. The cases of Pepper v Hart and Davis v Johnson provide a good example of the principle of overruling by the House of Lords using its authority under the Practice Statement 1966. Could not be consulted, no longer represented the law and was overruled. A rare example of overruling in a criminal case using the powers of the Practice Statement can be found with the case of R v Shivpuri in which the House of Lords acknowledged that they needed to take the opportunity of putting right the mistake they had made in Anderton v Ryan. The matter eventually came to the attention of the House of Lords who, by a majority of 4-1, quashed the defendant’s conviction on the ground that she could not be guilty of attempting to handle stolen goods unless such property could be shown to be stolen. The majority of their Lordships refused to accept that the defendant’s belief that the goods were stolen was sufficient in itself to result in liability. Such a result may have been the aim of the Criminal Attempts Act 1981 but their Lordships felt that Parliament would have to express its intentions more clearly before the courts would be willing to impose liability solely on the basis of what the defendant had thought she was doing, as opposed to what she was actually doing. The House of Lords took the opportunity of making it clear that, even though Anderton v Ryan had only been decided by them a short time before, they now felt that their earlier decision was wrong and that they were overruling that decision and declaring the law to be as they found it to be in Shivpuri. There is a reluctance to overrule old decisions and this may be because overruling operates retrospectively, meaning that the principle of law being overruled is held never to have been law.

Keywords: [“overrule”,”decision”,”defendant”]
Source: http://www.lawmentor.co.uk/glossary/O/overruling

Law Fish News for 04-26-2018

Opinion recap: Solving “cold cases” made easier

Treating the solution of unsolved crimes as a legitimate part of routine police station “Booking” procedures, a divided Supreme Court on Monday upheld the power of government at all levels to take DNA samples from every person legally arrested for a “Serious” new crime. The dissenters argued that the Court was casting aside a long-standing rule that police may not take scientific samples involuntarily from an individual, if their only purpose is to solve a prior crime. While the Kennedy opinion said this extension was being allowed only when the person had been arrested for a “Serious” new crime, the Scalia opinion argued that the ruling would not be kept within that limit, and would allow DNA sampling for anyone arrested of even the most minor crime. The only guide as to what kind of accusations of a new crime would justify taking involuntarily a DNA sample from the arrested individual was the actual language of the Maryland law at issue in the case. The dissenting opinion, seeking to take apart every major aspect of the Kennedy opinion, argued that the DNA sampling procedure was really not designed as part of an identification of an arrested individual, but actually served to achieve only one end: turning up evidence of suspects to solve a prior crime having nothing to do with the offense for which the individual was arrested. The process of analyzing DNA takes so long, Justice Scalia wrote, that it really has no value in helping police fully identify a suspect that they have in custody for another crime. While the Court has in the past allowed some police searches even if they have no suspicion that the individual involved has committed a crime, the Court has never done so when the police were seeking to gather evidence of crime, the dissenters said. While the new ruling will help solve more crimes, Justice Scalia wrote, so would taking DNA samples of everyone who flies in an airplane, gets a driver’s license, or goes to a public school. The Supreme Court, in the case of Maryland v. King, was asked to clarify the power of police – under the Constitution’s Fourth Amendment limit on police searches – to take a DNA sample from a person accused of crime, but not yet convicted of that crime. The way the Maryland law works is that, if police have sufficient reason to believe that an individual has committed such a “Serious” crime, that will justify taking that person to a police station to hold them there for further investigation of that crime, to see if charges are to be filed and prosecuted.

Keywords: [“crime”,”police”,”sample”]
Source: http://www.scotusblog.com/2013/06/opinion-recap-solving-cold-cases-made…

Opinion recap: Solving “cold cases” made easier

Treating the solution of unsolved crimes as a legitimate part of routine police station “Booking” procedures, a divided Supreme Court on Monday upheld the power of government at all levels to take DNA samples from every person legally arrested for a “Serious” new crime. The dissenters argued that the Court was casting aside a long-standing rule that police may not take scientific samples involuntarily from an individual, if their only purpose is to solve a prior crime. While the Kennedy opinion said this extension was being allowed only when the person had been arrested for a “Serious” new crime, the Scalia opinion argued that the ruling would not be kept within that limit, and would allow DNA sampling for anyone arrested of even the most minor crime. The only guide as to what kind of accusations of a new crime would justify taking involuntarily a DNA sample from the arrested individual was the actual language of the Maryland law at issue in the case. The dissenting opinion, seeking to take apart every major aspect of the Kennedy opinion, argued that the DNA sampling procedure was really not designed as part of an identification of an arrested individual, but actually served to achieve only one end: turning up evidence of suspects to solve a prior crime having nothing to do with the offense for which the individual was arrested. The process of analyzing DNA takes so long, Justice Scalia wrote, that it really has no value in helping police fully identify a suspect that they have in custody for another crime. While the Court has in the past allowed some police searches even if they have no suspicion that the individual involved has committed a crime, the Court has never done so when the police were seeking to gather evidence of crime, the dissenters said. While the new ruling will help solve more crimes, Justice Scalia wrote, so would taking DNA samples of everyone who flies in an airplane, gets a driver’s license, or goes to a public school. The Supreme Court, in the case of Maryland v. King, was asked to clarify the power of police – under the Constitution’s Fourth Amendment limit on police searches – to take a DNA sample from a person accused of crime, but not yet convicted of that crime. The way the Maryland law works is that, if police have sufficient reason to believe that an individual has committed such a “Serious” crime, that will justify taking that person to a police station to hold them there for further investigation of that crime, to see if charges are to be filed and prosecuted.

Keywords: [“crime”,”police”,”sample”]
Source: http://www.scotusblog.com/2013/06/opinion-recap-solving-cold-cases-made…

Law Fish News for 04-25-2018

Making the Business Case for Corporate Philanthropy

The issues surrounding corporate philanthropy apply to a wide cross-section of companies in every industry, from small, family firms to large, multinational ones. Corporate philanthropy is one area in which managers often have discretion to use a company’s slack resources independent of business objectives. Is corporate philanthropy a good business strategy? Corporate giving programs can provide a competitive advantage when they are well designed and carefully executed. Corporate giving increases following negative media exposure, suggesting companies use philanthropy to repair damaged relationships with community leaders and other stakeholders. Recommended Practices for Corporate Philanthropy from the Council of Institutional InvestorsBoard monitoring, assessment, and approval The board of directors should monitor, assess, and approve all charitable and political contributions made by the company. A well-designed corporate giving program clearly articulates a congruence between the company’s philanthropic activities and its other business activities. Because most corporate foundations receive virtually all of their funding from the company, an otherwise independent director of the company could potentially be disqualified if he also serves as an officer of the corporate foundation. Second, the total cost of a corporate philanthropy includes the contributions themselves plus administrative costs, such as the salaries of giving professionals and overhead. Assessing administrative costs over time and comparing costs to external benchmarks will help companies determine whether their level of staffing and organizational structure are reasonable and the giving program is operating efficiently. In order to make a business case in support of corporate philanthropy, executives should integrate giving with other business activities, institute controls to limit managerial opportunism, and develop procedures to measure and evaluate financial and social outcomes. To amend the Securities Exchange Act of 1934 to require improved disclosure of corporate charitable contributions, and for other purposes, HR 944, 105th Cong.; To amend the Securities and Exchange Act of 1934 to require improved disclosure of corporate charitable contributions, and for other purposes, HR 887, 106th Cong.; Corporate Charitable Disclosure Act of 2003, HR 275, 108th Cong.; Corporate Charitable Disclosure Act of 2005, HR 543, 109th Cong.; Corporate Charitable Disclosure Act of 2007, HR 1208, 110th Cong.

Keywords: [“company”,”corporate”,”give”]
Source: https://corpgov.law.harvard.edu/2011/08/20/making-the-business…

Lawsplainer: Is There Anything Unusual About Judge Curiel’s Orders In The Trump University Case?

The first is a purported class action filed in 2010, asserting that Trump and Trump University violated California’s ridiculously overbroad and malleable unfair business practices law, California’s consumer protection laws, California’s false advertising laws, that they breached Trump U’s contracts, and that they defrauded students, among other things. The second case is a 2013 purported class action by the same lawyers with the same purported classes of student plaintiffs asserting that Trump and Trump University violated RICO laws. In the 2010 case, Donald Trump filed one motion for summary judgment and Trump University filed another. Trump’s own motion argued that he didn’t make any of the alleged misrepresentations about Trump University that plaintiffs claim and therefore couldn’t be held liable for them, and that the law didn’t allow them the damages they demanded. Trump University argued that the law doesn’t allow the plaintiffs the damages and injunctions they are asking for. As to Donald Trump himself, Judge Curiel found that plaintiffs had offered admissible evidence creating a genuine dispute about whether Trump “Hand-picked” Trump University instructors as he claimed, that they had offered enough evidence to create a dispute about whether Trump was responsible for Trump University advertisements because he reviewed them personally, and that they had offered enough evidence to create a factual dispute about whether plaintiffs relied to their detriment on false representations for which Trump could be held responsible. So does the summary judgment order suggest Judge Curiel is a partisan biased against Trump? No. Look, in the modern political climate I could burn ten thousand words on this and people who support Trump wouldn’t buy it and people who oppose Trump would buy it even if the only word was “Dildo.” But in my judgment, Judge Curiel’s partial denial of the summary judgment is pretty straightforward and well within the range of normal federal judicial decisions on summary judgment. Specifically, Judge Curiel ordered that the case would have a separate trial on liability and then a separate trial on damages only if plaintiff prevailed; rather than assuming if plaintiffs won that all class members would get a full refund, Trump and Trump University would be able to litigate how much value they got and how much or little of a refund they should get. So does the record support that Judge Curiel is in the tank for the plaintiffs and outrageously biased against Trump?

Keywords: [“Trump”,”Judge”,”evidence”]
Source: https://www.popehat.com/2016/06/01/lawsplainer-is-there-anything…

Lawsplainer: Is There Anything Unusual About Judge Curiel’s Orders In The Trump University Case?

The first is a purported class action filed in 2010, asserting that Trump and Trump University violated California’s ridiculously overbroad and malleable unfair business practices law, California’s consumer protection laws, California’s false advertising laws, that they breached Trump U’s contracts, and that they defrauded students, among other things. The second case is a 2013 purported class action by the same lawyers with the same purported classes of student plaintiffs asserting that Trump and Trump University violated RICO laws. In the 2010 case, Donald Trump filed one motion for summary judgment and Trump University filed another. Trump’s own motion argued that he didn’t make any of the alleged misrepresentations about Trump University that plaintiffs claim and therefore couldn’t be held liable for them, and that the law didn’t allow them the damages they demanded. Trump University argued that the law doesn’t allow the plaintiffs the damages and injunctions they are asking for. As to Donald Trump himself, Judge Curiel found that plaintiffs had offered admissible evidence creating a genuine dispute about whether Trump “Hand-picked” Trump University instructors as he claimed, that they had offered enough evidence to create a dispute about whether Trump was responsible for Trump University advertisements because he reviewed them personally, and that they had offered enough evidence to create a factual dispute about whether plaintiffs relied to their detriment on false representations for which Trump could be held responsible. So does the summary judgment order suggest Judge Curiel is a partisan biased against Trump? No. Look, in the modern political climate I could burn ten thousand words on this and people who support Trump wouldn’t buy it and people who oppose Trump would buy it even if the only word was “Dildo.” But in my judgment, Judge Curiel’s partial denial of the summary judgment is pretty straightforward and well within the range of normal federal judicial decisions on summary judgment. Specifically, Judge Curiel ordered that the case would have a separate trial on liability and then a separate trial on damages only if plaintiff prevailed; rather than assuming if plaintiffs won that all class members would get a full refund, Trump and Trump University would be able to litigate how much value they got and how much or little of a refund they should get. So does the record support that Judge Curiel is in the tank for the plaintiffs and outrageously biased against Trump?

Keywords: [“Trump”,”Judge”,”evidence”]
Source: https://www.popehat.com/2016/06/01/lawsplainer-is-there-anything…

Law Fish News for 04-24-2018

Ch.01 The Singapore Legal System

In this regard, the economic success of Singapore can be attributed, amongst others, to the wisdom of its leadership, its use of laws and the legal system to build a new society and to entrench its economic survival while ensuring that the legal system is attuned to the needs and demands of the international community. The opportunities of a Singapore lawyer are fairly varied – he or she may, for example, wish to serve as a legal or judicial officer in the Singapore Legal Service, an in-house counsel of a company or practise law in a local or international law firm. The Singapore Institute of Legal Education was established in May 2011 to maintain and improve the standards of legal education in Singapore. 1.8.6 With the increased internationalisation of legal services, legal education in Singapore has placed greater emphasis on the need for law undergraduates to acquire knowledge of and exposure to foreign legal systems and international law. The Singapore Legal Aid Bureau has been established under the Legal Aid and Advice Act for the purposes of providing legal advice and legal services in civil matters to the needy. 1.8.16 Apart from the law schools, law firms and corporations as well as the Singapore Institute of Legal Education, two other important statutory bodies serve the legal community in Singapore. 1.9.5 Taking advantage of its efficient and effective legal system and ADR framework, Singapore has sought to capitalise on these attributes to secure foreign partners to Singapore. SECTION 10 PROMOTION OF SINGAPORE LAW. 1.10.1 To promote the Singapore legal industry, the SingaporeLaw initiative, supported by the Singapore Academy of Law and the Ministry of Law, was launched in 2006. In particular, the emphasis is on encouraging foreign parties to choose Singapore as a partner for `legal solutions in Asia´ with the following significant platforms promoted: Singapore law as the law of choice governing contracts involving Asian parties; and Singapore as the `natural choice´ venue for dispute resolution, especially mediation and arbitration. The grantin g of the Qualifying Foreign Law Practice licences to selected foreign law firms in December 2008 to allow them to practise Singapore law in selected areas is part of the overall efforts to enhance the legal talent pool available in Singapore, meet the needs and demands of Singapore´s economy, to adapt to the changing global legal landscape, and to attract and retain legal talent.

Keywords: [“Singapore”,”law”,”Court”]
Source: http://www.singaporelaw.sg/sglaw/laws-of-singapore/overview/chapter-1

Ch.01 The Singapore Legal System

In this regard, the economic success of Singapore can be attributed, amongst others, to the wisdom of its leadership, its use of laws and the legal system to build a new society and to entrench its economic survival while ensuring that the legal system is attuned to the needs and demands of the international community. The opportunities of a Singapore lawyer are fairly varied – he or she may, for example, wish to serve as a legal or judicial officer in the Singapore Legal Service, an in-house counsel of a company or practise law in a local or international law firm. The Singapore Institute of Legal Education was established in May 2011 to maintain and improve the standards of legal education in Singapore. 1.8.6 With the increased internationalisation of legal services, legal education in Singapore has placed greater emphasis on the need for law undergraduates to acquire knowledge of and exposure to foreign legal systems and international law. The Singapore Legal Aid Bureau has been established under the Legal Aid and Advice Act for the purposes of providing legal advice and legal services in civil matters to the needy. 1.8.16 Apart from the law schools, law firms and corporations as well as the Singapore Institute of Legal Education, two other important statutory bodies serve the legal community in Singapore. 1.9.5 Taking advantage of its efficient and effective legal system and ADR framework, Singapore has sought to capitalise on these attributes to secure foreign partners to Singapore. SECTION 10 PROMOTION OF SINGAPORE LAW. 1.10.1 To promote the Singapore legal industry, the SingaporeLaw initiative, supported by the Singapore Academy of Law and the Ministry of Law, was launched in 2006. In particular, the emphasis is on encouraging foreign parties to choose Singapore as a partner for `legal solutions in Asia´ with the following significant platforms promoted: Singapore law as the law of choice governing contracts involving Asian parties; and Singapore as the `natural choice´ venue for dispute resolution, especially mediation and arbitration. The grantin g of the Qualifying Foreign Law Practice licences to selected foreign law firms in December 2008 to allow them to practise Singapore law in selected areas is part of the overall efforts to enhance the legal talent pool available in Singapore, meet the needs and demands of Singapore´s economy, to adapt to the changing global legal landscape, and to attract and retain legal talent.

Keywords: [“Singapore”,”law”,”Court”]
Source: http://www.singaporelaw.sg/sglaw/laws-of-singapore/overview/chapter-1

Making the Business Case for Corporate Philanthropy

The issues surrounding corporate philanthropy apply to a wide cross-section of companies in every industry, from small, family firms to large, multinational ones. Corporate philanthropy is one area in which managers often have discretion to use a company’s slack resources independent of business objectives. Is corporate philanthropy a good business strategy? Corporate giving programs can provide a competitive advantage when they are well designed and carefully executed. Corporate giving increases following negative media exposure, suggesting companies use philanthropy to repair damaged relationships with community leaders and other stakeholders. Recommended Practices for Corporate Philanthropy from the Council of Institutional InvestorsBoard monitoring, assessment, and approval The board of directors should monitor, assess, and approve all charitable and political contributions made by the company. A well-designed corporate giving program clearly articulates a congruence between the company’s philanthropic activities and its other business activities. Because most corporate foundations receive virtually all of their funding from the company, an otherwise independent director of the company could potentially be disqualified if he also serves as an officer of the corporate foundation. Second, the total cost of a corporate philanthropy includes the contributions themselves plus administrative costs, such as the salaries of giving professionals and overhead. Assessing administrative costs over time and comparing costs to external benchmarks will help companies determine whether their level of staffing and organizational structure are reasonable and the giving program is operating efficiently. In order to make a business case in support of corporate philanthropy, executives should integrate giving with other business activities, institute controls to limit managerial opportunism, and develop procedures to measure and evaluate financial and social outcomes. To amend the Securities Exchange Act of 1934 to require improved disclosure of corporate charitable contributions, and for other purposes, HR 944, 105th Cong.; To amend the Securities and Exchange Act of 1934 to require improved disclosure of corporate charitable contributions, and for other purposes, HR 887, 106th Cong.; Corporate Charitable Disclosure Act of 2003, HR 275, 108th Cong.; Corporate Charitable Disclosure Act of 2005, HR 543, 109th Cong.; Corporate Charitable Disclosure Act of 2007, HR 1208, 110th Cong.

Keywords: [“company”,”corporate”,”give”]
Source: https://corpgov.law.harvard.edu/2011/08/20/making-the-business…

Law Fish News for 04-23-2018

Copyright: Infringement Issues

The court held a direct infringement claim requires a volitional act: “[a]lthough copyright is a strict liability statute, there should still be some element of volition or causation which is lacking where a defendant’s system is merely used to use a copy by a third party. The court denied Tickets.com’s motion to dismiss as to the copyright infringement claim because it found that the complaint satisfactorily alleged copying. Accordingly, since LoopNet, as an Internet service provider, was simply the owner and manager of a system used by others who were violating CoStar’s copyrights, and was not an actual duplicator itself, the Court found it was not directly liable for copyright infringement. The court granted plaintiff’s motion for summary judgment on all claims: direct infringement of plaintiffs’ exclusive right of distribution under 17 U.S.C. 106(3); inducement of copyright infringement; contributory copyright infringement; and vicarious copyright infringement. With respect to direct infringement, the court found defendants engaged in volitional conduct sufficient to show that they actively engaged in distribution of copies of plaintiffs’ copyrighted sound recordings. While “[t]he Copyright Act does not expressly render anyone liable for infringement committed by another,” Sony Corp. v. Universal City Studios, 464 U.S. 417, 434, courts have developed several common law doctrines of secondary liability: contributory infringement, vicarious infringement and, most recently, inducement. We adopt it here, holding that one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties. The court granted summary judgment on plaintiffs’ claim of inducement of copyright infringement against defendant distributor of LimeWire, a peer-to-peer file-sharing program. The court found that five factors, taken together, established defendant’s intent to encourage infringement by distributing LimeWire: awareness of substantial infringement by users; efforts to attract infringing users; efforts to enable and assist users to commit infringement; dependence on infringing use for business success; and failure to mitigate infringing activities. Plaintiffs alleged claims for misappropriation, federal trademark dilution, trademark infringement, false designation of origin, copyright infringement, and various state claims.

Keywords: [“copyright”,”infringement”,”court”]
Source: https://ilt.eff.org/index.php/Copyright:_Infringement_Issues

U.S. Supreme Court Cases

a. Establishes the proportionality principle under 8th. b. “What constitutes a cruel and unusual punishment has not been exactly decided. It has been said that ordinarily the terms imply something inhuman and barbarous, torture and the like. McDonald v. Commonwealth, 173 Massachusetts, 322. The court in that case conceded the possibility”that imprisonment in the State prison for a long term of years might be so disproportionate to the offense as to constitute a cruel and unusual punishment. b. The Court found that because the inmates had no property interest or right to stay in the first prison, the transfer to a harsher facility did not violate due process. d. Due Process does not protect prisoners from being transferred between prisons, despite the conditions being far worse. b. “As long as the conditions or degree of confinement to which the prisoner is subjected is within the sentence imposed upon him and is not otherwise violative of the Constitution, the Due Process Clause does not in itself subject an inmate’s treatment by prison authorities to judicial oversight.” It’s worth looking into Powell’s notes to see if the overall satisfactory nature of the prison led him to make the statements he does about prisons not needing to be comfortable. a. In cases alleging cruel and unusual punishment, it is necessary to examine a prison official’s state of mind. Justice White’s concurrence criticizes the majority for improperly requiring the subjective prong in prison conditions cases. a. Prison conditions may be found to be cruel and unusual when prison officials are deliberately indifferent to prisoner health and safety. a. “The punishment of incarcerated prisoners, on the other hand, serves different aims than those found invalid in Bell and Ingraham. The process does not impose retribution in lieu of a valid conviction, nor does it maintain physical control over free citizens forced by law to subject themselves to state control over the educational mission. It effectuates prison management and prisoner rehabilitative goals.” The Court reasoned that, although Hope’s allegations if true established an Eighth Amendment violation, prison guards could be shielded from liability for their constitutionally impermissible conduct if their actions did not violate clearly established statutory or constitutional rights of which a reasonable person would have known.

Keywords: [“prison”,”prisoner”,”Amendment”]
Source: http://solitarywatch.com/resources/u-s-supreme-court-cases

U.S. Supreme Court Cases

a. Establishes the proportionality principle under 8th. b. “What constitutes a cruel and unusual punishment has not been exactly decided. It has been said that ordinarily the terms imply something inhuman and barbarous, torture and the like. McDonald v. Commonwealth, 173 Massachusetts, 322. The court in that case conceded the possibility”that imprisonment in the State prison for a long term of years might be so disproportionate to the offense as to constitute a cruel and unusual punishment. b. The Court found that because the inmates had no property interest or right to stay in the first prison, the transfer to a harsher facility did not violate due process. d. Due Process does not protect prisoners from being transferred between prisons, despite the conditions being far worse. b. “As long as the conditions or degree of confinement to which the prisoner is subjected is within the sentence imposed upon him and is not otherwise violative of the Constitution, the Due Process Clause does not in itself subject an inmate’s treatment by prison authorities to judicial oversight.” It’s worth looking into Powell’s notes to see if the overall satisfactory nature of the prison led him to make the statements he does about prisons not needing to be comfortable. a. In cases alleging cruel and unusual punishment, it is necessary to examine a prison official’s state of mind. Justice White’s concurrence criticizes the majority for improperly requiring the subjective prong in prison conditions cases. a. Prison conditions may be found to be cruel and unusual when prison officials are deliberately indifferent to prisoner health and safety. a. “The punishment of incarcerated prisoners, on the other hand, serves different aims than those found invalid in Bell and Ingraham. The process does not impose retribution in lieu of a valid conviction, nor does it maintain physical control over free citizens forced by law to subject themselves to state control over the educational mission. It effectuates prison management and prisoner rehabilitative goals.” The Court reasoned that, although Hope’s allegations if true established an Eighth Amendment violation, prison guards could be shielded from liability for their constitutionally impermissible conduct if their actions did not violate clearly established statutory or constitutional rights of which a reasonable person would have known.

Keywords: [“prison”,”prisoner”,”Amendment”]
Source: http://solitarywatch.com/resources/u-s-supreme-court-cases

Law Fish News for 04-22-2018

Judges Gone Wild! 14 Weird and Unusual Criminal Sentences

Usually, the craziness comes from the litigants in the court cases, but sometimes judges lend their own sense of loopiness to the proceedings when they hand down their sentences. Here are 14 such instances of unusual sentencing, be they “Creative” or “Crackpot.” Men Sentenced to Dress in Drag Coshocton, Ohio: Judge David Hostetler gave Jason Householder, 23, and John Stockum, 21, two options of punishment for throwing beer bottles at a woman in a car: 60 days in jail or an hour of walking through downtown Coshocton in dresses, wigs and makeup. Judge Rules Sex Offender Is Too Short for PrisonSidney, Nebraska: Convicted child molester Richard W. Thompson, 50, was given 10 years’ probation in lieu of prison time when Judge Kristine Cecava declared that the 5-foot-1 man’s stature, combined with the nature of his crime, would put him in danger in jail. Man Forbidden to Have a GirlfriendOntario, Canada: Arrested for attacking his ex-girlfriend, Steven Cranley, 24, was declared by doctors to have difficulty coping with rejection and was thus ordered by Judge Rhys Morgan to refrain from “a romantic relationship of an intimate nature with a female person” for three years. Restaino ordered them released later that day, but the damage had been done; the judge was relieved of his position. Judge Makes Slumlord Live in His Own BuildingCleveland, Ohio: In what sounds like something out of a Joe Pesci movie, landlord Nicholas Dionisopoulos, who owned over 40 run-down properties in Cleveland, was sentenced to six months’ house arrest in one of the units, where he presumably experienced a series of wacky pratfalls before finally realizing the err of his ways – unless Hollywood lied to us. Man Sentenced to ChurchDavenport, Iowa: Running out of patience with longtime criminal Pachino Hill, 29, Judge Christine Dalton sentenced the man to eight weeks of church, along with counseling and probation. Man Ordered to Wear “Sex Offender” T-shirt at WorkNewark, Delaware: Convicted of exposing himself to 10-year-old girl while on the job, 69-year-old Russell Teeter was sentenced to 60 days in jail, with the unusual stipulation that upon his release, he must wear a t-shirt reading “I am a registered sex offender” at work for 22 straight months. Woman Has to Eat Bread and WaterHouston, Texas: Convicted of animal neglect that led to the euthanization of one of her horses, 28-year-old Melissa Dawn Sweeney was sentenced to 30 days in jail, the first three with nothing to eat but bread and water – which was “More than her horses got,” according to Judge Mike Peters.

Keywords: [“Judge”,”Sentenced”,”sentence”]
Source: http://www.crschools.net/blog/14-weird-and-unusual-criminal-sentences

Judges Gone Wild! 14 Weird and Unusual Criminal Sentences

Usually, the craziness comes from the litigants in the court cases, but sometimes judges lend their own sense of loopiness to the proceedings when they hand down their sentences. Here are 14 such instances of unusual sentencing, be they “Creative” or “Crackpot.” Men Sentenced to Dress in Drag Coshocton, Ohio: Judge David Hostetler gave Jason Householder, 23, and John Stockum, 21, two options of punishment for throwing beer bottles at a woman in a car: 60 days in jail or an hour of walking through downtown Coshocton in dresses, wigs and makeup. Judge Rules Sex Offender Is Too Short for PrisonSidney, Nebraska: Convicted child molester Richard W. Thompson, 50, was given 10 years’ probation in lieu of prison time when Judge Kristine Cecava declared that the 5-foot-1 man’s stature, combined with the nature of his crime, would put him in danger in jail. Man Forbidden to Have a GirlfriendOntario, Canada: Arrested for attacking his ex-girlfriend, Steven Cranley, 24, was declared by doctors to have difficulty coping with rejection and was thus ordered by Judge Rhys Morgan to refrain from “a romantic relationship of an intimate nature with a female person” for three years. Restaino ordered them released later that day, but the damage had been done; the judge was relieved of his position. Judge Makes Slumlord Live in His Own BuildingCleveland, Ohio: In what sounds like something out of a Joe Pesci movie, landlord Nicholas Dionisopoulos, who owned over 40 run-down properties in Cleveland, was sentenced to six months’ house arrest in one of the units, where he presumably experienced a series of wacky pratfalls before finally realizing the err of his ways – unless Hollywood lied to us. Man Sentenced to ChurchDavenport, Iowa: Running out of patience with longtime criminal Pachino Hill, 29, Judge Christine Dalton sentenced the man to eight weeks of church, along with counseling and probation. Man Ordered to Wear “Sex Offender” T-shirt at WorkNewark, Delaware: Convicted of exposing himself to 10-year-old girl while on the job, 69-year-old Russell Teeter was sentenced to 60 days in jail, with the unusual stipulation that upon his release, he must wear a t-shirt reading “I am a registered sex offender” at work for 22 straight months. Woman Has to Eat Bread and WaterHouston, Texas: Convicted of animal neglect that led to the euthanization of one of her horses, 28-year-old Melissa Dawn Sweeney was sentenced to 30 days in jail, the first three with nothing to eat but bread and water – which was “More than her horses got,” according to Judge Mike Peters.

Keywords: [“Judge”,”Sentenced”,”sentence”]
Source: http://www.crschools.net/blog/14-weird-and-unusual-criminal-sentences

Law Fish News for 04-22-2018

An analysis of law relating to Accident Claims in India

To facilitate this, provisions have been inserted for compulsory third party insurance and to provide a machinery of adjudication of claim in Motor Vehicle Act by amending Act No.110 of 1956, by which Section 93 to 109 with reference to third party insurance and Section 110(A) to 110(F) with reference to creation of Motor Accident Claims Tribunal and procedure for adjudication of claim has been provided. Initially the liability was restricted to a particular sum but after 1982 the liability of the Insurance Company has been made unlimited and even the defences of the Insurance Companies have been restricted so as to ensure payment of compensation to third parties. Chapter 11 provides for insurance of motor vehicle against third party risk and Chapter 12 provides for the constitution of Claims Tribunal and adjudication of claim and related matters. In this process Supreme Court has passed various judgments in recent past, which have restricted the statutory defenses to the Insurance Company to a greater extent as law relating to burden of proof have been totally changed. The courts one after one have held that the burden of proving availability of defence is on Insurance Company and Insurance Company has not only to lead evidence as to breach of condition of policy or violation of provisions of Section 149(2) but has to prove also that such act happens with the connivance or knowledge of the owner. Right of recovery from owner to Insurance Company:With the development of law, liability of the insurance Company has been made strict to the third party even if there is no negligence or defence to the Insurance Company are available. Conclusion and Suggestions: The law of accident claims is fast growing and the amendments to suit the requirement of the object are necessitated but at the same time interest of those should be watched who are disbursing the compensation i.e. Insurance Companies. A Scheme should be formulated with the State Police Authorities and the Insurance Companies by which the Insurance Company must know immediately after happening of accident and can make necessary investigations. Insurance Company comes in picture when the claim petition is filed and by that time the evidence can be created to convert the non-accident into accident and also on quantum. Third Party Insurance:In India, under the provisions of the Motor Vehicles Act, 1988, it is mandatory that every vehicle should have a valid Insurance to drive on the road. Any vehicle used for social, domestic and pleasure purpose and for the insurer’s business motor purpose should be insured.

Keywords: [“insurance”,”Vehicle”,”Company”]
Source: http://www.legalserviceindia.com/articles/km.htm

Recovered Memory Project » Legal Cases

“1. K.B.’s recovered memories of childhood sexual abuse by a neighbor and close family friend. K.B. v. Mathes. Filed in 1982, decided January 5, 1984 by Judge Justin L. Quackenbush. Judgment for the plaintiff; no appeal by defendant.”K.B.’s testimony is confirmed to some extent by her sister Lisa’s testimony. D’s recovered memory of sexual abuse by her father, Stanley Huntingford, 20-34 years earlier. As summarized by Justice Thackray, “Mr. Huntingford was convicted by a jury on six counts of what is now generally called sexual assault. The charges were brought by three of his five children. Of the three, two had continuous memories of the abuse while the third, D., recovered her memory 34 years after the first assault.” Her Majesty the Queen v. Stanley Charles Huntingford(Vancouver Registry No. CC940539). Frank Fitzpatrick’s memory of prolonged child sexual abuse by Father James Porter. “17. People v. Hoffman. David Hoffman, sentenced in Poughkeepsie, New York, June 15, 1994 for sexually abusing the young daughter of his girlfriend 14-16 years earlier.”The woman’s first memory of the abuse came when she was typing a report regard a sexual abuse case,” working in a probation office in Grand Rapids, Michigan. Lynn Crook, the oldest of six children, successfully sued her father for recovered memories of childhood sexual abuse. T. Jeffrey Haines’ recovered memory of sexual abuse by Rev. J. Faulton Hodge of the Episcopal Diocese of Western North Carolina. Two women in their forties whose recovered memories of sexual abuse by James A. Rogers in 1964 were corroborated by a third woman who never forgot the abuse and by Rogers’ own admission that he sexually assaulted all three girls in 1964., B2. See also Jackman, “Man Accused of ’60s Child Abuse,” Washington Post, B2.). 44. Bryan Bacon vs. Marianist Province of the US. Bryan Bacon recovered memory of 1985 abuse by his Catholic high school teacher Brother William Mueller in a 2004 therapy session and filed suit in 2005. Walker was convicted in 2007 on 30 of 35 counts of sexual abuse in the late 90s. Then a teacher at Bell Middle School in Jefferson County, CO, he abused three male students, one of whom recovered memory of the abuse in 2006 while watching a movie.

Keywords: [“abuse”,”memory”,”sexual”]
Source: https://blogs.brown.edu/recoveredmemory/case-archive/legal-cases

Recovered Memory Project » Legal Cases

“1. K.B.’s recovered memories of childhood sexual abuse by a neighbor and close family friend. K.B. v. Mathes. Filed in 1982, decided January 5, 1984 by Judge Justin L. Quackenbush. Judgment for the plaintiff; no appeal by defendant.”K.B.’s testimony is confirmed to some extent by her sister Lisa’s testimony. D’s recovered memory of sexual abuse by her father, Stanley Huntingford, 20-34 years earlier. As summarized by Justice Thackray, “Mr. Huntingford was convicted by a jury on six counts of what is now generally called sexual assault. The charges were brought by three of his five children. Of the three, two had continuous memories of the abuse while the third, D., recovered her memory 34 years after the first assault.” Her Majesty the Queen v. Stanley Charles Huntingford(Vancouver Registry No. CC940539). Frank Fitzpatrick’s memory of prolonged child sexual abuse by Father James Porter. “17. People v. Hoffman. David Hoffman, sentenced in Poughkeepsie, New York, June 15, 1994 for sexually abusing the young daughter of his girlfriend 14-16 years earlier.”The woman’s first memory of the abuse came when she was typing a report regard a sexual abuse case,” working in a probation office in Grand Rapids, Michigan. Lynn Crook, the oldest of six children, successfully sued her father for recovered memories of childhood sexual abuse. T. Jeffrey Haines’ recovered memory of sexual abuse by Rev. J. Faulton Hodge of the Episcopal Diocese of Western North Carolina. Two women in their forties whose recovered memories of sexual abuse by James A. Rogers in 1964 were corroborated by a third woman who never forgot the abuse and by Rogers’ own admission that he sexually assaulted all three girls in 1964., B2. See also Jackman, “Man Accused of ’60s Child Abuse,” Washington Post, B2.). 44. Bryan Bacon vs. Marianist Province of the US. Bryan Bacon recovered memory of 1985 abuse by his Catholic high school teacher Brother William Mueller in a 2004 therapy session and filed suit in 2005. Walker was convicted in 2007 on 30 of 35 counts of sexual abuse in the late 90s. Then a teacher at Bell Middle School in Jefferson County, CO, he abused three male students, one of whom recovered memory of the abuse in 2006 while watching a movie.

Keywords: [“abuse”,”memory”,”sexual”]
Source: https://blogs.brown.edu/recoveredmemory/case-archive/legal-cases