Law Fish News for 06-30-2018

Death Penalty Challenges

The 1960s brought challenges to the presumed legality of the death penalty. The Fifth, Eighth, and Fourteenth Amendments were interpreted as permitting the death penalty. In the early 1960s, it was suggested that the death penalty was a “Cruel and unusual” punishment and unconstitutional under the Eighth Amendment. In 1958, the Supreme Court decided in Trop v. Dulles, that the Eighth Amendment contained an “Evolving standard of decency that marked the progress of a maturing society.” Although Trop was not a death penalty case, abolitionists applied the Court’s logic to executions and maintained that the United States did indeed progress to a point that its “Standard of decency” should no longer tolerate the death penalty. In the late 1960s, the Supreme Court began to reconsider the way the death penalty was administered. In U.S. v. Jackson, the Supreme Court heard arguments regarding a provision of the federal kidnapping statute requiring that the death penalty be imposed only upon recommendation of a jury. The Court held that this practice was unconstitutional because it encouraged defendants to waive their right to a jury trial to ensure they would not receive a death sentence. In Witherspoon v. Illinois, the Supreme Court maintained that a potential juror’s reservations about the death penalty were insufficient grounds to prevent that person from serving on the jury in a death penalty case. Although the U.S. is one of the remaining holdouts among industrialized nations with respect to the death penalty, it is falling out of favor in a growing number of states. Since the death penalty is only applied to particularly heinous homicides, it is rarely enountered in the criminal justice system.

Keywords: [“death”,”penalty”,”Court”]
Source: http://criminal.findlaw.com/criminal-procedure/death-penalty-challenges.html

Compensatory Damages in Contract Cases – Damages

The purpose of reliance damages is to restore the victim of a breach to the position s/he would have been in if the contract had not been made. Generally, the objective of contract damages is to insure that the aggrieved or injured party receive what s/he expected from the bargain. I] A person injured by the wrongful acts of another has a duty to mitigate or minimize the damages and must protect himself/herself if s/he can do so with reasonable effort or at minimal expense, and can recover from the delinquent party only such damages as s/he could not, with reasonable effort, have avoided. The plaintiff can only recover special damages if the defendant knew or should have known of the special circumstances at the time the defendant entered into the contract. Iv] Damages will not be awarded for the mental distress or emotional trauma that may be caused by a breach of contract. UCC 2-712 provides that s/he may recover as damages the difference between the cost of goods in substitution for those due from the seller and the contract price together with incidental or consequential damages. Pursuant to UCC 2-713, s/he may have damages measured by the difference between the market price at the time of the breach and the contract price in addition to any incidental or consequential damages. UCC 2-715(2)(a) bars consequential damages where the loss could have been avoided by “Cover.” The objective of the law of contracts is not to punish the breaching party, but rather to grant relief to the victim of the breach, by making him/her “Whole” again. The general rule is that punitive damages as opposed to compensatory damages are not recoverable for breach of contract, even if the breach is willful. The plaintiff is not limited to damages recoverable in a contract action.

Keywords: [“damages”,”breach”,”contract”]
Source: https://damages.uslegal.com/compensatory-damages-in-contract-cases

Compensatory Damages in Contract Cases – Damages

The purpose of reliance damages is to restore the victim of a breach to the position s/he would have been in if the contract had not been made. Generally, the objective of contract damages is to insure that the aggrieved or injured party receive what s/he expected from the bargain. I] A person injured by the wrongful acts of another has a duty to mitigate or minimize the damages and must protect himself/herself if s/he can do so with reasonable effort or at minimal expense, and can recover from the delinquent party only such damages as s/he could not, with reasonable effort, have avoided. The plaintiff can only recover special damages if the defendant knew or should have known of the special circumstances at the time the defendant entered into the contract. Iv] Damages will not be awarded for the mental distress or emotional trauma that may be caused by a breach of contract. UCC 2-712 provides that s/he may recover as damages the difference between the cost of goods in substitution for those due from the seller and the contract price together with incidental or consequential damages. Pursuant to UCC 2-713, s/he may have damages measured by the difference between the market price at the time of the breach and the contract price in addition to any incidental or consequential damages. UCC 2-715(2)(a) bars consequential damages where the loss could have been avoided by “Cover.” The objective of the law of contracts is not to punish the breaching party, but rather to grant relief to the victim of the breach, by making him/her “Whole” again. The general rule is that punitive damages as opposed to compensatory damages are not recoverable for breach of contract, even if the breach is willful. The plaintiff is not limited to damages recoverable in a contract action.

Keywords: [“damages”,”breach”,”contract”]
Source: https://damages.uslegal.com/compensatory-damages-in-contract-cases

Law Fish News for 06-29-2018

Unique seminar prepares law students for child abuse cases

The St. Mary’s School of Law began piloting an innovative course this spring that teaches law students about issues related to representing clients in the abuse and neglect docket of Bexar County’s Children’s Courts Division. The Child Protective Services Seminar may be among the first writing seminars in the country to offer a combination of applicable law, skills, pre-trial and trial procedure, drafting, case analysis and client representation – as well as multiple perspectives on Child Protective Services. The National Association of Counsel for Children has indicated that it hopes other law schools will follow St. Mary’s Law’s lead in creating seminars with this focus. “Everyone comes to law school with a notion of saving the world and making things right,” said Rosie Gonzalez, an attorney and child welfare law specialist who is a volunteer course instructor. “This seminar is the perfect opportunity for students” to learn the skills and practical application of law required to help a critically important population. Professor of Law Ana M. Novoa created the course with support from Gonzalez, the National Association of Counsel for Children and the Honorable Peter Sakai of the 225th Judicial District Court of Bexar County. Generally, attorneys are required to be licensed for one year and complete a course before they can take appointments in the abuse and neglect docket. Students in the seminar will be allowed to take appointments as soon as they are licensed. “It takes a special kind of person with particular skills to be able to be an attorney in this docket,” said Novoa of dealing with this emotionally challenging legal content. “We have an obligation to teach that to students, just like we have an obligation to teach skills.”

Keywords: [“Law”,”Seminar”,”course”]
Source: https://www.stmarytx.edu/2017/law-students-prep-cases

Unique seminar prepares law students for child abuse cases

The St. Mary’s School of Law began piloting an innovative course this spring that teaches law students about issues related to representing clients in the abuse and neglect docket of Bexar County’s Children’s Courts Division. The Child Protective Services Seminar may be among the first writing seminars in the country to offer a combination of applicable law, skills, pre-trial and trial procedure, drafting, case analysis and client representation – as well as multiple perspectives on Child Protective Services. The National Association of Counsel for Children has indicated that it hopes other law schools will follow St. Mary’s Law’s lead in creating seminars with this focus. “Everyone comes to law school with a notion of saving the world and making things right,” said Rosie Gonzalez, an attorney and child welfare law specialist who is a volunteer course instructor. “This seminar is the perfect opportunity for students” to learn the skills and practical application of law required to help a critically important population. Professor of Law Ana M. Novoa created the course with support from Gonzalez, the National Association of Counsel for Children and the Honorable Peter Sakai of the 225th Judicial District Court of Bexar County. Generally, attorneys are required to be licensed for one year and complete a course before they can take appointments in the abuse and neglect docket. Students in the seminar will be allowed to take appointments as soon as they are licensed. “It takes a special kind of person with particular skills to be able to be an attorney in this docket,” said Novoa of dealing with this emotionally challenging legal content. “We have an obligation to teach that to students, just like we have an obligation to teach skills.”

Keywords: [“Law”,”Seminar”,”course”]
Source: https://www.stmarytx.edu/2017/law-students-prep-cases

Death Penalty Challenges

The 1960s brought challenges to the presumed legality of the death penalty. The Fifth, Eighth, and Fourteenth Amendments were interpreted as permitting the death penalty. In the early 1960s, it was suggested that the death penalty was a “Cruel and unusual” punishment and unconstitutional under the Eighth Amendment. In 1958, the Supreme Court decided in Trop v. Dulles, that the Eighth Amendment contained an “Evolving standard of decency that marked the progress of a maturing society.” Although Trop was not a death penalty case, abolitionists applied the Court’s logic to executions and maintained that the United States did indeed progress to a point that its “Standard of decency” should no longer tolerate the death penalty. In the late 1960s, the Supreme Court began to reconsider the way the death penalty was administered. In U.S. v. Jackson, the Supreme Court heard arguments regarding a provision of the federal kidnapping statute requiring that the death penalty be imposed only upon recommendation of a jury. The Court held that this practice was unconstitutional because it encouraged defendants to waive their right to a jury trial to ensure they would not receive a death sentence. In Witherspoon v. Illinois, the Supreme Court maintained that a potential juror’s reservations about the death penalty were insufficient grounds to prevent that person from serving on the jury in a death penalty case. Although the U.S. is one of the remaining holdouts among industrialized nations with respect to the death penalty, it is falling out of favor in a growing number of states. Since the death penalty is only applied to particularly heinous homicides, it is rarely enountered in the criminal justice system.

Keywords: [“death”,”penalty”,”Court”]
Source: http://criminal.findlaw.com/criminal-procedure/death-penalty-challenges.html

Law Fish News for 06-28-2018

Teaching Materials |

CASE STUDIES. Pangel v. Bend-LaPine School District: A student distributed an underground newspaper that advocated that students disrupt school by doing things like making bomb threats. State ex rel Oregonian Publishing Co. v. Deiz: The court had to decide whether a juvenile’s court proceedings should be closed to the public and the press. Of Clackamas County v. M.A.D.: The Oregon Supreme Court decided that an exception should exist for schools to be able to conduct a search of a student’s belongings as part of their “Reasonable steps” to protect its students. State v. B.A.H.: The Court followed the State ex rel. Of Clackamas County v. M.A.D. precedent and decided that a school had a right to search a student that was suspected of having drugs. State v. Yen Lin Wan: The Oregon Court of Appeals decided that evidence of a defendant resisting arrest and interfering with officers was admissible, but that the there should be a self-defense instruction read to the jury. State v. M.H.W.: A student admitted to previously smoking marijuana and emptied his pockets at the Dean’s request, revealing a lighter, a tin with marijuana, and a dagger. State v. Langley: The Oregon Supreme Court decided that it was not appropriate for the trial court to make the decision that Langley would represent himself. CASE STUDIES. State v. Cazares-Mendez: Trial court refused to allow testimonial evidence that another person had committed the crime because it wasn’t trustworthy. Mosley v. Portland Public Schools: A student at Jefferson High is stabbed by another student.

Keywords: [“v”,”student”,”court”]
Source: http://www.classroomlaw.org/resources/teaching-materials

Life Without Parole for Pot? 10 Worst Cases of Cruel and Unusual Punishment

He had a strong future ahead of him, but now he will rot in jail until he is 80 years old, because three marijuana sales to undercover cops, worth a total of $350, got him a 55-year sentence with no chance of parole. The bust came just three weeks after agents conducted a “Compliance check,” ensuring that the couple, who are medical marijuana patients, were following the legal guidelines to grow pot. In November 2009, Wilson was sentenced to five years in prison for possessing and manufacturing marijuana plants. The judge barred Wilson from telling the jury that he grew pot to relieve his symptoms, and did not allow an expert witness to testify on the benefits of marijuana for MS patients. In Oklahoma City, Leland James Dodd was given two life sentences, plus ten years, for buying fifty pounds of marijuana from undercover officers in a “Reverse sting.” Oklahoma is not alone in handing out life sentences for buying marijuana from the government. In Tuscaloosa County, Alabama, William Stephen Bonner, a truck driver, was sent away for life without possibility of parole after state narcotics agents delivered forty pounds of marijuana to his bedroom. Raymond Pope, a resident of Georgia, was lured to Baldwin County, Alabama, in 1990 with promises of cheap marijuana; he bought twenty-seven pounds from local sheriffs in a reverse sting, was convicted, and was sentenced to life without possibility of parole. The consequences of a marijuana arrest can be shockingly cruel, and they go well beyond those mentioned in this brief list. The government spends more than $7 billion annually to enforce marijuana prohibition, but has not successfully deterred marijuana use. More teens now smoke pot than cigarettes, but our relentless pursuit to punish marijuana users nonetheless continues apace.

Keywords: [“marijuana”,”year”,”pot”]
Source: https://www.alternet.org/story/156061/life_without_parole_for_pot…

Life Without Parole for Pot? 10 Worst Cases of Cruel and Unusual Punishment

He had a strong future ahead of him, but now he will rot in jail until he is 80 years old, because three marijuana sales to undercover cops, worth a total of $350, got him a 55-year sentence with no chance of parole. The bust came just three weeks after agents conducted a “Compliance check,” ensuring that the couple, who are medical marijuana patients, were following the legal guidelines to grow pot. In November 2009, Wilson was sentenced to five years in prison for possessing and manufacturing marijuana plants. The judge barred Wilson from telling the jury that he grew pot to relieve his symptoms, and did not allow an expert witness to testify on the benefits of marijuana for MS patients. In Oklahoma City, Leland James Dodd was given two life sentences, plus ten years, for buying fifty pounds of marijuana from undercover officers in a “Reverse sting.” Oklahoma is not alone in handing out life sentences for buying marijuana from the government. In Tuscaloosa County, Alabama, William Stephen Bonner, a truck driver, was sent away for life without possibility of parole after state narcotics agents delivered forty pounds of marijuana to his bedroom. Raymond Pope, a resident of Georgia, was lured to Baldwin County, Alabama, in 1990 with promises of cheap marijuana; he bought twenty-seven pounds from local sheriffs in a reverse sting, was convicted, and was sentenced to life without possibility of parole. The consequences of a marijuana arrest can be shockingly cruel, and they go well beyond those mentioned in this brief list. The government spends more than $7 billion annually to enforce marijuana prohibition, but has not successfully deterred marijuana use. More teens now smoke pot than cigarettes, but our relentless pursuit to punish marijuana users nonetheless continues apace.

Keywords: [“marijuana”,”year”,”pot”]
Source: https://www.alternet.org/story/156061/life_without_parole_for_pot…

Law Fish News for 06-26-2018

Commonly Used Terms

Definition: A mandatory plan that describes how a youth will leave the child welfare system and return safely to family or find a new family setting. The CPP must contain other elements that are required by federal and state law regarding the child’s needs related to areas such as education, health care, and contact with families and the services that must be provided to address any identified needs or problems. Definition: An individual who is employed by the county child welfare agency or a private provider of child welfare services and is assigned to work with a child and his/her family to address issues preventing the child from living safely in the home or to arrange or provide services that will move the child toward placement with relatives or a family that can provide a safe and nurturing home. If the child is placed in substitute care or under the supervision of the court, the child welfare caseworker will have many case management and other responsibilities that are outlined in federal and state law, such as requirements for visits with the child, planning meetings, and court reviews. Pennsylvania has a state-run, county-administered child welfare system. The state agency that oversees the provision of child welfare services is called the Office of Children, Youth, and Families and is located within the Department of Public Welfare. Some counties provide child welfare services directly to children while others contract with private providers to provide services directly to children. Definition: An individual appointed by the court to represent the best interests of the child. The CASA looks into all aspects of the child’s life and his or her situation and needs in the child welfare system. The CASA provides reports to the court on the status of the child as well as recommendations.

Keywords: [“child”,”youth”,”court”]
Source: http://jlc.org/news-room/media-resources/glossary

Scalia Defends Originalism as Best Methodology for Judging Law

Examining what the Founders meant when writing the Constitution is the best method for judging cases, U.S. Supreme Court Justice Antonin Scalia said Friday during a lecture sponsored by the Thomas Jefferson Center for the Protection of Freedom of Expression. “My burden is not to show that originalism is perfect, but that it beats the other alternatives, and that, believe me, is not difficult,” Scalia said. “I deny the premise that law has nothing to do with historical inquiry,” Scalia said, dismissing critics’ assertions that inquiry into the past has nothing to do with law. Scalia pointed to District of Columbia v. Heller, a 2008 Supreme Court case in which several D.C. residents challenged the District’s ban on handguns and restrictions on other firearms. The right to have arms for personal use for self-defense was regarded as one of the fundamental rights of Englishmen, Scalia said. Critics of originalism exaggerate the difficulty of determining original meaning, Scalia said. Twenty years ago amicus briefs were unreliable in their spare analysis of textual and historical meaning, Scalia said. Although briefs now address the originalist approach, Scalia said many briefs are not helpful, including those from trade associations, which seem designed to “Assure the association members that their staff is on the job.” Academic briefs written by a small number of faculty that are “Circulated like petitions” and signed by a large number of faculty often have a “Pretense to scholarly impartiality.” Historians who have published serious studies on the subject agree that the right to bear arms has long been understood as an individual right, Scalia said. Originalism is not a guarantee against judicial abuse, Scalia admitted.

Keywords: [“Scalia”,”right”,”Court”]
Source: http://content.law.virginia.edu/news/2010_spr/scalia.htm

Scalia Defends Originalism as Best Methodology for Judging Law

Examining what the Founders meant when writing the Constitution is the best method for judging cases, U.S. Supreme Court Justice Antonin Scalia said Friday during a lecture sponsored by the Thomas Jefferson Center for the Protection of Freedom of Expression. “My burden is not to show that originalism is perfect, but that it beats the other alternatives, and that, believe me, is not difficult,” Scalia said. “I deny the premise that law has nothing to do with historical inquiry,” Scalia said, dismissing critics’ assertions that inquiry into the past has nothing to do with law. Scalia pointed to District of Columbia v. Heller, a 2008 Supreme Court case in which several D.C. residents challenged the District’s ban on handguns and restrictions on other firearms. The right to have arms for personal use for self-defense was regarded as one of the fundamental rights of Englishmen, Scalia said. Critics of originalism exaggerate the difficulty of determining original meaning, Scalia said. Twenty years ago amicus briefs were unreliable in their spare analysis of textual and historical meaning, Scalia said. Although briefs now address the originalist approach, Scalia said many briefs are not helpful, including those from trade associations, which seem designed to “Assure the association members that their staff is on the job.” Academic briefs written by a small number of faculty that are “Circulated like petitions” and signed by a large number of faculty often have a “Pretense to scholarly impartiality.” Historians who have published serious studies on the subject agree that the right to bear arms has long been understood as an individual right, Scalia said. Originalism is not a guarantee against judicial abuse, Scalia admitted.

Keywords: [“Scalia”,”right”,”Court”]
Source: http://content.law.virginia.edu/news/2010_spr/scalia.htm

Law Fish News for 06-25-2018

How to Succeed in Law School

Based on my success at Loyola Law School I was able to transfer into many top ten law schools, including Berkeley, which is where I choose to attend. I realized I had performed poorly in undergrad and on the LSAT and decided to take the entire summer prepping for 1L. I went the typical gunner route and read all 6 Examples and Explanations books, Getting to Maybe, Law School Confidential, Planet Law School, did LEEWS, and Delaney’s Logic for Lawyers. Law School Confidential is a great introduction to law school. I read Law School Confidential first, then Planet Law School, then did 3 E&E’s, then read Getting to Maybe, then another 3 E&E’s, followed by Delaney’s, and finally LEEWS right before school started. If your professor uses Powerpoints or words the law in a certain manner, USE THAT WORDING by putting it on your outline and later on the exam. Every once in a while, the professor will give you the law or something useful for the exam. Next, the best thing I think I did that made the biggest difference was that I put the black letter law from my outline into an “Exam paragraph format.” Basically I put the black letter law into short simple sentences, along with any nuances, into paragraphs and practiced memorizing it by typing it out. I practiced writing out the law in my “Exam Prep/Hypo” document, and I would basically type the black letter law and nuances in every class like usually 10+ times until I had it memorized cold. During the final 3-5 days before the exam, I would write out the entire black letter law as prepared for the class 2-3 times a day, do maybe one written practice a day if I had any time left, issue spot more practice exams, read a review of the black letter law, and do the CALI lessons. Basically, the exam requires memorizing the law plus analyzing.

Keywords: [“exam”,”law”,”read”]
Source: http://www.top-law-schools.com/loyola-study-advice.html

How to Succeed in Law School

Based on my success at Loyola Law School I was able to transfer into many top ten law schools, including Berkeley, which is where I choose to attend. I realized I had performed poorly in undergrad and on the LSAT and decided to take the entire summer prepping for 1L. I went the typical gunner route and read all 6 Examples and Explanations books, Getting to Maybe, Law School Confidential, Planet Law School, did LEEWS, and Delaney’s Logic for Lawyers. Law School Confidential is a great introduction to law school. I read Law School Confidential first, then Planet Law School, then did 3 E&E’s, then read Getting to Maybe, then another 3 E&E’s, followed by Delaney’s, and finally LEEWS right before school started. If your professor uses Powerpoints or words the law in a certain manner, USE THAT WORDING by putting it on your outline and later on the exam. Every once in a while, the professor will give you the law or something useful for the exam. Next, the best thing I think I did that made the biggest difference was that I put the black letter law from my outline into an “Exam paragraph format.” Basically I put the black letter law into short simple sentences, along with any nuances, into paragraphs and practiced memorizing it by typing it out. I practiced writing out the law in my “Exam Prep/Hypo” document, and I would basically type the black letter law and nuances in every class like usually 10+ times until I had it memorized cold. During the final 3-5 days before the exam, I would write out the entire black letter law as prepared for the class 2-3 times a day, do maybe one written practice a day if I had any time left, issue spot more practice exams, read a review of the black letter law, and do the CALI lessons. Basically, the exam requires memorizing the law plus analyzing.

Keywords: [“exam”,”law”,”read”]
Source: http://www.top-law-schools.com/loyola-study-advice.html

Commonly Used Terms

Definition: A mandatory plan that describes how a youth will leave the child welfare system and return safely to family or find a new family setting. The CPP must contain other elements that are required by federal and state law regarding the child’s needs related to areas such as education, health care, and contact with families and the services that must be provided to address any identified needs or problems. Definition: An individual who is employed by the county child welfare agency or a private provider of child welfare services and is assigned to work with a child and his/her family to address issues preventing the child from living safely in the home or to arrange or provide services that will move the child toward placement with relatives or a family that can provide a safe and nurturing home. If the child is placed in substitute care or under the supervision of the court, the child welfare caseworker will have many case management and other responsibilities that are outlined in federal and state law, such as requirements for visits with the child, planning meetings, and court reviews. Pennsylvania has a state-run, county-administered child welfare system. The state agency that oversees the provision of child welfare services is called the Office of Children, Youth, and Families and is located within the Department of Public Welfare. Some counties provide child welfare services directly to children while others contract with private providers to provide services directly to children. Definition: An individual appointed by the court to represent the best interests of the child. The CASA looks into all aspects of the child’s life and his or her situation and needs in the child welfare system. The CASA provides reports to the court on the status of the child as well as recommendations.

Keywords: [“child”,”youth”,”court”]
Source: http://jlc.org/news-room/media-resources/glossary

Law Fish News for 06-24-2018

Five important employment law cases in 2016 and five more to come

We round up five significant employment law decisions that have been made so far this year, and look at five more important judgments expected before the end of 2016. So far in 2016, there have been notable employment law cases on: holiday pay; childcare vouchers; social media at work; fraudulent sick leave; and reasonable adjustments for disabled people. The EAT agreed with the employment tribunal that the Working Time Regulations 1998 can be interpreted to require employers to include a worker’s commission payments in the calculation of his or her holiday pay. The ECHR held that the employer’s actions were justified because it was seeking to verify that the employee was using his work computer and social media account for work purposes only. Top five employment law decisions still to come in 2016. The EAT in Chesterton set a low bar for the “Public interest” test, with a worker whose contract is potentially being breached able to raise concerns about the issue as long as the worker reasonably believes that it is “In the public interest”. The employees contend that historically work done in the retail stores has been perceived as “Women’s work” and thought to be worth less than work in the distribution depots, which was traditionally viewed as men’s work. Bougnaoui and another v Micropole Univers; Achbita and another v G4S Secure Solutions NV. Perhaps the biggest employment case law controversy of 2016 so far came with the Advocate General’s opinion in Achbita on when employers can ban religious dress, including Muslim headscarves. Aslam and others v Uber BV. The legal challenge by Uber drivers, who are regarded by Uber as self-employed, is a high-profile employment law case in 2016. The test employment status case will determine whether Uber drivers are self-employed or workers.

Keywords: [“work”,”case”,”employment”]
Source: https://www.personneltoday.com/hr/five-important-employment-law…

What is “specific performance”?

“Specific performance,” like an injunction, requires a party to a lawsuit to take a specific action. Unlike injunctions, which have a wide range of uses, specific performance is usually ordered only in contract-related cases. An order of specific performance usually requires one party to the contract to perform an action agreed upon in the contract. Usually, specific performance is required when a unique object or piece of property is involved in the case and money damages will not be enough to compensate the injured person for the loss of the specific item. Like injunctions, courts are not required to order specific performance in every civil law case. Rather, each court must weigh the individual factors of a case to determine whether specific performance is appropriate. In many cases, specific performance will not adequately compensate the plaintiff for the loss or injury involved. In these cases, courts will rarely grant a request for specific performance, even if money damages will not adequately compensate the plaintiff for his injury. Specific performance is impossible; Specific performance would severely harm the defendant; The contract is unconscionable, was made for no consideration, or is otherwise defective in a way that would make specific performance unfair to the defendant; The plaintiff has misbehaved or failed to hold up his end of the bargain; The contract is a contract for services – a person required to give a service against his will may deliberately do it poorly; The contract says it can be terminated at will by either party, simply by walking away; Specific performance would require constant supervision. A party who refuses to fulfill an order for specific performance may face multiple consequences, including being held in contempt of court and heavy fines or monetary penalties.

Keywords: [“Specific”,”performance”,”art”]
Source: http://www.rotlaw.com/legal-library/what-is-specific-performance

What is “specific performance”?

“Specific performance,” like an injunction, requires a party to a lawsuit to take a specific action. Unlike injunctions, which have a wide range of uses, specific performance is usually ordered only in contract-related cases. An order of specific performance usually requires one party to the contract to perform an action agreed upon in the contract. Usually, specific performance is required when a unique object or piece of property is involved in the case and money damages will not be enough to compensate the injured person for the loss of the specific item. Like injunctions, courts are not required to order specific performance in every civil law case. Rather, each court must weigh the individual factors of a case to determine whether specific performance is appropriate. In many cases, specific performance will not adequately compensate the plaintiff for the loss or injury involved. In these cases, courts will rarely grant a request for specific performance, even if money damages will not adequately compensate the plaintiff for his injury. Specific performance is impossible; Specific performance would severely harm the defendant; The contract is unconscionable, was made for no consideration, or is otherwise defective in a way that would make specific performance unfair to the defendant; The plaintiff has misbehaved or failed to hold up his end of the bargain; The contract is a contract for services – a person required to give a service against his will may deliberately do it poorly; The contract says it can be terminated at will by either party, simply by walking away; Specific performance would require constant supervision. A party who refuses to fulfill an order for specific performance may face multiple consequences, including being held in contempt of court and heavy fines or monetary penalties.

Keywords: [“Specific”,”performance”,”art”]
Source: http://www.rotlaw.com/legal-library/what-is-specific-performance

Law Fish News for 06-23-2018

The Supreme Court Is About to Hear the Case That Could Destroy Obamacare – Mother Jones

On March 4, the Supreme Court will hear oral arguments in King v. Burwell, a lawsuit designed by conservative advocates to destroy Obamacare. So who are the two men and two women that CEI handpicked to front its assault on Obamacare? What harm had they suffered as a result of the health care law? And why are they willing to put their names on a suit that could jeopardize the health coverage of millions of fellow Americans? She will qualify for Medicare in June, around the same time the Supreme Court is likely to issue a decision in this case. Levy has yet to attend any of the court proceedings in King v. Burwell, because she “Didn’t think the case was going anywhere.” At the time we spoke, Levy said that she had never met the lawyers handling the case in person, despite the fact that it had been pending for more than a year. She declined to talk about the case or the couple’s health care expenses, referring me to the lawyers handling the case. The lawsuit remained alive thanks to a similar case, also spearheaded by CEI, that was heard by a three-judge panel of the DC Circuit Court of Appeals and had a different outcome-one that the full appeals court was expected to reverse after hearing the case. A reversal in the DC court would have meant there was no conflict among the circuit courts over the legal issue at the heart of these cases-and less reason for the Supreme Court to take the case. The Supreme Court made the unusual move of accepting the King case before the DC Circuit could finish its work. “Linda Brown was the only plaintiff in Brown v. Board of Education,” he retorted, invoking the famous Supreme Court case that led to school desegregation. If his case does result in wiping out health coverage for millions of Obamacare recipients, he said, it won’t be his fault.

Keywords: [“health”,”case”,”plaintiff”]
Source: https://www.motherjones.com/politics/2015/02/king-burwell-supreme…

The Supreme Court Is About to Hear the Case That Could Destroy Obamacare – Mother Jones

On March 4, the Supreme Court will hear oral arguments in King v. Burwell, a lawsuit designed by conservative advocates to destroy Obamacare. So who are the two men and two women that CEI handpicked to front its assault on Obamacare? What harm had they suffered as a result of the health care law? And why are they willing to put their names on a suit that could jeopardize the health coverage of millions of fellow Americans? She will qualify for Medicare in June, around the same time the Supreme Court is likely to issue a decision in this case. Levy has yet to attend any of the court proceedings in King v. Burwell, because she “Didn’t think the case was going anywhere.” At the time we spoke, Levy said that she had never met the lawyers handling the case in person, despite the fact that it had been pending for more than a year. She declined to talk about the case or the couple’s health care expenses, referring me to the lawyers handling the case. The lawsuit remained alive thanks to a similar case, also spearheaded by CEI, that was heard by a three-judge panel of the DC Circuit Court of Appeals and had a different outcome-one that the full appeals court was expected to reverse after hearing the case. A reversal in the DC court would have meant there was no conflict among the circuit courts over the legal issue at the heart of these cases-and less reason for the Supreme Court to take the case. The Supreme Court made the unusual move of accepting the King case before the DC Circuit could finish its work. “Linda Brown was the only plaintiff in Brown v. Board of Education,” he retorted, invoking the famous Supreme Court case that led to school desegregation. If his case does result in wiping out health coverage for millions of Obamacare recipients, he said, it won’t be his fault.

Keywords: [“health”,”case”,”plaintiff”]
Source: https://www.motherjones.com/politics/2015/02/king-burwell-supreme…

Five important employment law cases in 2016 and five more to come

We round up five significant employment law decisions that have been made so far this year, and look at five more important judgments expected before the end of 2016. So far in 2016, there have been notable employment law cases on: holiday pay; childcare vouchers; social media at work; fraudulent sick leave; and reasonable adjustments for disabled people. The EAT agreed with the employment tribunal that the Working Time Regulations 1998 can be interpreted to require employers to include a worker’s commission payments in the calculation of his or her holiday pay. The ECHR held that the employer’s actions were justified because it was seeking to verify that the employee was using his work computer and social media account for work purposes only. Top five employment law decisions still to come in 2016. The EAT in Chesterton set a low bar for the “Public interest” test, with a worker whose contract is potentially being breached able to raise concerns about the issue as long as the worker reasonably believes that it is “In the public interest”. The employees contend that historically work done in the retail stores has been perceived as “Women’s work” and thought to be worth less than work in the distribution depots, which was traditionally viewed as men’s work. Bougnaoui and another v Micropole Univers; Achbita and another v G4S Secure Solutions NV. Perhaps the biggest employment case law controversy of 2016 so far came with the Advocate General’s opinion in Achbita on when employers can ban religious dress, including Muslim headscarves. Aslam and others v Uber BV. The legal challenge by Uber drivers, who are regarded by Uber as self-employed, is a high-profile employment law case in 2016. The test employment status case will determine whether Uber drivers are self-employed or workers.

Keywords: [“work”,”case”,”employment”]
Source: https://www.personneltoday.com/hr/five-important-employment-law…

Law Fish News for 06-22-2018

Sidley Austin, White & Case Take Lead on Unusual Dynegy Bankruptcy

As of Tuesday, a series of unusual Chapter 11 filings by subsidiaries of Houston-based energy company Dynegy Inc., appeared to be having the intended effect-at least in the short-term-of protecting the parent entity’s shareholders while reducing $4 billion in debt due to bondholders. Dynegy is attempting to flip that formula on its head by having its Dynegy Holdings unit and several other subsidiaries seek Chapter 11 protection. The parent company’s plan-to use the bankruptcy process to cut debt and shed leases on several power plants-was well received by the market, initially at least, as Dynegy shares soared in trading Tuesday. The Chapter 11 filings-made late Monday in bankruptcy court in Poughkeepsise, New York-follow a September reorganization of Dynegy’s corporate structure that saw assets linked to coal-fired power plants transferred from Dynegy Holdings to the parent company. The Wall Street Journal reports that the move left the holding company without a claim to those assets and holding only Dynegy bond debt. In conjunction with its subsidiaries’ Chapter 11 filings, Dynegy announced a deal with bondholders holding $1.4 billion in debt. White & Case financial restructuring and insolvency partner Gerard Uzzi and other lawyers from the firm are serving as special litigation counsel to Dynegy, according to court filings by the firm. White & Case has previously advised Dynegy on the development and project financing for various power facilities. Sidley Austin corporate reorganization and bankruptcy group cochair James Conlan, and bankruptcy partners Jeffrey Bjork, Paul Caruso, and Matthew Clemente are serving as lead bankruptcy counsel to Dynegy. Dynegy lists assets of nearly $13.8 billion against potential liabilities of almost $6.2 billion in the bankruptcy filings of its subsidiaries.

Keywords: [“Dynegy”,”bankruptcy”,”company”]
Source: http://amlawdaily.typepad.com/amlawdaily/2011/11/dynegy-bankruptcy.html

Amendment VIII – Excess Bail or Fines, Cruel and Unusual Punishment – System

The amendment reads: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”[i] The Eighth Amendment has three clauses, namely the excessive bail clause; excessive fines clause; and cruel and unusual punishment clause. Excessive Bail clause: The excessive bail clause revolves around the principle that “An accused is presumed innocent until found guilty.” Bail is an amount the courts may require an accused to furnish as security to ensure the accused person’s appearance for trial. The bail amount is decided by the court, the excessive bail clause requires reasonableness in fixing the amount. If the accused is able to furnish the bail amount to the court, then the accused will be set free on bail until trial. The bail system ensures that the accused will come back to court for trial. Courts consider the following in determining bail: 1) the severity of the offence, 2) levels of evidence proffered against the accused, 3) family and employment ties and commitments of the accused, 4) if the accused is able to furnish the bond amount, and 5) if there is any possibility for the accused to flee. Using the standards above, courts set a reasonable bail amount however, the bail amount should not be too low so that the accused is enticed into forfeiting the bail amount and fleeing. If the accused appears for future court proceedings the accused will get back his/her bail money upon conclusion of the court proceedings. Cruel and unusual punishment: According to this clause, state and federal governments shall not sentence an accused to cruel and unusual punishments, however heinous the criminal act may be. Accordingly a particular punishment is considered cruel and unusual, if that punishment was prohibited during the time the Eight Amendment was ratified.

Keywords: [“bail”,”accused”,”court”]
Source: https://system.uslegal.com/u-s-constitution/amendment-viii-excess…

Amendment VIII – Excess Bail or Fines, Cruel and Unusual Punishment – System

The amendment reads: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”[i] The Eighth Amendment has three clauses, namely the excessive bail clause; excessive fines clause; and cruel and unusual punishment clause. Excessive Bail clause: The excessive bail clause revolves around the principle that “An accused is presumed innocent until found guilty.” Bail is an amount the courts may require an accused to furnish as security to ensure the accused person’s appearance for trial. The bail amount is decided by the court, the excessive bail clause requires reasonableness in fixing the amount. If the accused is able to furnish the bail amount to the court, then the accused will be set free on bail until trial. The bail system ensures that the accused will come back to court for trial. Courts consider the following in determining bail: 1) the severity of the offence, 2) levels of evidence proffered against the accused, 3) family and employment ties and commitments of the accused, 4) if the accused is able to furnish the bond amount, and 5) if there is any possibility for the accused to flee. Using the standards above, courts set a reasonable bail amount however, the bail amount should not be too low so that the accused is enticed into forfeiting the bail amount and fleeing. If the accused appears for future court proceedings the accused will get back his/her bail money upon conclusion of the court proceedings. Cruel and unusual punishment: According to this clause, state and federal governments shall not sentence an accused to cruel and unusual punishments, however heinous the criminal act may be. Accordingly a particular punishment is considered cruel and unusual, if that punishment was prohibited during the time the Eight Amendment was ratified.

Keywords: [“bail”,”accused”,”court”]
Source: https://system.uslegal.com/u-s-constitution/amendment-viii-excess…

Law Fish News for 06-21-2018

CALIFORNIA ATTORNEY’S FEES

In this first one, homeowner appealed a trial court’s award of appellate fees to HOA in a CC&R dispute under both a prior settlement agreement and the Davis-Stirling Act. An action to enforce a settlement agreement does permit a fee award under the Davis-Stirling Act.) HOA also did prevail, given that it forced the homeowner to remedy the CC&R violations-its primary litigation objective. Justice Moore authored the decision on behalf of a 3-0 panel. The second one involved an ex-wife’s appeal of a needs-based $10,000 fees award to ex-husband under Family Code sections 2030 and 2032. The award was reversed because the trial judge was unaware of a capped $6,000 fee arrangement between ex-wife and her counsel, it was unclear if consideration was given to any net income received by husband from assets, and it was unclear if the trial court considered wife’s monthly income. The last opinion in the trifecta reviewed here involved a battle between attorneys representing a client in various proceedings, with the appellant suing for more compensation before finally admitting at trial that he basically received what was owed, leading the trial judge to enter judgment in favor of the opposing attorneys. Opposing attorneys were granted fees under a contractual fees clause in an operative settlement agreement between some of the parties. The trial judge’s entry of an actual judgment precluded appellant’s argument that it really voluntarily the dismissed the matter so as to rise to the Santisas bar to fee recovery. Appellant argued that attorneys represented themselves in defense, but the record showed that one co-defendant represented another defendant attorney and that another attorney had independent representation, dashing hopes that a Trope v. Katz defense would apply. Justice Moore also authored this one on behalf of the 4/3 panel.

Keywords: [“fee”,”trial”,”attorney”]
Source: http://www.calattorneysfees.com/cases_family_law_awards

CALIFORNIA ATTORNEY’S FEES

In this first one, homeowner appealed a trial court’s award of appellate fees to HOA in a CC&R dispute under both a prior settlement agreement and the Davis-Stirling Act. An action to enforce a settlement agreement does permit a fee award under the Davis-Stirling Act.) HOA also did prevail, given that it forced the homeowner to remedy the CC&R violations-its primary litigation objective. Justice Moore authored the decision on behalf of a 3-0 panel. The second one involved an ex-wife’s appeal of a needs-based $10,000 fees award to ex-husband under Family Code sections 2030 and 2032. The award was reversed because the trial judge was unaware of a capped $6,000 fee arrangement between ex-wife and her counsel, it was unclear if consideration was given to any net income received by husband from assets, and it was unclear if the trial court considered wife’s monthly income. The last opinion in the trifecta reviewed here involved a battle between attorneys representing a client in various proceedings, with the appellant suing for more compensation before finally admitting at trial that he basically received what was owed, leading the trial judge to enter judgment in favor of the opposing attorneys. Opposing attorneys were granted fees under a contractual fees clause in an operative settlement agreement between some of the parties. The trial judge’s entry of an actual judgment precluded appellant’s argument that it really voluntarily the dismissed the matter so as to rise to the Santisas bar to fee recovery. Appellant argued that attorneys represented themselves in defense, but the record showed that one co-defendant represented another defendant attorney and that another attorney had independent representation, dashing hopes that a Trope v. Katz defense would apply. Justice Moore also authored this one on behalf of the 4/3 panel.

Keywords: [“fee”,”trial”,”attorney”]
Source: http://www.calattorneysfees.com/cases_family_law_awards

Sidley Austin, White & Case Take Lead on Unusual Dynegy Bankruptcy

As of Tuesday, a series of unusual Chapter 11 filings by subsidiaries of Houston-based energy company Dynegy Inc., appeared to be having the intended effect-at least in the short-term-of protecting the parent entity’s shareholders while reducing $4 billion in debt due to bondholders. Dynegy is attempting to flip that formula on its head by having its Dynegy Holdings unit and several other subsidiaries seek Chapter 11 protection. The parent company’s plan-to use the bankruptcy process to cut debt and shed leases on several power plants-was well received by the market, initially at least, as Dynegy shares soared in trading Tuesday. The Chapter 11 filings-made late Monday in bankruptcy court in Poughkeepsise, New York-follow a September reorganization of Dynegy’s corporate structure that saw assets linked to coal-fired power plants transferred from Dynegy Holdings to the parent company. The Wall Street Journal reports that the move left the holding company without a claim to those assets and holding only Dynegy bond debt. In conjunction with its subsidiaries’ Chapter 11 filings, Dynegy announced a deal with bondholders holding $1.4 billion in debt. White & Case financial restructuring and insolvency partner Gerard Uzzi and other lawyers from the firm are serving as special litigation counsel to Dynegy, according to court filings by the firm. White & Case has previously advised Dynegy on the development and project financing for various power facilities. Sidley Austin corporate reorganization and bankruptcy group cochair James Conlan, and bankruptcy partners Jeffrey Bjork, Paul Caruso, and Matthew Clemente are serving as lead bankruptcy counsel to Dynegy. Dynegy lists assets of nearly $13.8 billion against potential liabilities of almost $6.2 billion in the bankruptcy filings of its subsidiaries.

Keywords: [“Dynegy”,”bankruptcy”,”company”]
Source: http://amlawdaily.typepad.com/amlawdaily/2011/11/dynegy-bankruptcy.html