J. Gerrard argued, and I agree, that we as lawyers have a responsibility beyond mere legal advocacy to improve the lives of our clients. As Christian lawyers, especially, we must love them with the same zeal that Christ loved the prostitutes, swindlers, drunkards, beggars, lepers, and outcasts.In other words our clients; BTW I need another $5K retainer to go to trial.
Tuesday, February 28, 2006
Sunday, February 26, 2006
The Rooker-Feldman doctrine does not bar actions by nonparties to the earlier state-court judgment simply because, for purposes of preclusion law, they could be considered in privity with a party to the judgment...Incorporation of preclusion principles into Rooker-Feldman risks turning that limited doctrine into a uniform federal rule governing the preclu-sive effect of state-court judgments, contrary to the FullFaith and Credit Act.
Friday, February 24, 2006
In the absence of new evidence which would serve to distinguish this record from the record reviewed by the Supreme Court in Stenberg, we are bound by the Supreme Court’s conclusion that “substantial medical authority” supports the medical necessity of a health exception.
National Appeals Division of Department of Agriculture's interpretation of regulations and forms concerning delivery of commodities was reasonable and entitled to deference; government was not estopped from requiring physical delivery of the commodities onthe ground that a employee allegedly told plaintiff constructive deliveryof the commodities was sufficient.
the NAD determined that the "delivery" required by CCC-681-1 was physical delivery. This was not plainly erroneous. The regulations governing these transactions during the relevant time period referred to the "removal of" and"moving" of farm-stored commodities. See 7 C.F.R §§ 1421.20(a), (e); 1421.23(b)
Wednesday, February 22, 2006
For the determination of custody arrangements and the time to be spent with each parent, each parent has the right to a jury trial and may request such. Thedetermination shall be based upon the court shall consider the best interests of the minor childSome judges arent too happy about this, fearing that adding more cases eligible for jury trials will clog their dockets even more. ON the other hand, if it gets harder to take child custody cases to court, maybe more will settle. In the unlikely event a good law like this ever passes however, the legislature should think about changing the Supreme Court's standard of review for child custody cases, as it will do little good to give decision making power to juries only to have capricious appellate judges' overruling them with the power to review cases de novo.
Tuesday, February 21, 2006
In Ilave, a town of 90,000 near Lake Titicaca, some 560 miles southeast of Lima, the capital, lawfully elected Mayor Cirilo Robles was pulled out of a town council meeting, dragged several blocks, and beaten to death in the town square by an enraged mob on Apr. 26, the 25th day of a strike demanding that he resign.Nevertheless, Waskar Ari justified the lynching: "The reaction by the Aymaras in Ilave "should not surprise anyone," said Bolivian Aymara historian, sociologist, and activist Waskar Ari Chachaki."The Aymara have a long tradition of collective government. For them democracy must be direct. It is not enough for them to go and vote every four or five years. They demand constant participation in decision-making," Waskar also favors ethnic "cleanliness:"
"In the rest of Latin America it might seem unusual for Peru’s Aymara Indians to want to separate from Lima and join Bolivia. But for us it is normal."Segregationsists from the good old Jim Crow days might find a kindred spirit however, as he opposes racial mixing:
. " Interracial relations are "process of ethnic domestication" to be rejected by "counter-hegemonic fuerzas".Professor Waskar expresses at best disdain for the "nation=state," labelling them artificial constructs of imperial powers, and the obstacle to native independence: When those national states (i.e. Peru, Bolivia, etc.) will disappear, "Amerindian nationalism will emerge from the ruins..." Change the date to the 1930's and the location to central europe and what do you have? http://www.frontpagemag.com/Articles/ReadArticle.asp?ID=16843
Monday, February 20, 2006
Friday, February 17, 2006
The allegations of Gonzales' motion, if proven, demonstrate that Gonzales' counsel advised him that the exact same evidence used at Leonor's trial would be used in Gonzales' trial, that the evidence used at Leonor's trial which implicated Gonzales consisted entirely of testimony by witnesses of statements made by Leonor, and that the statements were admissible against Leonor because they were his own statements being offered against himself, but those statements could be argued to be hearsay if offered against Gonzales. Because no evidentiary hearing was granted, we are unable to determine why counsel might have believed Leonor's out-of-court statements would be admissible against Gonzales. Although it is entirely possible that counsel had a reason for such belief or a reason for advising Gonzales that the statements would be admissible, there is simply no way for this court to know without an evidentiary hearing, and speculation at this time would be improper. At this stage of the proceedings, there is no way for this court to know if the advice was even given, let alone whether the advice was correct. It is sufficient that the allegations of the motion, if proven, demonstrate Gonzales might be entitled to relief and that the records and files do not affirmatively demonstrate he is entitled to no relief. As such, we reverse, and remand for an evidentiary hearing on Gonzales' motion for postconviction relief.
Monday, February 13, 2006
Hall of Famer Judge Joseph Bataillon has recently produced two more important opinions on post-Booker sentencing procedure and practice: US v.Fleck, No. 8:03-cr-00194 (D. Neb. Feb. 6, 2006), and US v. Beltran-Acre, No.8:02-cr-00279(D. Neb. Feb. 2, 2006).You have to admire how thoroughly Judge Battailon analyzed all the strings Booker left hanging, but I dont think the Supremes envisioned turning every sentencing into a mini-trial after that ruling.
Saturday, February 11, 2006
Subsection (2)(c)(ii)(C) does not require that an officer requesting assistance tell the responding officer that he or she fears evidence will be lost. It asks (1) whether the suspect "may destroy or conceal evidence of the commission of a crime," § 29-215(2)(c)(ii)(C), and (2) whether an officer "needs assistance in making an arrest," § 29-215(2)(c)(ii). The statute fails to specify whether these questions are answered subjectively--what the requesting officer believed, or objectively--what a reasonable person under the circumstances could believe. But we need not decide this because both standards are met.
Tuesday, February 07, 2006
Laurie received a money judgment for her 39.95-percent interest in the entities, apart from the cash in the entities' checking and savings accounts. Jon was ordered to make yearly installment payments for the judgment, to continue until paid in full, with interest to accrue from April 10, 2002. Under the judgment, Laurie will receive undistributed entity income long after she has ceased paying taxes on entity income, and part of the judgment will include income for which Laurie has already paid taxes. In effect, because the judgment correlates with Laurie's interest in the entities, Laurie was awarded her share of the entities' income for which she paid taxes in 2001 and 2002; she was merely receiving it over an extended period of time. In a dissolution action, the court will consider all pertinent facts in reaching an award that is just and equitable. The ultimate test for determining an appropriate division of marital property is one of reasonableness. The division must, most of all, be reasonable. Halouska v. Halouska, 7 Neb. App. 730, 585 N.W.2d 490 (1998). Because the effect of the judgment was to award Laurie the entity income for which she paid taxes in 2001 and 2002, we conclude that the district court did not abuse its discretion in denying her request for a money judgment.For a summary of the first Camp appeal, Camp I, see Valuation Information.com: essentially, the court of appeals in the first ruling required actual business results based on income capitalization of the business in valuing the company in the divorce. The husband did not get a discount for buying out the wife's minority share. And he could not claim an additional share for prospective tax consequences, which the court found he failed to prove were very definite or certain
Saturday, February 04, 2006
Friday, February 03, 2006
The Nebraska Supreme Court affirmed. Strunk v. Chromy-Strunk, 270 Neb. 917, January 20, 2006. While noting that ordinarily conditional judgments are void, the court stated that this rule does not extend to equity or to equitable relief. "Rather, where it is necessary and equitable to do so, a court of equitable jurisdiction may enter a conditional judgment and such judgment will not be deemed void simply by virtue of its conditional nature."
The type of ballistics and firearms testimony that Bohaty presented in this case was not novel and is fairly routine in cases involving the use of firearms. Therefore, the Daubert analysis did not need to be as extensive as it might have been if the testimony involved more complicated, less routine methods of testing...In a case involving a more novel methodology or a methodology which had been more significantly called into question, a more extensive inquiry and more extensive analysis and reasoning would have been indicated. Considering the nature of the expert testimony involved in this case, we conclude that the court's inquiry, analysis, and ruling with respect to Mason's challenge were adequate and that the court did not abuse its discretion in admitting Bohaty's expert testimony
We conclude that the 2005 amendments to § 29-2264(5) are not applicable to this case. The orders setting aside McCray's convictions are final judgments which nullified the convictions and removed all civil disabilities which were not exempted from restoration by § 29-2264(5)(a) through (g) as it existed on the date of the orders. See State v. Spady, 264 Neb. 99, 645 N.W.2d 539 (2002). A legislative act will not be permitted, even if an intent to do so is clear, to operate retrospectively where it will have the effect of invalidating or impairing rights which have vested by virtue of the judgment of a court. Karrer v. Karrer, 190 Neb. 610, 211 N.W.2d 116 (1973). The 2003 orders vested McCray with a right to have the three set-aside convictions used only for those purposes enumerated in the statute at the time the orders were entered. Applying the amended version of § 29-2264(5) to this case would have the effect of modifying the judgments to add a new purpose for which the set-aside convictions could be used, thereby impairing McCray's rights.
Thursday, February 02, 2006
"Lowering the Bar: Lawyer Jokes and Legal Culture," includes hundreds of lawyer jokes and traces their evolution as an avenue for changing the public's attitudes about lawyers and the law. Galanter thinks the increasing popularity of lawyer jokes, which began in the 1980s, reflects anxiety about a highly legalized society in which the law has come to dominate our lives.