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| People v. Novak People v. Novak County Court, Sullivan County The People of the State New of New York, Plaintiff,v.Paul Novak, Defendant. Gary Greenwald, Esq. Greenwald Law Offices Attorney for Defendant. Hon. James R. Farrell Sullivan County DA Attorney for the People. Stephen F. Lungen, Esq. Special Prosecutor, Attorney for the People. William A. Hurst, Esq. Greenberg Traurig, LLP Attorney for Times-Herald Record. Hilary Lane, Esq. NBC Universal—Law Department Attorney for NBC Universal. Frank J. LaBuda, J. As the jury trial of People v. Novak progressed through its full fifth week of trial testimony, the People served the Middletown Times-Herald Record newspaper with a Subpoena Duces Tecum, seeking to compel testimony from Victor Whitman, a reporter for the Times-Herald Record (hereinafter referred to as the "Record"), and production of all unpublished audio and video recordings and reporter's notes created during an August 2, 2013, interview of Defendant, Paul Novak, by a Record reporter (hereinafter referred to as the "Reporter") while on assignment for the newspaper. The interview took place at the request of Defendant at the Sullivan County Jail. The Times-Herald Record has filed a motion to quash the subpoena. NBC Universal has joined in that motion and submitted supplemental papers. The Court heard oral argument on September 11, 2013. [1] The indictment before the jury charges the defendant, Paul Novak, for the murder of his estranged wife, arson in connection with the burning of the marital residence, burglary, grand larceny and insurance fraud. Jury selection for this trial began on August 5, 2013. At some point prior to jury selection, Defendant sought out and gave an interview to the Reporter for Record who has been reporting on this case for some time. [2] That interview occurred on August 2, 2013. The Times-Herald Record ran a front page story about the defendant and on the interview in the August 4, 2013, Sunday Edition of the paper. It also posted a "portion" of the video recorded interview on its website on August 4, 2013. The running of the story and posting of the interview detrimentally affected the jury pool, but the parties were eventually able to seat twelve jurors and eight alternate jurors. Opening statements and testimony commenced the following week, on August 12, 2013. The People argue that they need the recordings and notes of the Reporter for proper examination of defense witnesses and Defendant, should he take the stand and testify. They argue that the recordings are not privileged, because Defendant requested and arranged the interview, and portions have been published, thereby invalidating application of New York's "Shield Law." The Record and NBC Universal (hereinafter referred to as "NBC") argue that the First Amendment constitutional reporter's privilege applies to all information obtained by a journalist while gathering the news, regardless of whether the information is published or used to publish other news stories and regardless of whether the person requests the interview. The history of New York's Shield law dates back to 1970. Civil Rights Law §79-h(c). It has been amended in 1975 [3], 1981 [4], and 1990. [5] In its current version, it states in pertinent part, Qualified protection for nonconfidential news. Notwithstanding the provisions of any general or specific law to the contrary, no professional journalist... employed or otherwise associated with any newspaper... shall be adjudged in contempt by any court in connection with any civil or criminal proceeding... for refusing or failing to disclose any unpublished news obtained or prepared by a journalist... in the course of gathering or obtaining news... by a journalist... where such news was not obtained or received in confidence, unless the party seeking such news has made a clear and specific showing that the news: (I) is highly material and relevant; (ii) is critical or necessary to the maintenance of a party's claim, defense or proof of an issue material thereto; and (iii) is not obtainable from any alternate source. A court shall order disclosure only... [if] the above-described showing has been made and shall support such order with clear and specific findings made after a hearing. Case law has evolved over the decades in response to the legislative amendments. In the landmark case of Knight-Ridder Broadcasting, Inc. v Greenberg, 70 N.Y.2d 151 [1987], the Court of Appeals stated, "Consideration of all the circumstances surrounding the 1981 amendment to the Shield Law leads inexorably to the conclusion that the Legislature, by considering and rejecting an explicit provision addressing the issue facing the court today, did not intend the Shield Law to create an absolute privilege' against disclosure." Id., at 158. In essence, the Court held that where portions of a recording have been broadcast, any claim of confidentiality with respect to such recording is destroyed, invalidating application of the Shield Law; [6] the Shield Law only protected newsgathering materials that had been imparted to a reporter under a "cloak of confidentiality." Similarly, in People v. Korkala, 99 A.D.2d 161 [1st Dept. 1984], the First Department stated, ....[W]e are mindful of the fact that there is the qualified privilege accorded to the newsman which is founded directly upon the free speech, free press guarantees of the First Amendment and that compelling disclosure of information obtained by a reporter in news gathering can have a "'chilling effect' upon his functioning as a reporter and upon the flow of information to the general public" the court ruled that even though no confidential source issue was involved, that fact "is utterly irrelevant to the 'chilling effect' that the enforcement of these subpoenas would have on the flow of information to the press and to the public. The compelled production of a reporter's resource material is equally as invidious as the compelled disclosure of his confidential informants." Id., at 167. Although it seems clear that the unbroadcasted material is "relevant" to the subject of the prosecution and that these materials are not obtainable from any other source, it is by no means clear from this record that their production is "necessary" to the Korkala prosecution, even for impeachment or rebuttal purposes. Id., at 168. There is a long line of cases post Knight-Ridder, however, delineating a constitutional privilege, as well as the Shield Law protections afforded to journalists. In 1988, the Court of Appeals established that a reporter's constitutional privilege protects unpublished information obtained by a journalist in the course of gathering news. O'Neill v. Oakgrove Construction, Inc., 71 N.Y.2d 521 [1988]. The autonomy of the press would be jeopardized if resort to its resource materials, by litigants seeking to utilize newsgathering efforts of journalists for their private purposes, were routinely permitted. Moreover, because journalists typically gather information about accidents, crimes and other matters of special interest that often give rise to litigation, attempts to obtain evidence by subjecting the pres to discovery as a nonparty would be widespread if not restricted on a routine basis. The practical burdens on time and resources, as well as the consequent diversion of journalistic effort and disruption of newsgathering activity, would be particularly inimical to the vigor of a free press. Id., at 526-527. The Court of Appeals, in Oakgrove, discussed the tripartite test used to determine whether a trial court could compel production of confidential information from a journalist. The Court stated that the party seeking production of the items sought must show: (1) that the information is highly material, (2) the information or material is critical to the litigant's claim, and (3) that the information and/or materials are not available elsewhere. Id., at 527. The Court further explained that "if the material sought is pertinent merely to an ancillary issue in the litigation, not essential to the maintenance of the litigant's claim, or obtainable through an alternative source, disclosure may not be compelled." Id. Furthermore, the New York State Constitution, Article 1, §8 indicates this privilege extends to all information obtained or otherwise generated in the course of news gathering, whether the information is confidential or nonconfidential. Id., at 524. The qualified protection provided to journalists is a mandate—not only in the First Amendment to the united States Constitution, but also of the New York State constitution. The People have argued that the Oakgrove decision is limited to civil matters and not applicable here. That argument, however, is not supported by a fair reading of the Court's decision. To be sure, in some of the cases in which a constitutional reporter's privilege [sic] was recognized, the countervailing government interest was not as compelling as the grand jury investigation in Branzburg v. Hayes (408 U.S. 665). Nevertheless, the courts have held the three-pronged test applicable regardless of the criminal or civil context [ citations omitted ]. Id., at 528 n. 2. The tripartite test adopted in Oakgrove applies in criminal matters as well as civil matters. This does not mean a reporter's privilege will never yield to a criminal defendant's Sixth Amendment right under the United States Constitution, but to determine if it does, the court must engage in the tripartite test to make that determination. See, People v. Troiano, 127 Misc.2d 738 [County Ct. Suffolk Co. 1985]. The People's reliance on Korkala, supra, is likewise misplaced. The First Department in Korkala decided whether the then (1981) current version of the Shield law created an absolute privilege for nonconfidential, unpublished outtakes of a press interview of a criminal defendant. In that case, the prosecution, as in the instant case, claimed a need for the outtakes for use on cross-examination to impeach the defendant—to rebut a prospective defense through admissions the defendant made during the course of the interview. The court indicated that the "cloak of confidentiality" requirement was still required under the 1981 amendments to the Shield Law and therefore determined there was no statutory protection for the subpoenaed outtakes. Regardless, the Korkala court recognized and applied the qualified constitutional privilege, and the decision has since had no precedential force and effect because of Oakgrove and the 1990 amendments to the Shield Law. The People also rely on National Broadcasting Co., Inc. v. People, 238 A.D.2d 618 [2nd Dept. 1997], a post- Oakgrove case, in which a reporter interviewed a murder defendant in a jail setting. Unlike the case at bar, however, the defendant in National Broadcasting confessed to the crime during the interview, and that portion of the interview was broadcast on the news. Therefore, the Second Department held that the People satisfied the tripartite test by showing a factual predicate to support their claim that the subpoenaed materials might contain evidence by way of further admissions of guilt by the defendant. In the case at bar, the People have not met their burden under the tripartite test in Oakgrove or Civil Rights Law §79-h(c). The People have indicated they "need" the subject material, but have not shown the recording and notes are highly relevant and that the recording and notes are critical or necessary to the People's case or proof of a material issue. They have failed to meet the first two prongs of the test. In their own argument, the People indicated they need the material because the defendant may testify. Whether the defendant testifies is speculative, and therefore, whether the recording and notes are highly material or relevant is also speculative, especially considering that during the recorded interview Defendant consistently denied his involvement with the crime and stressed that he was innocent (unlike the defendant in National Broadcasting, supra). The People have not demonstrated how the recordings could be used to impeach the defendant, herein, nor have they met the second prong of the test, which requires that the material is critical or necessary to the maintenance of their claim—that Defendant murdered his wife. While this Court takes note of the numerous cases cited by the People used to support their argument for compelled disclosure, the Court finds the arguments too speculative, as all of the cases are factually inapposite to the case at bar, as Defendant Novak proclaimed his innocence. The case law on which the People rely is prior to the Oakgrove decision and the 1990 amendments to the Shield Law. The post-amendments and post- Oakgrove case on which the People rely are factually distinguishable from the case at bar, as Defendant Novak did not confess to this crime during the interview with the reporter from the Times-Herald Record newspaper. Thus, in the case at bar, the Novak "jail house" interview is protected constitutionally, statutorily and judicially. In holding so, this Court confirms the basic right of free press, which guarantees to all of us, our right to be free citizens in a society of law, without fear of improper or overreaching government intrusions. Based on the foregoing, it is therefore ORDERED that motion to quash the subpoena is granted. This shall constitute the Decision and Order of this Court.

法律

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256 U.S. 350 - American Bank Trust Co v. Federal Reserve Bank of Atlanta Ga Homethe United States Reports256 U.S. 256 US 350 American Bank Trust Co v. Federal Reserve Bank of Atlanta Ga 256 U.S. 350 AMERICAN BANK & TRUST CO. et al.v.FEDERAL RESERVE BANK OF ATLANTA, GA., et al. Argued April 13 and 14, 1921. Mr. Alexander W. Smith, of Atlanta, Ga., for appellants. Messrs. Hollins N. Randolph and Robert S. Parker, both of Atlanta, Ga., for appellees. [Argument of Counsel from pages 351-355 intentionally omitted] This is a bill in equity brought by country banks incorporated by the State of Georgia against the Federal Reserve Bank of Atlanta, incorporated under the laws of the United States, and its officers. It was brought in a State Court but removed to the District Court of the United States on the petition of the defendants. A motion to remand was made by the plaintiffs but was overruled. The allegations of the bill may be summed up in comparatively few words. The plaintiffs are not members of the Federal Reserve System and many of them have too small a capital to permit their joining it—a capital that could not be increased to the required amount in the thinly populated sections of the country where they operate. An important part of the income of these small institutions is a charge for the services rendered by them in paying checks drawn upon them at a distance and forwarded, generally by other banks, through the mail. The charge covers the expense incurred by the paying bank and a small profit. The banks in the Federal Reserve System are forbidden to make such charges to other banks in the System. Federal Reserve Act of December 23, 1913, c. 6, § 13; 38 Stat. 263; amended March 3, 1915, c. 93; 38 Stat. 958; September 7, 1916, c. 461; 39 Stat. 752; and June 21, 1917, c. 32, §§ 4, 5; 40 Stat. 234, 235 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 9796). It is alleged that in pursuance of a policy accepted by the Federal Reserve Board the defendant bank has determined to use its power to compel the plaintiffs and others in like situation to become members of the defendant, or at least to open a nonmember clearing account with defendant, and thereby under the defendant's requirements, to make it necessary for the plaintiffs to maintain a much larger reserve than in their present condition they need. This diminution of their lending power coupled with the loss of the profit caused by the above mentioned clearing of bank checks and drafts at par will drive some of the plaintiffs out of business and diminish the income of all. To accomplish the defendants' wish they intend to accumulate checks upon the country banks until they reach a large amount and then to cause them to be presented for payment over the counter or by other devices detailed to require payment in cash in such wise as to compel the plaintiffs to maintain so much cash in their vaults as to drive them out of business or force them, if able, to submit to the defendant's scheme. It is alleged that the proposed conduct will deprive the plaintiffs or their property without due process of law contrary to the Fifth Amendment of the Constitution and that it is ultra vires. The bill seeks an injunction against the defendants collecting checks except in the usual way. The District Court dismissed the bill for want of equity and its decree was affirmed by the Circuit Court of Appeals (November 19, 1920). The plaintiffs appealed, setting up want of jurisdiction in the District Court and error in the final decree. We agree with the Court below that he removal was proper. The principal dependant was incorporated under the laws of the United States and that has been established as a ground of jurisdiction since Osborn v. Bank of the United States, 9 Wheat. 738, 6 L. Ed. 204; Pacific Railroad Removal Cases, 115 U. S. 1, 5 Sup. Ct. 1113, 29 L. Ed. 319; Matter of Dunn, 212 U. S. 374, 29 Sup. Ct. 299, 53 L. Ed. 558. We shall say but a word in answer to the appellants' argument that a suit against such a corporation is not a suit arising under those laws within section 24 of the Judicial Code of March 3, 1911, c. 231, 36 Stat. 1087 (Comp. St. § 991). The contrary is established, and the accepted doctrine is intelligible at least since it is part of the plaintiffs' case that the defendant bank existed and exists as an entity capable of committing the wrong alleged and of being sued. These facts depend upon the laws of the United States. Bankers' Trust Co. v. Texas & Pacific Ry. Co., 241 U. S. 295, 306, 307, 36 Sup. Ct. 569, 60 L. Ed. 1010; Texas & Pacific Ry. Co. v. Cody, 166 U. S. 606, 17 Sup. Ct. 703, 41 L. Ed. 1132. See further Smith v. Kansas City Title & Trust Co., 255 U. S. 180, 41 Sup. Ct. 243, 65 L. Ed. 577, February 28, 1921. A more plausible objection is that by the Judicial Code, § 24, sixteenth, except as therein excepted national banking associations for the purposes of suits against them are to be deemed citizens of the States in which they are respectively located. But we agree with the Court below that the reasons for localizing ordinary commercial banks do not apply to the Federal Reserve Banks created after the Judicial Code was enacted and that the phrase 'national banking associations' does not reach forward and include them. That phrase is used to describe the ordinary commercial banks whereas the others are systematically called 'Federal Reserve Banks'. We see no sufficient ground for supposing that Congress meant to open the questions that the other construction would raise. On the merits we are of opinion that the Courts below went too far. The question at this stage is not what the plaintiffs may be able to prove, or what may be the reasonable interpretation of the defendants' acts, but whether the plaintiffs have shown a ground for relief if they can prove what they allege. We lay on one side as not necessary to our decision the question of the defendants' powers, and assuming that they act within them consider only whether the use that according to the bill they intend to make of them will infringe the plaintiffs' rights. The defendants say that the holder of a check has a right to present it to the bank upon which it was drawn for payment over the counter, and that however many checks he may hold he has the same right as to all of them and may present them all at once, whatever his motive or intent. They ask whether a mortgagee would be prevented from foreclosing because he acted from disinterested malevolence and not from a desire to get his money. But the word 'right' is one of the most deceptive of pitfalls; it is so easy to slip from a qualified meaning in the premise to an unqualified one in the conclusion. Most rights are qualified. A man has at least as absolute a right to give his own money as he has to demand money from a party that has made no promise to him; yet if he gives it to induce another to steal or murder the purpose of the act makes it a crime. A bank that receives deposits to be drawn upon by check of course authorizes its depositors to draw checks against their accounts and holders of such checks to present them for payment. When we think of the ordinary case the right of the holder is so unimpeded that it seems to us absolute. But looked at from either side it cannot be so. The interests of business also are recognized as rights, protected against injury to a greater or less extent, and in case of conflict between the claims of business on the one side and of third persons on the other lines have to be drawn that limit both. A man has a right to give advice but advice given for the sole purpose of injuring another's business and effective on a large scale, might create a cause of action. Banks as we know them could not exist if they could not rely upon averages and lend a large part of the money that they receive from their depositors on the assumption that not more than a certain fraction of it will be demanded on any one day. If without a word of falsehood but acting from what we have called disinterested malevolence a man by persuasion should organize and carry into effect a run upon a bank and ruin it, we cannot doubt that an action would lie. A similar result even if less complete in its effect is to be expected from the course that the defendants are alleged to intend, and to determine whether they are authorized to follow that course it is not enough to refer to the general right of a holder of checks to present them but it is necessary to consider whether the collection of checks and presenting them in a body for the purpose of breaking down the petitioner's business as now conducted is justified by the ulterior purpose in view. If this were a case of competition in private business it would be hard to admit the justification of self interest considering the now current opinion as to public policy expressed in statutes and decisions. But this is not a private business. The policy of the Federal Reserve Banks is governed by the policy of the United States with regard to them and to these relatively feeble competitors. We do not need aid from the debates upon the statute under which the Reserve Banks exist to assume that the United States did not intend by that statute to sanction this sort of warfare upon legitimate creations of the States. Decree reversed.

法律

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Jury Statement Competition Guidelines Paula Grant-Berry Paula Grant Berry serves on the LMDC Families Advisory Council and was a Memorial Program Drafting Committee member. Her husband, David Berry, was killed in the South Tower of the World Trade Center. Ms. Grant Berry graduated from Harvard University in 1979 and received her MBA from the Columbia University Business School in 1988. She has held several executive positions in publishing and marketing including Doubleday, the Economist, Newsweek, Gruner & Jahr and Scholastic. Ms. Grant Berry is a resident of Brooklyn where she lives with her three children. Susan K. Freedman Susan Freedman is the President of the Public Art Fund. She currently serves as a representative on the Board of the Museum of Modern Art, as well as on the Boards of the Municipal Art Society, the Eldridge Street Project, WNYC Radio, and as Secretary of the Board for the City Parks Foundation. Ms. Freedman is the recipient of the 1999 Associates of the Art Commission Annual Award, and was selected as one of four finalists for the North American MontBlanc de la Culture Award in 1994. Prior to her current position, Ms. Freedman served as the Assistant to Mayor Edward I. Koch and Director of Special Projects and Events for the Arts Commission of the City of New York. Vartan Gregorian, Ph.D. Dr. Vartan Gregorian is the President of the Carnegie Corporation of New York. Prior to his current position, he served for nine years as the sixteenth president of Brown University. Dr. Gregorian is the founding dean of the Faculty of Arts and Sciences at the University of Pennsylvania (1974-1978), and served as the twenty-third provost of the University until 1981. For eight years (1981-1989), he served as the President of the New York Public Library. Mr. Gregorian is the author of Emergence of Modern Afghanistan, 1880-1946. His awards include the Ellis Island Medal of Honor, the American Academy of the Institute of Arts and Letters' Gold Medal for Service to the Arts and the National Humanities Medal awarded by President William Jefferson Clinton. Patricia Harris Patricia Harris is the Deputy Mayor for Administration for the City of New York. Prior to her appointment, Harris managed Bloomberg LP's Corporate Communications Department, overseeing its Philanthropy, Public Relations, and Governmental Affairs divisions. Prior to her employment at Bloomberg, she was Vice President for Public Relations at Serino Coyne Advertising. She served for 12 years in the administration of Mayor Edward I. Koch as Executive Director of the Art Commission -- the agency that reviews all public art, architecture and landscape architecture on city property-- and before that, as Assistant to the Mayor for Federal Affairs. Maya Lin Maya Lin is known for her site-specific art and architectural projects. For over fifteen years, Ms. Lin has run her own studio in New York City, creating installations and buildings throughout the country. Current architectural projects include an 8,000 square foot chapel for the Children's Defense Fund in Clinton, TN, and a 20,000 square foot bakery for the Greyston Foundation in Yonkers, NY. She is working on art installations for the Lewis and Clark bicentennial in Washington State and the Fine Arts Plaza at the University of California at Irvine. Ms. Lin gained international recognition for creating the Vietnam Veterans' Memorial in Washington, D.C. and the Civil Rights memorial in Montgomery, AL. She is a board member of the Yale Corporation and the Natural Resources Defense Council. She is represented by Gagosian Gallery in New York City. Michael McKeon Michael McKeon is a Managing Director of Mercury Public Affairs. Prior to joining Mercury, Mr. McKeon served as Governor Pataki's Director of Communications, and as the Governor's chief spokesman. He was responsible for overseeing the State's crisis communications, during and after the September 11th terrorist attacks on the World Trade Center. As the Governor's chief liaison on September 11th issues to City Hall and family groups, McKeon worked closely with Mayor Michael Bloomberg and his staff, along with White House senior staff, on the development and production of the ceremonies marking the first anniversary of the September 11th attacks. Prior to joining the Pataki administration in May 1995, McKeon worked for more than 10 years as a reporter for three New York newspapers, winning several awards for local and political reporting. Julie Menin Julie Menin is the President and Founder of Wall Street Rising, a not-for-profit organization founded in October 2001. The organization's mission is to help restore vibrancy and vitality in Lower Manhattan as a 24/7 mixed-use community and destination. Ms. Menin was formerly the Senior Regulatory Attorney at Colgate-Palmolive. Ms. Menin is a resident of Lower Manhattan and owns Vine Restaurant, located in the Financial District. Some of Wall Street Rising's programs and services have included Art Downtown, Do It Downtown! Discount Card Program, a Resident and Retail Attraction Program and a Downtown Information Center. Enrique Norten Enrique Norten founded Taller de Enrique Norten Arquictectos S.C. (TEN Arquitectos) in 1985 with partner Bernardo Gomez-Pimienta. He is the recipient of many architectural awards, including the Honorary Fellowship from the American Institute of Architects, and the first "Mies van der Rohe" Award for Latin America. He has taught at, among other institutions, the Pratt Institute, Rice University, Columbia and Harvard. In July, 2002 he received a commission, his first in the United States, from the Brooklyn Public Library, to design its Visual and Performing Arts Library. Mr. Norten was founding member of the editorial board of the magazine Arquitectura. He teaches at the University of Pennsylvania, where he holds the Miller Chair of Architecture. Mr. Norten has extensive jury experience. Martin Puryear Martin Puryear is a world renowned artist who studied painting at Catholic University in Washington, D.C., and then served as a Peace Corps teacher in Sierra Leone from 1964 to 1966. He went on to study at the Swedish Royal Academy of Art in Stockholm and later received his Masters of Fine Arts from Yale University. In 1989 Mr. Puryear received the MacArthur Foundation Grant and was awarded the Grand Prize at the Sao Paolo Biennale, where he represented the United States. At the invitation of the French Ministry of Culture, he then worked at the Calder Atelier in Sache, France in 1992. Mr. Puryear recently completed several large scale projects including a stainless steel sculpture for the J. Paul Getty Museum in Los Angeles and a commissioned installation for the Festival d'Automne in Paris. His work is represented in private collections in the United States, Europe and Japan. Nancy Rosen Nancy Rosen has been working in the field of public art for the past three decades, organizing temporary exhibitions of outdoor sculpture and, in 1980, establishing her office, Nancy Rosen Incorporated, to assist public agencies, not-for-profit institutions and other clients to plan and implement public art programs and fine art collections. Her assignments have included organizing the Art-for-Public-Spaces program for the U.S. Holocaust Memorial Museum in Washington, D.C. and the first phase of the public art program for Battery Park City. She has advised the Institute for Advanced Study in Princeton and serves as the advisor to the Committee for Art in Public Places at Middlebury College. She has been a consultant and panelist for the New York State Council on the Arts and the City of New York, and has chaired the Art in Public Places grants panel for the National Endowment for the Arts. At the invitation of the U.S. General Services Administration, Ms. Rosen participated in that agency's Art-in-Architecture Workshop. She has been serving on the Art Commission of the City of New York since 2002. Lowery Stokes Sims, Ph.D. Lowery Stokes Sims is the Executive Director of the Studio Museum in Harlem. As Director of the museum, she has overseen major expansion and renovation projects of their facility and collection. Prior to her appointment in January 2000, she was Curator of Modern Art at the Metropolitan Museum of Art, on staff since 1972. Dr. Sims received her B.A. in art history from Queens College of the City University of New York, her M.A. in art history from John Hopkins University and her M. Phil. and Ph.D in art history from the Graduate School and University Center of the City University of New York. Dr. Sims has served nationally as a juror and guest curator at institutions including the Queens Museum, the Pratt Institute, the Carribbean Cultural Center (New York), Cooper Union, the New Museum of Contemporary Art, and the California Museum of Afro-American History and Culture. Michael Van Valkenburgh Michael Van Valkenburgh is the founder and principal of Michael Van Valkenburgh Architects in Manhattan and Cambridge and he currently resides in New York City's West Village. The work of Michael Van Valkenburgh Associates has won numerous national design awards from the American Society of Landscape Architects and a Progressive Architecture Award in 1997 for Allegheny Riverfront Park. Michael was named the Charles Eliot Professor in Practice of Landscape Architecture at the Harvard Graduate School of Design, where he teaches a design studio once a year. He also served as chairman of the department between 1991 and 1996. Mr. Van Valkenburgh has extensive jury experience. James E. Young, Ph.D. James Young is the Professor & Chair of the Department of Judaic & Near Eastern Studies at the University of Massachusetts, Amherst. He is also the author of At Memory's Edge: After-images of the Holocaust in Contemporary Art and Architecture; The Texture of Memory, which won the National Jewish Book Award in 1994; and Writing and Rewriting the Holocaust, which won a Choice Outstanding Book Award for 1988. Professor Young was also guest curator of an exhibition at the Jewish Museum, The Art of Memory: Holocaust Memorials in History. Professor Young was appointed by the Berlin Senate to the five-member commission for Germany's national "Memorial to Europe's Murdered Jews," now under construction in Berlin. Mr. Young is a resident of Massachusetts and has extensive jury experience. In recognition of his accomplishments and devotion to New York City, David Rockefeller will serve as an honorary member on the jury. As honorary member, Mr. Rockefeller will be available for consultation on the guiding vision for the World Trade Center and to provide historical perspective to the evolution of downtown Manhattan. David Rockefeller Mr. Rockefeller is a distinguished philanthropist, business leader and patron of the arts. He is Chairman Emeritus of the Museum of Modern Art in New York City. Mr. Rockefeller served as an officer of the Chase Manhattan Bank from 1946 to 1981 and as Chairman and Chief Executive Officer from 1969 until 1981. He led Chase Manhattan Bank in building Chase Plaza and becoming a principal anchor downtown during the fiscal crisis in the 1970s. Since then, he has served as Chairman of the bank's International Advisory Committee. Mr. Rockefeller has a long history of vigorous and successful advocacy on behalf of Lower Manhattan, including the chairmanship of the Downtown-Lower Manhattan Association. Mr. Rockefeller was the visionary and leading force behind the development of the original World Trade Center site. He was the founder of the NYC Partnership, now the Partnership for NYC, which continues to serve as the premier voice for business in New York. Mr. Rockefeller is also involved in numerous other business, cultural and educational organizations as well as foundation boards and charitable activities. Sitemap | Privacy Policy | Terms of Use | Acknowledgements | LMDC Website

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Legal Articles Criminal Defense HomeLegal Help CenterCriminal Defense Pennsylvania Criminal Defense Tweet If you have committed a crime in Pennsylvania, are suspected of committing a crime in Pennsylvania, or have been accused of committing a crime in Pennsylvania, the government may prosecute you. If found guilty, you could face punishment ranging from the relatively minor (a small fine, for example) to the very severe (such as prison time). The Pennsylvania state government, as well as town and city governments, is responsible for enforcing Pennsylvania criminal law. The federal government enforces federal criminal law. According to Wikipedia: Criminal law involves the prosecution of wrongful acts by the state which are considered to be so serious that they are a breach of the sovereign's peace….The vast majority of the crimes committed in the United States are prosecuted and punished at the state level. Federal criminal law focuses on areas specifically relevant to the federal government like evading payment of federal income tax, mail theft, or physical attacks on federal officials, as well as interstate crimes like drug trafficking and wire fraud. Types of Crimes in Pennsylvania Crimes are generally categorized as felonies and misdemeanors. A felony is a more serious crime that is punishable by more than one year in prison. A misdemeanor is punishable by one year or less in prison, or no prison time at all. Certain crimes may be both felonies and misdemeanors depending on the severity of the crime and whether you have previously been found guilty of the same crime. Examples of Pennsylvania felonies may include: Aggravated assault and battery in Pennsylvania Arson in Pennsylvania Burglary in Pennsylvania Robbery in Pennsylvania Murder in Pennsylvania Kidnapping in Pennsylvania Examples of Pennsylvania misdemeanors may include: Petty theft in Pennsylvania Public intoxication in Pennsylvania Possession of small amounts of drugs in Pennsylvania Reckless driving in Pennsylvania If you have been charged with a crime in Pennsylvania, a local Pennsylvania criminal defense attorney can explain the potential consequences of the crime and help defend you in court. The Pennsylvania Criminal Process The Pennsylvania criminal law process involves a number of stages. These stages may vary depending on the jurisdiction and severity of the crime. In general, the criminal justice process involves the following stages: Pennsylvania state law enforcement officials or local law enforcement investigate the crime A Pennsylvania judge may issue a search warrant that allows investigators to search for evidence at a specific location Law enforcement officials will interrogate witnesses and potential suspects to gain more information If the officers have probable cause to believe a crime has been committed, they will arrest the person suspected of committing the crime Law enforcement officials will decide to file criminal charges against the person suspected of committing the crime The charges will be read to the person in court during an arraignment, where the person accused of the crime is asked to plead guilty or not guilty The person accused of the crime (also known as the defendant) may be released from custody or may be kept in jail while awaiting trial Before trial, the defendant's Pennsylvania criminal defense attorney may attempt to negotiate a plea bargain, or agreement for the defendant to plead guilty to lesser charges If a plea agreement cannot be reached, the defendant's case will be resolved in a trial, where evidence is presented and either a judge or jury decides whether the defendant is guilty of the crime After the judge or jury considers all of the evidence, a verdict is reached If the defendant is found guilty, he or she may choose to appeal the decision and ask a higher Pennsylvania court to overturn it because of mistakes made during the criminal justice process If you are found guilty of a crime in Pennsylvania, the punishment may vary depending on the severity of the crime, your intentions when you committed the crime, and your past criminal record. A Pennsylvania criminal defense lawyer can explain the consequences to you in more detail. Additional Pennsylvania Criminal Law Resources The U.S. Department of Justice's information on federal criminal law Expungement of criminal records in Pennsylvania Information about the U.S. Courts Information about Pennsylvania Courts Lawyers.com information about classification of crimes The Pennsylvania State Police The Pennsylvania Attorney General's Office More About This Topic Questions to Ask Before Hiring a Criminal Lawyer Penalty for Class B Felony What Do Criminal Defense Attorneys Do Types of Criminal Defenses What Are Mandatory Minimum Sentencing Laws Copyright © 2016 Internet Brands. All rights reserved. ® | Disclaimer | Terms and conditions | Privacy | Cookie Policy | Are you an attorney? | Site Map

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New anti-spam legislation is 'a mess' says internet lawyer Internet, privacy lawyer David Fraser calls legislation 'onerous, complicated and cumbersome' By Yvonne Colbert, CBC News Posted: Jun 25, 2014 10:26 AM AT Last Updated: Jun 25, 2014 10:26 AM AT Canada's tough new anti-spam legislation kicks in on July 1, meaning businesses that send out unwanted emails and even social media messages could face some massive fines. (Shutterstock) Related Stories New anti-spam legislation worrying business owners, community groups New anti-spam law concerns small business operators Small businesses not ready for anti-spam law, CFIB says Starting July 1, businesses and some other organizations are going to see big changes with the implementation of federal anti-spam legislation. Beginning Canada Day, businesses that send texts, emails, instant messages, Facebook messages, or any other type of electronic commercial message, will have to meet a number of very specific requirements. Every electronic message will have to include the full name of the sender, their mailing address, website, phone number and the ability to unsubscribe — which the company must act on within 10 days. "Just about everyone that communicates with any of their customers and members needs to think about what sort of impact this legislation might have on them," said internet and privacy lawyer David Fraser. He said the legislation, written 10 years ago, is designed to eliminate nuisance emails. But Fraser calls it "a mess" saying it's "onerous, complicated and cumbersome," and doesn't address the realities of today. Legislation too broad He said many businesses don't think of themselves as being spammers and said the legislation is too broad. "Last weekend my son and a friend decided to have a lemonade stand and if this had taken place after July 1 and they had emailed around to the neighbours to let them know about this lemonade stand, they would have been regulated under this legislation. They would have been considered to be a spammer even if they had done that on behalf of a charity," said Fraser. He said he has spoken to business owners who think they're compliant when they're not. He said the legislation puts too much of a burden on businesses and is costing his clients money for legal fees, not to mention teams of employees focused on ensuring businesses are compliant. Alyssa Buchanan, manager at the Halifax candy shop Sweet Janes, said her day-to-day business hasn't really been affected by the changes. Fraser said the impact on business is completely disproportionate to the benefits for consumers and lumps fraudulent inheritance scams with discounts from your favourite store. The rules vary, depending on the type of organization. Charities and non-profits also need to be aware of the potential impact on them. Hefty fines for those who don't comply This legislation, designed to reduce emails, is actually causing an increase in them, as companies reach out to their customers, seeking their consent to send them emails after the July 1 deadline. Those who don't comply with the legislation risk hefty fines of up to $1 million for individuals and up to $10 million for businesses. Fraser said, generally, it will be enforced by the Canadian Radio-television and Telecommunications Commission and he gets the sense that "they're very excited at the prospect of strapping on a badge and becoming law enforcement officers. "I haven't gotten a sense that they're taking a wait and see approach or that they're going to take a particular remedial approach, in terms of helping businesses become compliant if they're found to have messed up. I have a feeling they're going to be pretty aggressive out of the gate, looking for some quick wins and looking for some companies to make examples out of." Report Typo or Error

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In the Courts - Jul 31, 2002 01:25 AM, Wednesday, July 31 2002 | 570 views | 0 | 4 | | Unruly passengerAn 18-year-old Russellville male was arrested Tuesday morning and cited for public intoxication, disorderly conduct, obstructing governmental operations and terroristic threatening during a traffic stop at Highway 7 North and Aspen Lane.According to a police report, Officer Kevin Burnham saw a white GMC Sierra pickup truck travel left of center several times while driving on Highway 7. Someone in the vehicle was yelling out the window as the officer passed by them, although there were no other vehicles or pedestrians around.The report indicated the center passenger kept interrupting and used profanity when the officer attempted to talk to the driver, and continued to use loud, tumultuous behavior and became belligerent when he stated he owned the truck. The subject gave conflicting information, stating "Maybe someone spilled something in my truck," then changed his statement and said, "I've only had one beer, that's why I'm not driving."Burnham called for other officers due to the subject's continued profanity and aggressive behavior. The male could not complete field sobriety tests due to his inability to maintain his balance. A portable breath test result was .24 percent, and the subject had to be physically placed in the patrol vehicle for transport to the Pope County Detention Center.The report stated the subject was placed in an isolation cell by at least two correctional officers, and continued to cause problems and was out of control until at least 6 a.m. Burnham cited the individual with three counts of terroristic threatening due to his behavior.Marijuana arrestAn 18-year-old Russellville male was arrested and cited for possession of a controlled substance (marijuana), possession of an instrument of crime and driving left of center Monday at Fourth and Arkansas.According to a police report, Officer Diana Turner conducted a traffic stop on a black Chevrolet Silverado pickup truck. Other passengers in the truck were listed in the report as an 18-year-old male, given address of 416 Skyline Vista Lane, and 18-year-old male, 407 Dove Place.After the driver gave consent to search the vehicle, Turner discovered two packages of rolling papers in an open storage compartment in the driver's side door. A green leafy substance believed to be marijuana was found in a brown ashtray under the driver's seat. A marble smoking pipe was discovered under the passenger's side seat.The driver stated, "It is my truck, so everything in it belongs to me." He was transported to the detention center.ReminderThe Russellville Police Department and Pope County 9-1-1 Emergency Communications remind residents about what agency and phone numbers to call when they need to talk to an officer.Persons who need an officer sent to them are asked to call the non-emergency phone number, 968-0911. Emergency calls are to be made to 9-1-1.If there is a question concerning "time payments," Russellville District Court will need to be contacted at 968-1393. Persons who cannot make their payments in full are asked to have the court date continued or if a balance sheet is needed, district court staff members need to be notified at 968-1393.The Russellville Police Department will need to be contacted if persons are checking on the status of a city report. The number is 968-3232.

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Case Western Reserve law dean takes shots from writer in American Lawyer LinkedIn Google+ “Doubling down on a losing hand is rarely a good move, yet that is precisely what Case Western Reserve Law School dean Lawrence E. Mitchell is doing.”That's the tough-minded first sentence of this piece, on AmericanLawyer.com, from Steven J. Harper, an adjunct professor at Northwestern University and author of the forthcoming book “The Lawyer Bubble: A Profession in Crisis.”Mr. Harper writes that Dean Mitchell “has made himself the poster child for deans in denial — the law school story of 2012” with a New York Times op-ed piece last November and a Jan. 4 Bloomberg Law (video) interview. (My Nov. 29 blog post about Dean Mitchell's original defense of law schools is here.Last June, Mr. Harper notes, the American Bar Association released data showing that nine months after graduation, only about 50% of the law school class of 2011 had found full-time jobs that required a law degree.In text accompanying the Bloomberg Law interview, the news service says the U.S. Bureau of Labor Statistics projects there will be 74,000 new lawyer jobs this decade — but American law schools will produce more than 400,000 graduates.Despite those numbers, "it's not clear to me there's an oversupply problem at all," Dean Mitchell says in the interview. With so many legal needs of the poor going unmet, "finding different paths for people who truly want to be lawyers opens up all sorts of possibilities" for law graduates to find jobs, he tells Bloomberg Law.“As support, he cited low-income people who go without legal services,” Mr. Harper writes. Bloomberg Law interviewer Lee Pacchia then “asked him how debt-ridden graduates paying Case more than $40,000 in annual tuition could take on such work full-time.”“His response was less than persuasive,” Mr. Harper writes. “It's a mistake, Mitchell said, to 'measure the worth of higher education by the dollar return on the investment.' Perhaps he has a point, but it's not really an answer to Pacchia's question.”The piece goes on at length with sections labeled “Cost Spiral,” “How About Decent Jobs?” and “Optimism Untethered to Reality,” so that should give you a sense of the tone of Mr. Harper's argument. If you enjoy academic food fights, by all means read this.This and that That'll pay for some free agents: The Akron Beacon Journal reports that FirstEnergy Corp.'s stadium right naming deal with the Cleveland Browns is worth $6 million a year, and it runs for 17 years.Do that math and that's $102 million — on par with naming rights deals in Indianapolis (20 years, $122 million) and Philadelphia (21 years, $139 million).Up all night: Forest City Enterprises is proposing a “mixed-use innovation center” in San Francisco with up to 1,000 housing units, 2.2 million square feet of office space, and spaces to accommodate 275,000 square feet of artisans, retailers, designers, and boutique manufacturers.The project at San Francisco's Pier 70 was unveiled to the public this week at a Central Waterfront Advisory Group meeting, the San Francisco Business Times reports.In an interview with the newspaper, a Forest City senior vice president, Alexa Arena, says the developer is aiming for a lively, around-the-clock environment.“We think to deliver an office campus of the future, it includes residential,” Ms. Arena says. “The two are intimately connected. If you don't have a 24-hour living place, you are not responding to the talent and the kind of talent companies need to house.”Ticket to savings: Cedar Point in Sandusky is one of the amusement parks mentioned in this Wall Street Journal story about the perks offered to guests who stay at the parks' hotels.“For travelers planning a theme-park vacation, it is increasingly valuable — although not necessarily less expensive — to stay at one of the resort's hotels,” The Journal says. “That is, a family may pay more to stay at a theme park hotel, but receive high-value, hard-to-get perks as part of a lodging package, which the major parks are increasingly offering to entice more guests to sleep inside their gates.”Park operators including Disney and Universal “are emphasizing exclusive benefits such as early park access and line-hopping privileges, as well as more room discounts and package deals,” according to the story.Guests who stay in on-property hotels at Cedar Point are allowed early access to some popular rides, including the new GateKeeper roller coaster, the story notes. (The Journal doesn't say it but I will — GateKeeper looks like it will be incredibly fun to ride.)Park spokesman Bryan Edwards tells the newspaper that guests also are eligible for the least expensive-available ticket price of $34 rather than $55. This week, the story notes, “Cedar Point introduced a payment plan option for guests, letting them spread out their lodging bill over four payments.” You also can follow me on Twitter for more news about business and Northeast Ohio.

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Arthur Shawcross The Crimes In November 1990, Shawcross went on trial for the ten murders that had occurred in Monroe County, which included all victims except for Elizabeth Gibson, who had been killed in neighbouring Wayne County. The trial was a national media event, extensively televised and widely viewed. Shawcross’ defence team tried to build a case based on an insanity plea, citing various mitigating factors, such as his upbringing, post-traumatic stress as a result of military service, a cyst on the brain, and a rare genetic defect: an extra Y chromosome in his genes that inclines those with this condition to violence. The prosecution were quick to dispute the claims about his childhood and military service, casting doubts on Shawcross’ testimony. The physiological evidence about brain science and genetic factors was, at best, spurious and beyond the understanding of the jury. It was also hindered by poor presentation on the part of the expert witnesses called to testify. Shawcross was found sane and guilty of 10 instances of second-degree murder. The judge sentenced him to 25 years for each count, a total of 250 years imprisonment. A few months later, Shawcross was taken to Wayne County to be tried for Elizabeth Gibson's murder. Rather than claim insanity this time, he pleaded guilty and received a further life sentence. Shawcross was sent to serve his time at the Sullivan Correctional Facility in New York State. Visit our other channels

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Nevada State Legislature Legalizes Online Poker Nevada beats New Jersey to the punch Nevada Governor Brian Sandoval signed a bill into law this week that legalizes online poker in the absence of federal action. The Nevada Legislature fast-tracked the online gaming bill declaring it an emergency measure taking the bill to the Governor for signature on Thursday. Both houses of the legislature voted unanimously to pass Assembly Bill 114, and the bill is expected to expand the customer base for Nevada casinos and should bring in a huge influx of cash. Nevada Governor Brian Sandoval signed Bill 114 after is was fast tracked through the state Legislature. [Image Source: Watchdog] “We’re going to do it now,” said Assembly Majority Leader William Horne, D-Las Vegas. “We’re going to beat New Jersey.” Nevada is in a competition with New Jersey to become the country's online gaming hub. New Jersey Governor Chris Christie vetoed a bill passed by his state legislature previously, but is expected to sign an amended bill next week. “This is good-natured competition,” said Pete Ernaut, lobbyist for the Nevada Resort Association, in reference to New Jersey. “If we get there first, fantastic. If we get there within 24 to 48 hours, it’s not a big deal.” New Jersey Governor Chris Christie is rushing to put his state on equal footing with Nevada in online gambling. [Image Source: Getty Images] One reason the bill is able to move forward so quickly was due to a compromise allowing the Nevada Gaming Commission to double the $500,000 online poker license fee to $1 million in certain circumstances. Another caveat in the bill bans companies that illegally participated in online gaming between 2006 and 2011 for a period of five years. Source: Las Vegas Sun "A politician stumbles over himself... Then they pick it out. They edit it. He runs the clip, and then he makes a funny face, and the whole audience has a Pavlovian response." -- Joe Scarborough on John Stewart over Jim Cramer

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DRF.Com › Magna to push back financing hearing 03/31/2009 11:00PMMagna to push back financing hearingBy Matt Hegarty EmailMagna Entertainment Corp. plans to ask a Delaware bankruptcy judge to put off by several weeks the consideration of several motions that are currently scheduled for a hearing on Friday, including the approval of a plan to auction off its properties, according to court filings and an official involved in the bankruptcy. If the company's request is approved, a hearing to consider the motions, which have drawn objections from a handful of creditors and related parties, would likely be held in two to three weeks, according to the official, who did not wish to be identified because he is not authorized to speak on the issue. The official said that Magna wished to delay the hearing on the motions under consideration because several parties involved in the bankruptcy reorganization needed more time to formulate responses to the objections. Hearings to consider motions in bankruptcy court are commonly delayed for a variety of reasons. When Magna filed for bankruptcy on March 5, the company said that it had reached an agreement with its parent company, MI Developments, for $62.5 million in financing to help with its reorganization. In addition, the company asked the court to approve two separate plans to auction off its properties. One of the plans included an agreement whereby MI Developments would submit a $195 million stalking-horse bid for a bundle of Magna properties, including Gulfstream Park, Golden Gate Fields, Lone Star Park, AmTote, and XpressBet. In a court filing on Wednesday listing the motions to be discussed on Friday, Magna said it expected to reach an agreement with the court to discuss amended motions at "a hearing date to be determined" and said that the company would file an amended agenda when those agreements were reached. Objections to the motions were due on March 27. A number of entities, including Churchill Downs Inc., the state of Maryland, and Greenlight Capital, a large minority shareholder of MI Developments, filed objections. In particular, Greenlight filed a motion contending that the auction rules sought by Magna would have a "chilling" effect on bidding and effectively guarantee that MI Developments would buy the properties. The bankruptcy court has already approved $13.4 million of the $62 million being sought by Magna from MI Developments, and Magna was seeking the remainder of the financing under the motion scheduled to be heard on Friday. Greenlight is among a number of parties to have objected to the financing agreement as well. Print

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Judge tosses case seeking rights for orcas Wed Feb 8th, 2012 9:06pmNews By Julie Watson Associated Press SAN DIEGO — An effort to free whales from SeaWorld by claiming they were enslaved made a splash in the news but flopped in court Wednesday. A federal judge in San Diego dismissed an unprecedented lawsuit seeking to grant constitutional protection against slavery to a group of orcas that perform at SeaWorld parks, saying the 13th amendment applies only to humans. U.S. District Judge Jeffrey Miller stopped the case from proceeding two days after he became the first judge in U.S. history to listen to arguments in court over the possibility of granting constitutional rights for members of an animal species. “As ‘slavery’ and ‘involuntary servitude’ are uniquely human activities, as those terms have been historically and contemporaneously applied, there is simply no basis to construe the Thirteenth Amendment as applying to non-humans,” Miller wrote in his ruling. People for the Ethical Treatment of Animals filed the lawsuit in October and named five whales as plaintiffs. PETA says the wild-captured orcas are enslaved by SeaWorld because they are held in concrete tanks against their will and forced to perform in shows at its parks in San Diego and Orlando, Fla. SeaWorld called the lawsuit baseless and a waste of the court’s time and money. Legal experts say it opened an interesting debate about the expansion of animal rights. PETA attorney Jeffrey Kerr says his organization does not plan to give up the fight to protect the orcas, but he did not specify the next action. PETA is known for its provocative anti-fur and pro-vegan campaigns to engage the court of public opinion. “Today’s decision does not change the fact that the orcas who once lived naturally wild and free, are today kept as slaves by SeaWorld,” Kerr said in a statement. “PETA will regroup and determine how to continue to work for the legal protection they deserve.” SeaWorld denies any mistreatment of the animals and says its parks have raised awareness that has helped conservation efforts. It also says it has rescued orcas injured in the wild.

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Do you want to advertise with us? Brandon J. Williams Two South Biscayne Boulevard 2 S Biscayne Blvd Ste 1900 http://www.foley.com Overview Brandon J. Williams is an associate and business immigration lawyer with Foley & Lardner LLP. He has experience with business-related immigration issues, audits of employers' compliance with immigration and labor regulations, employment-based immigrant visa petitions, investment visas (both nonimmigrant and EB-5 immigrant visa petitions), labor certifications, and family-based immigrant visa petitions. He is a member of the Immigration, Nationality & Consular Law and Government & Public Policy Practices. During law school, Mr. Williams served as an immigration clerk at Foley. Mr. Williams also gained extensive experience before entering law school as an immigration paralegal. Mr. Williams has experience assisting attorneys with matters in Immigration Court, before the Board of Immigration Appeals, and before the Federal District and Circuit Court of Appeals. Beyond his legal experience, Mr. Williams has experience in the medical and biotechnology sector. During his undergraduate studies, he was a researcher with the McGowan Institute for Regenerative Medicine where he worked on projects ranging from the testing of new medical devices to performing theoretical and experimental research related to the development of next generation artificial organs including artificial blood. Good to know 1) Immigration and 2) Nationality & Consular Law the University of Pittsburgh (B.S. in 2006) State Bar Of Florida

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Free Helplines Tax Credit Legal Feedback Companies & Sectors Reliance Group seeks 16 more defence manufacturing licences Going overdrive in the defence manufacturing space, Anil Ambani-led Reliance Group has applied for as many as 16 more licences in areas ranging from missiles to radar, barely two weeks after it got conditional nod for 12 requests to make aircraft, choppers and more. "We have applied for these industrial licenses to manufacture defence equipment and hardware such as heavy weapons, ammunition, explosives, missiles, small arms, electronic warfare, armoured and amphibious vehicles, radars and unmanned aystems," an informed source said. "The new facilities to come up in Gujrat and Maharashtra in a phased manner," the source added, requesting anonymity, since he was not authorised to speak to the media. "Once these 28 licenses are in place, we will create tens-of-thousands of thousands of highly skilled jobs." Late last month, the government had approved conditionally 12 licences for the Reliance Group in this this area. These were part of approvals for 32 similar applications from other stakeholders, as per the list put up by the Department of Industrial Policy and Promotion. The projects are to be executed by companies floated by Reliance Defence that is a wholly-owned subsidiary of Reliance Infrastructure. These will cover the entire spectrum of land, Naval and air systems, sources said. Reliance Defence also has strategic plans to set up a maintenance, repair, overhaul and upgrades of various platforms. The group is also in the process of acquiring Pipavav Defence an hopes to conclude the deal by the end of this year. Reliance Defence has 11 subsidiaries in niche segments of the sector and chairman Anil Ambani had told shareholders recently that defence manufacturing and smart cities will be the future drivers of growth for the company. The group is also pursuing partnerships with several leading international companies, besides looking at stakes in some existing firms in the country and outside to meet home-grown solutions for the sector. Disclaimer: Information, facts or opinions expressed in this news article are presented as sourced from IANS and do not reflect views of Moneylife and hence Moneylife is not responsible or liable for the same. As a source and news provider, IANS is responsible for accuracy, completeness, suitability and validity of any information in this article. TV's 'Breaking news' culture should end: Kerala speaker The growing "Breaking News" culture in the broadcast media should end as it is impacting the society, Kerala assembly Speaker N. Sakthan said on Thursday. "I wish to find out if there can be any law that is there or can be brought to rein in this sort of 'Breaking News' culture, which has now crossed all limits," Sakthan said. The issue was first raised by state Home Minister Ramesh Chennithala in the assembly. "...TV news channels are coming out with statements made by accused in numerous cases and then these are aired as breaking news. This is atrocious because this affects political leaders, ministers and those who hold high offices," Chennithala said. He was responding to the latest allegation of sleaze that came out on Wednesday when Biju Radhakrishnan, the prime accused in the solar scam case, testified before the judicial commission that he had with him video evidence of Saritha Nair, the second accused in the solar scam, in compromising position with Chief Minister Oommen Chandy and two other state ministers. MG Warrier1 year ago With reference to Kerala HM's observation that ""...TV news channels are coming out with statements made by accused in numerous cases and then these are aired as breaking news. This is atrocious because this affects political leaders, ministers and those who hold high offices," quoted here, I would like to request him and those having the same views to revisit Kautilya's ARTHASHAASTRA to know how an administrator should clean his image. Even if the 'breaking news' in TV Channels-some of them- qualify for being categorised as 'GOSSIPS', let us remember, THERE IS NO SMOKE WITHOUT FIRE! Justice Thakur sworn-in as Chief Justice of India Justice Tirath Singh Thakur was on Thursday sworn in as the 43rd Chief Justice of India. President Pranab Mukherjee administered him the oath of the office. Thakur, who has a tenure of 13 months, succeeds Chief Justice H.L. Dattu, who demitted office on December 2. Chief Justice Thakur is slated to retire on January 3, 2017. The swearing =-in ceremony was attended by Vice-president Hamid Ansari, Prime Minister Narendra Modi, leader of main opposition party Congress in the Lok Sabha Mallikarjun Kharge, Leader of Opposition in the Rajya Sabha Ghulam Nabi Azad among others. The swearing-in ceremony was also attended by former Supreme Court chief justices Justice A.M. Ahmadi, Justice A.S. Anand, Justice K.G. Balakrishnan, Justice S.H. Kapadia, and Justice R.M. Lodha.

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George Will: Judicial activism is sometimes necessary | New Hampshire Contact us May 04. 2013 3:17AM George Will: Judicial activism is sometimes necessary "The legislative department is everywhere extending the sphere of its activity, and drawing all power into its impetuous vortex."- James Madison, Federalist 48BUT UNDER today's regulatory state, which Madison could hardly have imagined, the legislature, although still a source of much mischief, is not the principal threat to liberty. Suppose a federal executive department flagrantly abused its regulatory powers for the unmistakable purpose of suppressing truthful speech that annoys the government. If you assume the Supreme Court would rectify this assault on the First Amendment's core protection, you would be mistaken.The government has done this and the court has declined to do its duty to enforce constitutional limits. Herewith an illustration of why conservatives must abandon their imprecise opposition to "judicial activism" and advocate for more vigorous judicial engagement in protecting liberty from the vortex of the regulatory state.Spirit, Allegiant and Southwest are low-cost carriers that have thrived since the deregulation of the airline industry, which began in 1978. The government retains a narrow authority to prevent deceptive advertising practices. But as the airlines argued in petitioning the Supreme Court to hear their case, the government is micromanaging their speech merely to prevent the public from understanding the government's tax burdens.The government's Total Price Rule forbids the airlines from calling attention to the tax component of the price of a ticket by listing the price the airline charges and then the tax component with equal prominence. The rule mandates that any listing of the tax portion of a ticket's price "not be displayed prominently and be presented in significantly smaller type than the listing of the total price." The government is trying to prevent people from clearly seeing the burdens of government.These three low-cost carriers compete for the most price-conscious travelers, and want to tell those travelers which portion of a ticket's cost the airlines control. The government, far from regulating to prevent customer confusion, is trying to prevent customers from understanding the taxes and fees that comprise approximately 20 percent of the average airline ticket.Timothy Sandefur, of the public-interest, limited-government Pacific Legal Foundation, notes that decades ago the Supreme Court, without justification in the Constitution's text, structure or history, created a binary First Amendment. So today the amendment gives different degrees of protection to two kinds of speech - strong protection to political speech, minimal protection to commercial speech.The court has never clearly defined the latter but has suggested that commercial speech proposes a commercial transaction between the speaker and the audience. And the court has held that freedom of commercial speech cannot be abridged if the speech is neither false nor deceptive nor related to an illegal activity.Note two things. The airlines' speech the government is regulating with the Total Price Rule would be protected even if it were just commercial speech. And it actually is political speech: It calls its audience's attention to, and invites disapproval of, government policy.In permitting the government's regulation of this speech, the U.S. Court of Appeals for the District of Columbia held, 2-1, that the Total Price Rule "does not prohibit airlines from saying anything; it just requires them to disclose the total, final price and to make it the most prominent figure in their advertisements." But this ignores the government's obvious purpose of preventing the airlines from drawing attention to the government's exactions.In their brief asking the Supreme Court to reverse the D.C. Circuit's decision, the airlines noted that the government is forbidding them to do what virtually every American industry does - advertise the pre-tax price of their products. Shirts and shoes and salamis are sold with the pre-tax sum on the price tag.D.C. Circuit Judge A. Raymond Randolph, dissenting from the court's permission of this unauthorized and indefensible regulation, asked: How can the government's supposed interest in consumers having "accurate" information be served by requiring "significantly smaller" typefaces for taxes and fees that make up a larger share of the prices of the low-cost airlines than of the older airlines? Randolph said the government's purpose is "to control and to muffle speakers who are critical of the government."Government is violating one of the natural rights that the Founders said government is "instituted" (the Declaration's word) to protect. This episode confirms conservatism's premise that today's government is guilty of shabby behavior until proven innocent. And conservatives enable such behavior when their unreflective denunciations of judicial "activism" encourage excessive judicial deference toward the modern executive's impetuous vortex.George Will is a columnist for Newsweek in Washington, D.C., and a commentator for ABC News..

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Learn More About Civil Litigation Defense in Detroit, Texas Homecivil litigation defensetexasdetroit Detroit is a town in Red River County, Texas, United States. The population was 776 at the 2000 census. John Nance Garner, 32nd Vice President of the United States, was born outside of Detroit but lived most of his life in Uvalde on the southern rim of the Texas Hill Country. Ross Junior Spencer (born in Detroit in 1933) is a retired leader of Independent Baptists in Texas who in 1973 founded Bethany Baptist Church in Lubbock. Civil Litigation Defense Lawyers In Detroit Texas What is civil litigation defense? Civil law, as opposed to criminal law, is the branch of law dealing with disputes between individuals and/or organizations, in which compensation may be awarded to the victim. For instance, if a car crash victim claims damages against the driver for loss or injury sustained in an accident, this will be a civil law case. Civil law courts provide a forum for deciding disputes involving torts (such as accidents, negligence, and libel), contract disputes, the probate of wills, trusts, property disputes, administrative law, commercial law, and any other private matters that involve private parties or organizations including government departments. The objectives of civil law are different from other types of law. In civil law there is the attempt to right a wrong, honor an agreement, or settle a dispute. If there is a victim, they get compensation, and the person who is the cause of the wrong pays, this being a civilized form of, or legal alternative to, revenge. Answers to civil litigation defense issues in Texas Federal court opinions concerning civil litigation defense in Texas 608 F2d 1114 Clairol Inc v. Boston Discount Center of Berkley Inc 608 F2d 254 Estate Rath Detroit Bank and Trust Company v. United States 608 F2d 265 General Electric Company v. Valeron Corporation 609 F2d 1194 Eildon Security Patrol Service Inc v. United States Internal Revenue Service 609 F2d 240 Blue Cross and Blue Shield of Michigan v. National Labor Relations Board 609 F2d 248 Wells v. 10-X Manufacturing Company 610 F2d 914 Papago Tribal Utility Authority v. Federal Energy Regulatory Commission 611 F2d 1295 Local No 3-193 International Woodworkers of America v. Ketchikan Pulp Company 611 F2d 137 Himmler v. Califano Hew Homecivil litigation defensetexasdetroit

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HOW WILL PUBLIC BODIES COPE WITH THE FREEDOM OF INFORMATION? Features: November 26th, 2004 How will Public Bodies Cope With Freedom of Information ? By Ian Quanstrom In recent months some of the most respected observers and commentators of the IT industry have quite rightly thrown doubt on the ability of public sector institutions to prepare for compliance with the Freedom of Information Act in time for the 1st of January 2005 deadline. With this day fast approaching it is still difficult to predict what the demand for information will be and, although it is a challenge to foresee the full extent of the impact of this change, most organisations will be telling staff to assume that all the documents and e-mails they write will be disclosable. Preparing to disclose If one was to observe in great detail the public sector’s approach to the FOIA, and compliance with it, it would become evident that although certain strategies have been put in place by the majority of these bodies, they have in many cases failed to incorporate a procedure for the recording of paper-based documents into their considerations. Recent research suggests that only 17% of local authorities have set aside a percentage of their budget to implement electronic systems designed to help with the dawn of the FOIA. Many will be adopting a ‘wait and see’ approach to the ramifications of non-compliance with the Act, so that organisational decision making can be applied to any problems as and when they arise. A lack of resources, or a reluctance to invest in technology that will ultimately fail to satisfy the FOIA requirements, is typically at the root of such attitudes. What is certain is that organisations have and will be seeking expert insight as to how they can pre-empt or minimise the negative effects of failing to meet their new obligations. They will be looking for informative and practical advice to guide them in the measures that can be taken to avoid a crisis in January next year. With every corner of the public sector being impacted, from health to local government authorities in England and Wales, some organisations are bound to be panicking about the approaching cut-off date. Other pressures, such as the terms of compliance with the Data Protection Act and various eGovernment agendas, are adding another dimension to the confusion with budgets being placed under increasing strain and possible contradictions beginning to emerge. Practical considerations concerning technical, operational and systems change and the associated administrative costs involved are building up into what must be a phenomenal challenge. Managing information In January, internal procedures concerning information management will suddenly become a top priority for organisations in a way that they never have been before, with the frailties of the previous systems becoming all too obvious. A lack of centralised document oversight, standardised naming conventions and logical file structures will be exposed as this latest legislation ushers in a new era in how we record, handle and disseminate information. Undoubtedly the installation of archive, search and retrieval systems that are FOIA compliant could make a tremendous difference to an organisation’s capacity to handle the potential demands that will be brought about by this legislation when it comes into full effect in the New Year. This includes the everyday documentation that feeds data-driven transactions and forms the paper trail that can provide key evidence in any ongoing investigation or transaction adjudication. When this information is lost, complete data records simply cannot exist. To ensure their continuity plans are complete, public sector institutions would be well advised to invest in the relevant paper scanning and archiving applications. The technology does not have to stretch budgets and can provide a targeted solution for the new challenges that lie ahead in the light of the FOIA coming into force. Widespread adoption of this technology, the right software for each organisation’s individual needs, would represent a much overdue sea-change in attitudes to methods of storing and retrieving information. It would help to speed up and improve local services on a day-to-day operational level, independently of the challenges posed by FOIA compliance. We must also not forget that the commercial world will also be affected by the Act. It is a potentially huge issue for anyone sending information to a public sector institution as it may be accessed by the public at large and by anyone in the world, whether that is a lobby group, the press, a campaigner or even a competitor. The challenge of moving to transparency The Act’s real challenge is changing the mindset of those who run and monitor the day-to-day activities of public sector organisations from one of non-disclosure to total transparency as the masses track what civil servants, council officials and others are doing on their behalf. In the long term, as decision-making processes are made clearer to the public, the goal of developing more accountable and responsive public sector services will be realised. The time and expense of ensuring compliance, through the installation of the right systems for the task, will be worth the final result. In many ways the hurdle that must be overcome is a psychological one, as government institutions begins to shift their dependence on physical documents to advanced software, gradually building their faith in this brave new world of electronic document management. Ian Quanstrom is Managing Director of ZyLAB UK.

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In coming weeks, late-term abortion law in Kansas may finally be enforced In coming weeks, late-term abortion law in Kansas may finally be enforced DIARY / Benjamin Hodge // Posted at 8:35 am on January 12, 2011 by Benjamin Hodge The Kansas City Star dishonestly writes about upcoming bills as “tighter restrictions” on abortions. The truth: there are effectively no restrictions! Since 1998, there has been in place a law banning late-term abortions. This law affects post-21 week pregnancies, when the unborn child can very likely survive outside the womb (and therefore can also feel pain. But because of Governor Bill Graves, Governor Kathleen Sebelius, and the Kansas Supreme Court — which is appointed by unaccountable lawyers, not by the people — the law has not been enforced. In one case, documents show that a pregnant mother who wanted to attend a rodeo and was inconvenienced by a pregnancy was allowed a “mental health” exception, when no mental health exception is supposed to exist, at all. With hope, in just a matter of weeks, unborn children who can survive outside the womb will be protected under Kansas law. Trending Media Very Concerned About Whether Sadistic Killer Might Have Coughed During His Execution Patterico ______________________ Connect with Benjamin Hodge at Facebook, Twitter, LinkedIn, The Kansas Progress, and LibertyLinked. Hodge is President of the State and Local Reform Group of Kansas. He served as one of seven at-large trustees at Johnson County Community College from 2005-’09, a member of the Kansas House from 2007-’08, a delegate to the Kansas Republican Party from 2009-’10, and was founder of the Overland Park Republican Party in 2011. His public policy record is recognized by Americans for Prosperity, the Kansas Association of Broadcasters, the Kansas Press Association, the Kansas Sunshine Coalition for Open Government, the NRA, Kansans for Life, and the Foundation for Individual Rights in Education (FIRE). redstate.com Congress should hold hearings on Russia’s interference in the election - Hot Air hotair.com Ditching Electoral College Would Allow California to Impose Imperial Rule on a Colonial America | Human Events humanevents.com 'Fixed it for you': Nate Silver's claim about what cost Hillary the election gets 'stated differently'

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Court rules negative notice in teacher's file can stay Bryce Alderton The Laguna Beach Unified School District does not need to remove a note from a teacher's personnel file that alleges she arrived at school drunk in December 2010, an Orange County Superior Court judge ruled this week.In his ruling, Judge Andrew Banks said Barbara Joan McKnight needed to prove that the school district's notice of unprofessional conduct "was arbitrary, capricious or entirely lacking in evidence, i.e. that the board action in issuing the notice was an abuse of discretion," according to a court document provided by McKnight's attorney, James Guziak. Banks ruled Tuesday that he did not find that to be the case, writing that the school district was lawful in placing a notice in McKnight's file, said Daniel Spradlin, the school district's attorney."There was no abuse or improper action by the school district," Spradlin said.The Orange County Register first reported the story.McKnight was and is currently a science teacher at Laguna Beach High School. She denies the allegation, citing personal reasons for arriving late to school the morning of Dec. 10, 2010.On that day, district administrators accused McKnight of arriving at school under the influence of alcohol and being insubordinate, according to a claim filed in Superior Court last November."McKnight did not come to school under the influence of alcohol, was not under the influence of alcohol at work and did not otherwise act unprofessionally," according to her claim.Guziak sent a letter in January 2011 to the school board that said McKnight's brother was "gravely ill" and she was dealing with this and "other issues of compelling personal interest well into the evening of Dec. 9, 2010. She overslept the next morning and having done so, called about why she would be late."She was told an investigator would be hired, she [McKnight] would be interviewed, students would be interviewed, but none of those things happened."Whether McKnight suffered a violation of her due process rights will be argued during a trial scheduled for Nov. 4, according to Guziak and Spradlin."We say there is a policy that mandates investigation into claims of harassment," Guziak said. "We'll be arguing her privacy was violated and this was all part of a campaign to retaliate against her for whistle blowing she did to school board members about [then Principal Don Austin]. The important thing is that there has been no court ruling on the accuracy of the intoxication claim."Spradlin has filed a motion for summary judgment, in which a judge determines whether there are enough issues of fact to warrant a trial, he said. A judge is scheduled to rule on the motion Aug. 20. Orange County Superior Court

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A truck driver who was involved in a fatal July crash on I-55 near Chicago has pleaded not guilty to charges related to falsifying his logbooks, but reckless homicide charges are still possible in the crash that killed five. According to published reports, prosecutors are still awaiting the results of investigations by the Illinois State Police before deciding further charges against Francisco Espinal-Quiroz, an owner-operator who has been held on $1 million bond since the July 21 crash. Espinal-Quiroz allegedly changed lanes abruptly and hit several vehicles stopped in a construction zone. He allegedly was speeding in the construction zone. The Federal Motor Carrier Safety Administration suspended the company's operating authority after it was refused access to company records following the crash. Another factor that has been raised, according to Chicago-area TV station ABC7, is that Espinal-Quiroz reportedly has significantly limited vision in one eye and that he did not have a current exemption as required on his CDL. Espinal-Quiroz's attorney emphasized that the investigation is still ongoing on both sides and filed a motion asking that devices and evidence be preserved. Attorney Sarah Toney is a criminal defense attorney but does not specialize in transportation or trucking. She is editor of the newsletter Traffic Laws and Courts Section of the Illinois State Bar and is a member of the National College for DUI Defense. Tags: Hours of Service, Illinois, I-55 Walmart Ordered to Pay $54 Million in Driver Pay Lawsuit Celebrating Strong Women in Trucking Arizona to Test Work Zone Notification, Quicker Safety Inspections

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Judge says pregnant women can bar fathers from delivery room Updated: Mar 14, 2014 - 7:07 AM NEW JERSEY - Some dads-to-be could be kept out of the delivery room in New Jersey. In a decision released this week, a judge ruled pregnant women can block the biological father of their children from entering the room. "The ruling stems from the case of a couple who got engaged after the woman became pregnant, but later broke up. That father sued for the right to be present at the birth of the child, though a judge disagreed." That's according to Superior Court Judge Sohail Mohammed. The case started back in November when Steven Plotnick sued to get Rebecca DeLuccia to inform him when she went into labor. He wanted access to the baby when it was born. The two went to court the same day DeLuccia went into labor and gave birth to a baby girl. Mohammed ruled that day all patients, including pregnant women, can decide who can be at their hospital bedside. The decision was released on Monday. The Star-Ledger explains Mohammed based his opinion on two landmark abortion cases — Roe v. Wade and Planned Parenthood v. Casey. Mohammed wrote, "Any interest a father has before the child’s birth is subordinate to the mother’s interests" since it's the woman carrying the baby to term. NPR's Jennifer Ludden explains, "The judge ruled that requiring the father's presence would pose 'unwarranted strain' on the mother." "It's just safer in general to have people the mother is most comfortable with to be in the room there with her." Essentially, the decision asserts a father has no legal right to be in the delivery room. But not everyone agrees. Some groups say the ruling is discriminating against fathers, making it seem that they are nothing more than visitors. “It’s a sad day for fathers, and for father’s and men’s rights ... The way we look at it is a child is born, a child had two parents and they should be two equal parents.” According to Headlines and Global News, Plotnick will not appeal the decision. He was able to see the baby soon after she was born.

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Special Weapons for Fighting Giants Revoke their charters, and other legal tools to hold corporations accountable to our laws. Anti-coal photographer and activist Mark Schmerling brought his photo of Massey Energy’s destruction of Kayford Mountain to an EPA hearing in Philadelphia. Delaware Attorney General Joseph R. “Beau” Biden is being urged to decharter Massey because of the company’s reckless history. Photo courtesy of Rainforest Action Network. Robert Weissman posted Mar 14, 2012 The last few years have seen a series of corporate catastrophes, for which the perpetrator companies have escaped any meaningful accountability. Big banks and giant Wall Street firms tricked and ripped off homeowners and investors, and crashed the national and global economy. BP’s reckless operations poisoned the Gulf of Mexico in one of the worst oil disasters in history. Massey Energy’s cost-cutting led to the Upper Big Branch coal mine collapse that killed 29 workers. There have been virtually no criminal prosecutions for Wall Street wrongdoing related to the crash, and precious few civil actions. Criminal charges are likely to be filed against BP, but the company already has been granted new permits to drill for oil in the Gulf. Massey Energy—now owned by Alpha Natural Resources—was forced to pay $200 million in penalties but avoided any criminal prosecution. This history notwithstanding, We the People, and our government representatives, do have the power to hold companies accountable for the wrongs they commit. The challenge is to mobilize sufficient political pressure to demand that available tools be used and new mechanisms of accountability be created. One powerful way to hold companies accountable is through debarment—denying corporate wrongdoers the right to obtain government contracts. Almost every major company does significant business with the government, so debarment is a penalty with teeth. Similarly, federal, state, and local governments should deny other government benefits to corporate criminals and wrongdoers. Denying BP the right to drill in the Gulf is a penalty that would sting. Drug companies that can’t sell to Medicare, Medicaid, and the Department of Veterans Affairs are deprived of more than a third of their market. The Federal Communications Commission has the authority to deny broadcast licenses to media corporations that do not exhibit “good character.” Federal and state governments do frequently debar companies, but typically only smaller firms that engage in massive fraud or operate as criminal enterprises. Charter revocation effectively constitutes the death penalty for a corporation. Even occasional use would be a major deterrent to corporate wrongdoing. A second tool to discipline corporate wrongdoers is charter revocation. Establishing a new corporation requires that a state government grant a charter to operate. (This is typically a perfunctory requirement, as evidenced by the state of Virginia’s grant of a charter to Licensed to Kill, Inc., a company whose articles of incorporation state that it will engage in “manufactur[ing] and marketing of tobacco products in a way that each year kills over 400,000 Americans and 4.5 million other persons worldwide.”) State governments have the right to revoke charters from companies that do not serve the public interest. Free Speech for People has petitioned Delaware to revoke the charter of Massey Energy. Charter revocation effectively constitutes the death penalty for a corporation. Even occasional use against large corporations would be a major deterrent to corporate wrongdoing. A third form of control on corporate wrongdoing is civil litigation. Lawsuits against corporate wrongdoers not only afford victims an opportunity to receive some compensation for the harms they have suffered, they work to strip corporations of ill-gotten gains. The civil justice system is a vital deterrent to corporate misconduct, because it means corporations will at least sometimes be forced to pay for the harms they cause. And lawsuits provide direct justice to victims of corporate wrongdoing, without the need to persuade government officials to act. In many ways, the U.S. civil justice system is the most important form of corporate accountability we have. It’s for exactly these reasons that corporations have worked for decades to undermine the functioning of the civil justice system, making it harder to file cases, interfering with the ability of victims to join together in class actions, making it harder for victims to obtain evidence, capping the damages that victims may recover, limiting punitive damages, and forcing victims out of the civil justice system (real courts) and into arbitration tribunals biased to favor giant corporations. In recent years, organizations like EarthRights International and the Center for Constitutional Rights have innovated new ways to hold corporations accountable in U.S. courts for harms perpetrated overseas, relying especially on a law passed in 1789 called the Alien Tort Claims Act. The U.S. Chamber of Commerce has responded with a campaign to foreclose such litigation. Who Really Gets Burned With Tort Reform?It's not about protecting ordinary people. It's about the profits of the people and corporations who cause injuries. In addition to using these and other corporate accountability tools already at our disposal, we need more. Among other things, we need to significantly strengthen the penalties for corporate endangerment of people’s lives and well-being. In many instances, there is no criminal penalty applicable for recklessly putting consumers’ or workers’ lives at risk by knowingly selling dangerous pharmaceuticals or defective cars or by exposing workers to deadly toxic chemicals or other hazards. A law that would make it a felony to recklessly endanger consumers or workers, with stiff fines and sanctions for companies and jail time for responsible corporate management, would make our world safer and restrain corporate misconduct. We live in a time of massive disparity between penalties for street criminals and corporate wrongdoers. Corporations, which claim all the rights of “persons,” are subjected to much weaker punishments than real people. It doesn’t have to be. Cities, churches, and colleges take steps to move their money home.What we can do right now to strengthen our democracy.Where the infamous Citizens United decision came from and how to overturn it. Robert Weissman wrote this article for 9 Strategies to End Corporate Rule. Robert is president of Public Citizen, a consumer advocacy and corporate accountability organization based in Washington, D.C. Watch Us Move Our Millions4 Ways to Flex Our Electoral MusclesRights are for Real People

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The Business Ethics Blog A blog about Business Ethics by Chris MacDonald, Ph.D. Blog Business Ethics Highlights Subscribe to the Business Ethics Blog Business Obligations During Natural Disasters Filed under: corporate citizenship, disaster, employees, philanthropy, safety | As Hurricane Sandy bears down on Atlantic City, New York, and (eventually) parts of eastern Canada, thousands of businesses large and small are faced with dilemmas related to doing business before, during, and after a potential state of disaster. Certainly some businesses won’t have a choice, as flooding either wipes them out or makes access impossible. The NYSE and Nasdaq have both made the unusual move of staying closed for the day today (Monday). But others will have hard choices to make, and no easy formula for making such choices is at hand. Choice #1 pertains to the basic issue of staying open. Here, business owners need to balance the safety and security of their employees and buildings, on one hand, with the needs of their customers on the other. The weight given to the needs of customers must of course depend on just what you’re selling. If you sell water and flashlight batteries, a sense of social obligation ought to keep you open ‘as long as possible.’ The second choice has to do with the closely related question of whether businesses should require employees to work before, during, and after a natural disaster. Sometimes being at work will pose risks to health and safety, and sometimes the risk lies in getting to work. The transit closures that go with severe weather are a factor here, too. Lack of access to public transit can make it difficult, and sometimes dangerous, for employees to get to work. But then again, in some cases employees — especially ones earning an hourly wage — will prefer to work, in which case telling them to go home may be overly paternalistic. The third question is about prices. In a reasonably free market, prices tend to go up when goods are scarce and when demand is high. And natural disasters have a way of both limiting supply and raising demand. As supply chains get cut off, it may be reasonable for businesses to raise prices somewhat in order to cover additional costs. But stores need to be careful to stay on the right side of the law — most jurisdictions have anti-price gouging laws that put limits on just how much you can raise prices in the wake of disaster. All three choices involve difficult decisions about how to balance the competing interests of various groups. But in terms of fundamental motivation, it’s also worth pointing out that staying in business as long as possible can be a great way to build goodwill. A business that is there for its community in times of crisis is likely to reap rewards for a long time to come. The business I happen to work for — Ryerson University — is an unusual kind of business when it comes to questions like these. I asked our VP Administration & Finance, Julia Hanigsberg, about the criteria Ryerson uses to decide whether and when to close. “The safety of our community is the primary consideration on whether to close the university or cancel classes during extreme weather conditions or other emergency situations,” Hanigsberg told me. “Our Integrated Threat and Risk Assessment team monitors the situation by scanning publicly available sources and consulting with expertise available in the broader public sector about road conditions, availability of public transit, information from Emergency Services etc.” One particularly interesting point that Hanigsberg made had to do with the fact that, really, the university never fully shuts down. Hanigsberg says: “Unlike most businesses, even when we ‘close’ the university is operational 24/7 with students in residence, research labs operational etc.” The same is true for hospitals, of course, as well as other public services like shelters. But the same is true for businesses such as hotels and kennels and airports. Anything charged with the 24/7 sheltering and feeding of humans or animals — is unlikely to shut down entirely. The same obviously goes for essential services, such as police, fire, and ambulance. They’re not businesses in the traditional sense, but they face the same dilemmas, albeit with a much stronger public service impetus pushing them to keep the wheels turning. The inability to shut down entirely brings special obligations, of course. For starters, it puts a premium on planning for disasters. Businesses that can’t shut down need to have plans in place, and need to train employees both in safeguarding their own health and safety, and in looking out for the customers who may be entrusted to their care in the most trying, and ethically challenging, of circumstances. Share this:ShareTwitterTumblrLinkedInFacebookEmailPrintPinterestLike this:Like Loading... « ‘Do Your Best’ in The Tangle of Global Business Storms, Global Warming, and Corporate Citizenship » 1 comment so far “Business Obligations During Natural Disasters” – Recommended Business Ethics Blog by Chris MacDonald | Ethics Alive – Business Ethics Speaker Chuck Gallagher shares Ethics Alive October 30, 2012 […] The blog Chris wrote is worth a read and can be found here. […] Chris MacDonald, Ph.D., is an educator, speaker, and consultant in the realm of business ethics. He teaches at the Ted Rogers School of Management, at Ryerson University in Toronto, where he is Director of the Jim Pattison Ethical Leadership Education & Research Program, at the Ted Rogers Leadership Centre. Chris is currently Interim Director of the Ted Rogers MBA at Ryerson. He is also a Senior Fellow at Duke University's Kenan Institute for Ethics. Chris has three times been declared one of the "Top 100 Thought Leaders in Trustworthy Business Behavior", and has several times been named one of the "100 Most Influential People in Business Ethics". He has been writing The Business Ethics Blog since November of 2005. The blog is now exclusively syndicated by Canadian Business magazine. Business ethics professors say The Business Ethics Blog is... "...the best thing that ever happened to Business Ethics courses...clear and intelligent presentation of the real ethical stakes behind the current headlines..." [Prof. Wayne Norman, Duke University] "...one of the best destinations on the web to send students for fascinating and timely analyses of cutting-edge issues ..." [Prof. Laura Hartman, DePaul University] Chris MacDonald is now Contributing Editor for Emtrain's Code of Conduct training course: Trump, and Why Corruption Matters Business Needs to Let Government Lead on Education When Should Apology Be Followed by a Change in Policy? The 2016 Rio Olympics were a great sporting event, and an ethical mess Why corporate diversity programs fail, and what to do about it About Chris MacDonald,Ph.D. BusinessEthics.ca Business Ethics Speakers Series My Biotech Ethics Blog My Food Ethics Blog The Research Ethics Blog Ethics of Complementary & Alternative Medicine Other Business Ethics / CSR Blogs Subscribe to e-mail notification of new postings. Welcome, Students! (advice for students using this blog) The EthicsWeb Bookstore Chris MacDonald, Ethics Consultant Business Ethics Journal Review

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« Back to News Print This Topics Admissions 'Before Brown' When people talk about the demolition of the doctrine of "separate but equal," the case everyone focuses on is Brown v. Board of Education, the U.S. Supreme Court's landmark 1954 ruling. Four years earlier, however, the Supreme Court rejected that doctrine in a higher education case -- one that set the legal framework for Brown and helped shape the strategy of Thurgood Marshall in his assault on Jim Crow in education. By Scott Jaschik September 8, 2010 Comments When people talk about the demolition of the doctrine of "separate but equal," the case everyone focuses on is Brown v. Board of Education, the U.S. Supreme Court's landmark 1954 ruling. Four years earlier, however, the Supreme Court rejected that doctrine in a higher education case -- one that set the legal framework for Brown and helped shape the strategy of Thurgood Marshall in his assault on Jim Crow in education. The case was Sweatt v. Painter, in which the court ordered the admission of Heman M. Sweatt, a black man, to the law school at the University of Texas at Austin. Sweatt's lawsuit exposed the extent of the inequalities in Texas higher education. When he sued, the state had no law school at all for black people, and in an attempt to defend "separate but equal," Texas quickly created one. (It is now the law school of historically black Texas Southern University and is named for Marshall.) But the Supreme Court pointed out all that the new law school lacked, including the participation of the students and faculty members one would encounter at Texas -- and rejected "separate but equal."Before Brown: Heman Marion Sweatt, Thurgood Marshall and the Long Road to Justice (University of Texas Press) tells the story of that case. The author is Gary M. Lavergne, who is director of admissions research at the University of Texas at Austin. He recently responded via e-mail to questions about his new book.Q: Given that Sweatt v. Painter rejected "separate but equal," why do you think it has received relatively little attention compared to Brown v. Board of Education?A: Because Brown was such a milestone in the history of our country, and civil rights in particular, it simply overwhelmed Sweatt, which was ruled upon only four years earlier. Brown was emphatic: "...separate is inherently unequal..." but like all milestones, especially in legal history, it was made possible by the events that preceded it. In my view the story of Heman Marion Sweatt is the most underappreciated piece of the remarkable story of the demise of legal racial segregation.Q: Do you think Sweatt v. Painter made the Brown decision inevitable? Was "separate but equal" actually killed before Brown?A: Justice Tom Clark, one of the justices who ruled on both Brown and Sweatt, said, "In fact, not in Brown as people say, did we overrule [the separate-but-equal doctrine in] Plessy. We implicitly overruled Plessy in Sweatt." But in Sweatt the Court did so in a subtle way. Separate-but-equal became moribund when they did two things: First, they said that Heman Sweatt could not be separated from the people (and their ideas) he would have to interact with when he became a lawyer. The only possible remedy was admitting blacks to all-white institutions. Second, the Court said that "separate equality" was more than just tangible measures like the number of books, buildings, money, and number of faculty. It was also "those qualities which are incapable of objective measurement" like the reputation of the school and its faculty, the influence of the alumni, and all of the "social and cultural capital" we read about today in books about access. Chief Justice Vinson knew very well that it was impossible to create a separate law school for African Americans, where none had existed before, with equal intangibles like the "position and influence of the alumni" with "traditions and prestige." Thus, they made separate equality in professional schools a practical impossibility. Sweatt made Brown possible insofar as at the time of Sweatt the Court seemed not quite willing to take the final unambiguous step they took only four years later. But they settled for making legal racial segregation in graduate and professional schools impossible.Q: The University of Texas has continued over the years to debate issues of race -- with the Hopwood decision, with the recent move to rename a dormitory that honored a Klan leader. How has Sweatt shaped the university? Do people at the university know enough about the case?A: It is my observation that, with the exception of a few classes in some law schools, a negligible number of people, especially in higher education, really appreciate the significance of Sweatt v. Painter. The University of Texas at Austin has a Division of Diversity and Community Engagement that sponsors an annual Heman Sweatt Symposium on Civil Rights and the part of the campus where the Undergraduate Admissions Center is located is called the Sweatt Campus. I know from direct experience that Sweatt's ideals guide the operations of both of those offices. On the other hand, Texas and UT Austin are not unlike other states and institutions: on occasion we are haunted by the vestiges of our unfortunate history when it comes to race. On many occasions I've said to students that wisdom is not possible without studying history -- to believe otherwise is to think wisdom is a psychic phenomenon. So, I wanted to create literature that makes us wiser, and the story of Heman Sweatt was an ideal choice.Q: Do you see implications in the history of Sweatt for the debates over affirmative action today?A: The Sweatt story is more than an interesting historical artifact. Indeed, it continues to guide us. My friend, Jonathan Alger, the general counsel of Rutgers University, recently wrote that the Sweatt case foreshadowed the current argument we are having, articulated in Bakke (1978) and then in Grutter (2003), that there are educational benefits for all students when they are exposed to a diversity of ideas, and access to ideas is a constitutional right. In Bakke, the Supreme Court used Sweatt to condemn the isolation of individuals from ideas; in Grutter, it was used to argue that since higher education was the training ground for the nation's leaders, it had to be visibly open to individuals of every race and ethnicity in order to "...cultivate a set of leaders with legitimacy in the eyes of the citizenry... ." Arguably, the "intangibles" in Sweatt, those things that cannot be objectively measured but make for greatness in a law school, bear a resemblance to Justice O'Connor's insistence that applicants not be subjected to a rigid, merely "mechanical" admissions process. In both cases the exclusive use "objective" measures give way to holistic approaches.Q: The history of desegregation in higher education has been accompanied by concerns about historically black colleges. As your book notes, this case resulted in the creation of a historically black law school -- and the Legislature cut the budget for black colleges after the Supreme Court's decision. Are there lessons in the history of this case for black colleges today?A: This is such a great story: The Thurgood Marshall School of Law, the "House that Sweatt Built," was named the most diverse law school in the nation three consecutive years by U.S. News & World Report. It is named after the person who fought hardest to prevent its creation. The single richest lesson I learned while investigating the Sweatt case is that I grossly underappreciated how divided the African American community was in Sweatt's time over issues like integration. There were black leaders who clearly feared what impact victories in Sweatt and Brown would have on significant African American social structures, neighborhoods and schools especially. I think present-day discussions about the missions of the historically black colleges are a continuation of that debate. During the preparation of my manuscript, in all of my discussions with African American scholars, lawyers, and clergy, the subject of the role of historically-black institutions came up, and this is one of those rare instances where everyone on all sides has a good point to make. I might add that in spite of the internal divisions among African Americans I described above, the Sweatt case brought the black community together: they all agreed that if Heman Marion Sweatt wanted to go to the University of Texas, he should be able to go.Q: Not many people in university admissions publish several scholarly books. How have you managed your career to do so?A: I get asked that all the time ... and the answer is rather unromantic. Some people play music or do art, some do woodworking while others play golf, some travel, and still others read for enjoyment. I enjoy all of those things, but not while I am writing books. After I decide on a topic it takes up a minimum of three years of all of my evenings, weekends, free time, and vacations. That's not as bad as it sounds; I enjoy it. It helps that my wife is in admissions and is a writer and my editor who has a great deal to say about everything I write. Also, while at work the best friends I have on campus are lawyers. I often go home at the end of a day inspired by their expertise and passion. In the admissions profession, I don't know of many officers anywhere who spend a lot of time studying their institution's darkest days; we market the opposite. I found it very helpful. The truth is that in February of 1946 the University of Texas rejected a law school applicant for no other reason than because he was black. At the same time we have to remember that Heman Marion Sweatt eventually came to the University of Texas, and was just as much a Longhorn as anyone else. Sweatt had a thousand reasons not to come here, but he came anyway. He was what a Longhorn should be because he made it easier, though not easy, for everybody that has ever come after him. He made us a better institution. And therein lies a character worth studying. Read more by Scott Jaschik jump to comments

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Banking & Finance Law Blog Is the FDIC Staking Out Its Territory or Extending Its Borders? Related Articles ACH Compliance Webinar: Understanding Regulations that Affect ACH Transactions FDIC Files Libor Manipulation Lawsuit for Alleged Harm to Failed Banks FDIC: Banks Improve, Number of Problem Institutions Continues to Decline Cornerstone Research: FDIC Lawsuits Continue to Mount, Individuals Contributing Out-of-Pocket to FDIC Claims Settlements Related Publications Bernard L. Madoff Invesment Securities Dodd-Frank bill Dodd-Frank Wall Street Reform & Consumer Protection Act Investment Advisers Act Ponzi scheme sentencing private equity fund managers registration requirement Scott Rothstein Sheshunoff Zeek Rewards 08:03 AM Author: Kevin M. LaCroix Is the FDIC Staking Out Its Territory or Extending Its Borders? With one lone exception, the FDIC has not yet itself pursued litigation against the directors and officers of a failed financial institution. However, the FDIC has already made it clear that it intends to assert its rights under FIRREA as the receiver of failed banks to take control of shareholders' derivative lawsuits. More recently, and perhaps more aggressively, the FDIC is now attempting to intervene in two direct shareholder actions where failed institutions' aggrieved investors are asserting their own claims, rather than derivatively asserting those of the failed institution. These more recent moves may represent efforts not just to assert but to extend the FDIC's litigation preclusion rights. The FDIC's actions are interesting in and of themselves, but also for what the FDIC has claimed in asserting its rights. The FDIC's most recent move in this direction is its October 4, 2010 motion to intervene in the Haven Trust Bancorp securities class action litigation pending in the Northern District of Georgia. A copy of the FDIC's memorandum in support of its motion to intervene can be found here. Haven Trust Bancorp was the parent corporation for Haven Trust Bank, a Duluth, Georgia failed bank of which the FDIC took control on December 12, 2008. The FDIC has previously moved to intervene in the negligent misrepresentation lawsuit that individual investors had filed in Fulton County (Georgia) State Court against certain former directors and officers of Georgian Bancorp. A copy of the FDIC's September 23, 2010 motion to intervene, and accompanying motion to remove the case to federal court upon grant of the intervention, can be found here. Georgian Bancorp was the corporate parent of Georgian Bank, of which the FDIC took control on September 25, 2010. My prior post about the Georgian Bancorp case can be found here. Both of these lawsuits are direct, not derivative, actions. In each case the plaintiffs seek to recover damages in the form of their own lost investment interests. In asserting that it nevertheless has the right to intervene, the FDIC raises a number of interesting arguments. First, in both cases, the FDIC asserts that both cases are basically just derivative lawsuits in disguise. Thus, for example, in the Haven Trust case, the FDIC asserts that "although Plaintiffs have attempted to frame their allegations of wrongdoing and damages in terms of securities fraud and misrepresentations ...Plaintiffs' alleged losses clearly emanate from the fact that the Bank, as sole asset of the Holding Company, became worthless upon the appointment of the FDIC as receiver for the Bank." In the Georgian case, the FDIC asserts that the plaintiffs' claim is "in substance a derivative claim." The FDIC asserts, the shareholders' claims are, in effect, "double derivative" claims. Second, the FDIC asserts that as receiver of the respective banks, under 12 U.S.C. Section 1821 it has succeeded to "all rights, titles, powers, and privileges of the insured depository institution, and of any stockholder ... of such institution with respect to the institution and the assets of the institution." In reliance on this provision, the FDIC asserts as an initial matter that it has priority rights to assert the claims presented in the respective plaintiffs' complaints, because they are essentially derivative complaints. The FDIC's further argument in reliance on this statutory provision is with reference to the respective institutions' D&O insurance policies. Thus, for example, the FDIC asserts in the Georgian case that among the assets with respect to which it assumed priority upon being appointed receiver was Georgian's D&O insurance policy, which "provides limited and finite monies for claims covered by the Policy and may be the only source of recovery against the Defendants in this or any subsequent lawsuit." The FDIC points out further that the D&O policy is a "wasting asset" that would be reduced by defending the plaintiffs' claims. The FDIC has the right to intervene, it therefore asserts, because "its ability to recover in a subsequent lawsuit will be affected by any judgment in this action or protracted litigation." The FDIC is even more explicit about the possibility of its pursuing claims in its intervention motion in the Haven Trust case. There the FDIC explicitly stated that its investigation includes examination of the "acts and/or omissions of the Bank's former officers and directors in connection with their management of the Bank's affairs." The FDIC states that after completing its investigation it will determine "whether claims should be brought against any individual or entity," noting that "several of the defendants in this case, as former officers and/or directors of the Bank, are potential targets." There are a number of concerns with the grounds on which the FDIC is moving to intervene. First, the FDIC completely disregards the investors' own legal right to assert their own claims for their own alleged financial injuries. Second, and perhaps more to the point, the investors are asserting their claims as shareholders of the parent holding companies of the failed banks, not of the failed banks themselves. The FDIC's priority rights extend to its rights as receiver of the failed bank. Whether the FDIC can assert rights on behalf of the parent holding company of the failed bank is a potentially contentious proposition. Section 1821 (d)(2)(A)(i), on which the FDIC relies to assert its priority rights, refers to the rights, titles, etc., of the "insured depositary institution, and of any shareholder ...of such institution." However, the plaintiffs' in this shareholder suits are not asserting rights as shareholders of the institution, but of the parent holding company. The FDIC may or may not be able to persuade a court to make the leap from its rights as receiver of the failed bank to the rights of the shareholders of the bank's parent company, but the argument seems to strain the language of the provision. Finally, the FDIC may indeed be interested in preserving the D&O policies, but there is nothing about Section 1821 that gives the FDIC priority to the proceeds of the policy, in preference to other prospective claimants. The insurance proceeds are not a cash fund like an investment account: rather, the proceeds are available only for payment of certain kinds of loss arising from claims. The policy itself may be an asset of the estate, but the proceeds are available only pursuant to the terms and conditions of the policy, only for payment of claims, and the rights of the insureds and the claimants to the proceeds of the policy are determined by the policy's own terms. Whatever else may be said about the FDIC's actions in moving to intervene in these case, they do show both that the FDIC is actively considering pursuing its own lawsuits, and that it is will to move aggressively to preserve its own recovery prospects in the event it subsequently decides to pursue lawsuits. The pretty clear message is that the FDIC does intend to pursue lawsuits, too. As if the prospect of competing lawsuits from both investors and regulators were not daunting enough for directors and officers of failed institutions (and their insurers), a lawsuit recently filed in South Carolina suggests yet another type of prospective claimant that may be asserting claims against failed banks' directors and officers. On September 29, 2010, the trustee for the estate of Beach First National Bankshares filed a lawsuit in the Bankruptcy Court for the District of South Carolina against certain directors and officers of the bankrupt company. A copy of the complaint can be found here. The company's wholly owned subsidiary, First National Bank of Myrtle Beach, was closed on April 9, 2010 The Trustee's complaint asserts claims for breach of fiduciary duty and negligence. While the Trustee may have seized the initiative in this case, there would seem to be the possibility that the FDIC might yet seek to intervene in the Trustee's case just as it did in the cases described above. Disappointed shareholders might also seek to assert their own claims for harm to their own investment interests, particularly since the First National holding company is a publicly traded company. The possibility of claims asserted by these various prospective and active claimants underscores how one of the consequences of a bank failure may be a scramble for the proceeds of the insurance policy. The FDIC may well contend that under FIRREA it has certain priorities but other claimants are also highly motivated to circumvent the FDIC's asserted rights. Of course in the end the FDIC may establish its priority. But in the meantime, the scramble for the D&O insurance could become quite a circus. And in the center ring could be the directors and officers of the failed institutions - and their insurers - against whom the competing claimants will assert their claims. The likelihood for further D&O litigation involving failed banks' directors and officers seems high. One final thought about the FDIC's interventions in the two case discussed above -- there have been a fair number of shareholder class actions brought by investors in failed financial institutions. It will be interesting to see how far the FDIC goes with thie intervention tactic and whether it will seek to intervene in other cases involving larger financial institutions. Perhaps its initiatives in the two Georgia lawsuits are test cases that will determine whether it will seek to intervene elsewhere. Many thanks to a loyal reader for providing copies of the various pleadings to which I linked above. A copy of an October 3, 2010 Myrtle Beach Sun News article about the Beach First Trustee's lawsuit can be found here. (Full disclosure, I was interviewed in connection with the article.) Read other items of interest from the world of directors & officers liability, with occasional commentary, at the D&O Diary, a blog by Kevin LaCroix. FIRREA

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What is the New York State Nurse Practice Act? The New York State Nurse Practice Act is a set of laws enacted by the state of New York regulating safe and appropriate nursing practice. Nursing care can pose risks to the public if practitioners are not competent, so the state sets standards of competence through the Nurse Practice Act. What are some of the important points of New York State divorce laws? What are the requirements for becoming a pediatric nurse? What are the laws around unclaimed funds in New York? According to the National Council of State Boards of Nursing, all states have a nurse practice act, which establishes basic standards, such as education program requirements, nursing practice specifications, licensure requirements and possible violations. Each state's nurse practice act also establishes a board of nursing, which sets rules and regulations that clarify and interpret the basic standards laid forth in the act. ncsbn.org What are some New York state labor laws? There are many labor laws in the state of New York. The New York State Department of Labor governs minimum wage, work hours, child labor, wage payments and... What are some laws regarding squatter's rights in New York? As of 2016, New York's laws concerning squatters' rights include that claimants cannot share the possessed land and must occupy it continuously for at leas... What are the laws regarding adoption in the state of New York? New York state laws do not place limitations on who is eligible for adoption. Adults are permitted to adopt other adults. Anyone over the age of 14 must co... What are some of the New York State criminal laws? Some of New York State’s criminal laws include Article 140, dealing with burglary and related offenses, and Article 155, dealing with larceny. New York is ... Where could you find a list of your local candidates for judge? How often are most people asked to report to jury duty? How can you find out if a lawyer has been disbarred in the United States? What is a contract line item number? What is the Davis-Bacon Act? How do I remove a name from a deed to a house? New York State Board of Nursing New York State Estate Tax New York State Inheritance Tax New York State Gem New York State Laws New York State Symbols New York State Nickname New York State Regions Can an employer require a doctor's note? How long can a U.S. citizen stay in the Philippines? When did legalism begin?

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Proposed legislation could aid drainage work Proposed legislation could make issuing payment warrants for drainage work easier in the future. John Torbert, executive director of the Iowa Drainage District Association, presented an update to the Webster County Board of Supervisors before its regular meeting Tuesday. “We had a request come forward that talks about raising the maximum warrant amount that can be issued from $1,000 to $5,000,” Torbert said. “We’re getting that bill out and drafted as we speak.” Warrants are issued to a company for the total amount of work to be done at the start of a project, and paid off at a later date. The low limit means a high number of warrants must be issued for a single project, adding to the paperwork. The rule originally made it easier to pay off warrants, said Webster County Drainage Clerk Doreen Pliner, but the low limit is now outdated. “Originally the districts were probably – a big one was $50,000, a regular one was $20,000 or $30,000,” she said. A recently completed project cost $750,000, she said, “so we had to issue 750 warrants, and then you have to figure interest on each individual warrant.” Torbert briefed the board on possible changes in EPA regulations, and on a recent court decision affecting the relationship between railroads and drainage districts. The IDDA also has new books on drainage regulations available, as the previous book had not been updated for years. The dues for the association will increase on July 1, from 2 cents per acre to 2.5 cents per acre, or $8,000 per year for Webster County, Torbert said. In other business, Supervisor Bob Singer reported that he and five individuals from Webster County, including Webster County Engineer Randy Will and Fort Dodge City Councilman Kim Alstott, will attend Transportation Day today in Des Moines. “We continue to encourage the state to address the problems we have in terms of roads, and funding roads,” said Singer, who serves on the U.S. 20 Corridor Association board. The gas tax in Iowa has not gone up since 1988, he said. The Iowa Association of Counties will ask the legislature for an increase of 10 cents per gallon, over a period of time, to pay for roads. Singer said he will bring a similar resolution for the Board of Supervisors to vote on at next week’s meeting.

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| Gray v. Industrial Commission Gray v. Industrial Commission THEODORE A. GRAY, APPELLANT,v.THE INDUSTRIAL COMMISSION ET AL. (ELECTROCAST STEEL FOUNDRY CO., INC., APPELLEE). MR. JUSTICE UNDERWOOD DELIVERED THE OPINION OF THE COURT: Claimant, Theodore A. Gray, filed a claim with the Industrial Commission under the Workmen's Occupational Diseases Act (Ill. Rev. Stat. 1971, ch. 48, par. 172.36 et seq.), on November 10, 1971, alleging disablement resulting from an occupational disease arising out of and in the course of his employment by respondent, Electrocast Steel Foundry Co., Inc. An arbitrator for the Commission denied compensation. The Commission, after hearing additional evidence, affirmed and the circuit court confirmed this decision. Claimant appeals. At the hearing before the arbitrator, claimant testified on direct examination as follows. On April 16, 1971, while working in respondent's foundry, he noticed that the dust and smoke were bothering him. Several days later he was coughing hard and had blood in his sputum. He told this to the foreman, who convinced him to work until the end of his shift. He then went to the Billings Hospital emergency room, where he got some shots and fluid. After leaving, he felt worse and was admitted to Louise Burg Hospital, where he spent 18 days in the intensive-care unit under the care of Dr. Chong Paik. He has not returned to work since. He asked the plant superintendent for part-time work in a cleaner environment, but was told he could not work there any more. Claimant testified further that prior to April 1971 he had worked at the foundry for 17 years as a floor molder, with occasional assignments in the core room. As a molder, his duties were to mix various ingredients into a sand used to line molds for molten steel, then shovel the mixture into a pattern and ram it into place with an air hammer. The mixture he made consisted of silica sand, wood, flour, comflour, binder, silica, molasses and water. His work area was always smoky and dusty. There were open coke fires, and when molten steel was poured into the molds, sometimes only six feet away from claimant, smoke and steam would rise from the molds. Claimant also testified that in 1962 or 1963 he experienced pains in his chest and dizziness and spit up blood. He was admitted to Louise Burg Hospital and was absent from work for 47 weeks. In January 1971 he went to Billings Hospital, after which he missed three or four months of work, and he was hospitalized in November 1971, January 1972, and November 1972. He now weighs 105 pounds; when he was hired at the foundry he weighed 145 pounds. He had no breathing problems when hired; he now has chest pains, cough, dizziness and weakness. He has difficulty climbing stairs, carrying anything or breathing in a supine position. On cross-examination, claimant testified that at Louise Burg Hospital in 1962 or 1963 his condition was diagnosed as bronchiectasis. Later the company doctor also diagnosed bronchiectasis, and the doctors at Billings Hospital made the same diagnosis. The doctors also told him several times over these years that he had pneumonia. He testified that he was smoking when he was hired and that he smoked one pack and two packs a day at different periods up to 1971. Claimant introduced voluminous medical records from Louise Burg Hospital going back to 1963 and from Billings Hospital from 1971. The records establish that claimant was repeatedly hospitalized, tested and treated for lung complaints, and that over the years his condition was repeatedly diagnosed as bronchiectasis and that it was more than once diagnosed as pneumonia. The records contain numerous personal histories given by claimant, indicating, among other things, that he had pneumonia in 1953, 1964 and 1965, and that he smoked two packs of cigarettes a day for 30 years. Dr. Abel Froman testified on claimant's behalf at the hearing before the arbitrator. He examined claimant in June 1972. His clinical examination revealed coughing, wheezing and shortness of breath which he felt were chronic. He took chest X rays that showed infiltration, fibrosis and scarring of the lungs. He noted that such infiltration and fibrosis can be produced by the inhalation of silica, but that an occupational history is necessary for such a diagnosis. On the basis of a hypothetical question incorporating claimant's testimony, Dr. Froman gave the opinion that claimant was suffering from silicosis induced by his working conditions. Respondent introduced the report of Dr. Harold Steinberg dated March 16, 1972. Dr. Steinberg noted claimant's occupational history, his medical history of bronchiectasis and pneumonia and his smoking. The clinical examination revealed shortness of breath and crackling rales. Dr. Steinberg took X rays that showed changes in the lungs indicative of emphysema, but no discrete nodulation or increased linear fibrosis, such as one would see with silicosis. Based on the clinical history of repeated bronchial and pulmonary infections and the long period of heavy smoking, Dr. Steinberg concluded that claimant had bronchiectasis and emphysema; he found the X rays consistent with this diagnosis, and concluded that there was no causal connection between the disease and claimant's occupation. The arbitrator denied compensation, finding that "Petitioner failed to prove that he was exposed to the hazards of an Occupational Disease as defined in the [Workmen's Occupational Diseases] Act." Claimant appealed to the Commission, contending that "the Arbitrator erred in denying compensation." At the hearing on review, claimant offered additional hospital records, dating from 1974 and 1975, and called an additional witness, Dr. George W. Holmes. Dr. Holmes examined claimant in May and June of 1975. Clinical examination revealed pulmonary fibrosis and pulmonary emphysema and an electrocardiogram revealed P waves suggestive of pulmonary disease. Dr. Holmes stated that the etiology of the disease would depend on claimant's history. When given a hypothetical question incorporating claimant's occupational history, Dr. Holmes gave his opinion that the disease was secondary to claimant's exposure to silica, gases, dust and smoke at his job. On cross-examination, Dr. Holmes agreed that smoking, pneumonia and bronchiectasis, as well as occupational conditions, caused the pulmonary fibrosis. As earlier indicated, the Commission affirmed the decision of the arbitrator denying compensation. In the circuit court, counsel for claimant argued the issue was not the correctness of the Commission's action denying compensation, but whether the finding of the arbitrator that claimant had not proved exposure to the hazards of an occupational disease was error. Counsel urged that if this finding was against the manifest weight of the evidence, the court must reverse the Commission's decision. The court clearly agreed that the finding of no exposure was incorrect but noted that aggravation of an ordinary disease of life by occupational conditions was not compensable under the Workmen's Occupational Diseases Act until its amendment effective in 1975. (Ill. Rev. Stat. 1975, ch. 48, par. 172.36(2)(d).) The court found that claimant's condition was traceable to pneumonia and bronchiectasis aggravated by exposure to industrial hazards, and concluded that, under the statute in effect in 1971, the Commission's decision was not contrary to the manifest weight of the evidence. Claimant argues here, also, that the sole issue is the correctness of the arbitrator's finding of no exposure, urging that, if that finding is against the manifest weight of the evidence, the Commission's decision denying compensation must be reversed. We do not agree. The jurisdiction of the Commission to review the evidence taken before the arbitrator and to consider any further evidence properly presented to it is original as opposed to appellate jurisdiction. Such a review is neither a trial de novo nor simply a review of the record, but is sui generis. (Meade v. Industrial Com. (1971), 48 Ill.2d 215, 220-21.) The Commission is not bound by the arbitrator's findings; it must consider all evidence presented to it and to the arbitrator in reaching a decision. (Leason v. Industrial Com. (1973), 55 Ill.2d 486, 493-94. See also Master Leakfinding Co. v. Industrial Com. (1977), 67 Ill.2d 517.) Assuming that the arbitrator's finding of no exposure was error, therefore, we cannot assume that the Commission's affirmance of his decision was bottomed on this erroneous finding. The issue before the Commission was, in claimant's own words, whether "[t]he Arbitrator erred in denying compensation." The Commission considered the record, heard additional testimony, and concluded that the arbitrator had not erred in denying compensation. If claimant wished the Commission to make a special finding on the correctness of the arbitrator's finding of no exposure, he could have submitted such a request in writing. (Ill. Rev. Stat. 1971, ch. 48, par. 172.54(e).) The Commission was not required to make such a special finding, however (Ill. Rev. Stat. 1971, ch. 48, par. 172.54(e)), and having failed to request one, claimant cannot now complain of its absence. Furthermore, under section 19(f)(1) of the Workmen's Occupational Diseases Act (Ill. Rev. Stat. 1971, ch. 48, par. 172.54(f)(1)), the circuit court reviews all questions of law and fact presented by the record. (Interlake Steel Corp. v. Industrial Com. (1975), 60 Ill.2d 255, 261-62.) The trial judge here considered the entire record and heard the arguments of counsel. The judge indicated that he disagreed with the arbitrator's finding of no exposure but that on his view of the record claimant suffered from a non-compensable ordinary disease of life aggravated by occupational conditions. Our review of the record indicates ample support for this conclusion in the conflicting medical testimony. The medical records introduced by claimant, the report of Dr. Steinberg introduced into evidence, and the testimony of Dr. Holmes on cross-examination all support the view that claimant's long history of pneumonia and bronchiectasis caused, at least in part, the pulmonary fibrosis that all the experts diagnosed. We cannot say, therefore, that the trial court erred or that the decision of the Commission was against the manifest weight of the evidence. Claimant argues that the diagnoses and personal histories contained in the medical records admitted into evidence may not be considered by the Commission or a reviewing court. He urges that such matters are hearsay not covered by the statutory hearsay exception in section 16 of the Workmen's Occupational Diseases Act (Ill. Rev. Stat. 1971, ch. 48, par. 172.51), under which the records were admitted. The statute provides: "The records kept by a hospital, certified to as true and correct by the superintendent or other officer in charge, showing the medical and surgical treatment given an injured employee in such hospital, shall be admissible without any further proof as evidence of the medical and surgical matters stated therein, but shall not be conclusive proof of such matters." Claimant contends that only the "nature, scope and degree of medical treatment" come within this provision, but cites no authority for this proposition. We note first that damaging statements in the records made by claimant in giving personal histories, such as those regarding his smoking habits, are hearsay exceptions as admissions against interest. (Cuneo Press Co. v. Industrial Com. (1930), 341 Ill. 569, 572.) We note further that, when the records were introduced at the hearing, counsel for claimant expressly withdrew any section 16 restrictions on their contents and offered them in toto. While the statute contains no indication that diagnoses in hospital records, which would appear to be an integral part of treatment, do not constitute "medical and surgical matters stated therein," we need not decide that question. We hold only that where claimant has not objected at the hearing and indeed has expressly withdrawn any restrictions on the admissibility of the records, he cannot first raise a hearsay objection to their contents in this court. Accordingly, the judgment of the circuit court is affirmed.

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New York - Sunday, 11 December 2016 You are here: Home / Statements / General Assembly Statements / Sixth Committee Statements / 9 October 2013 Statement by H.E. Mr. Gholamhossein Dehghani Ambassador and Deputy Permanent Representative of the Islamic Republic of Iran On behalf of the Non-Aligned Movement on Agenda Item 85: “The rule of law at the national and international levels” New York, 9 October 2013 In the Name of God The Compassionate, The Merciful I have the honour to speak on behalf of the Non-Aligned Movement. The Non-Aligned Movement has been following this item with high interest and believes that respect for the rule of law at the national and international levels is essential to maintaining international peace and security and achieving socioeconomic development. In this regard the Movement held its annual Ministerial Meeting on 27 September 2013 under the theme “the rule of law at the international level” in which high-level dignitaries and representatives of the Member States expressed their unwavering support for the theme and elaborated their views on its various aspects. I would also like to recall the General Assembly High-Level Meeting on “the Rule of Law at the National and International Levels” held on 24 September 2012, and the Declaration adopted therein. Apart from the contents of the document and how balanced it is, convening that meeting was in itself a milestone and an important step in the General Assembly’s discussions of the rule of law aiming to develop a common understanding among Member States. We will spare no efforts to continue the course of discussions in the Sixth Committee, as part of the General Assembly and in cooperation with other partners, to achieve to the elaboration of a commonly shared clear vision and understanding on all components of the rule of law at the national and international levels. The Non-Aligned Movement reiterates its position that it is indispensable to maintain the balance in developing the national and international dimensions of the rule of law. We continue to believe that the rule of law from the international dimension needs greater attention by the Organization. The Charter of the United Nations and the principles enshrined therein provide normative guidance as to the basis of the rule of law at the international levels. In this context the Non-Aligned Movement believes that the following elements are essential in fostering international relations based on the rule of law:– The principle of sovereign equality of States inter alia entails that all States have equal opportunity to participate in law making processes at the international levels; – All States should equally respect and comply with their obligations under treaty as well as customary international law. Also, selective application of international law must be avoided; – The legitimate and legal rights of States under international law must be respected by all; – The principle of the prohibition of the threat or use of force in international relations of States and peaceful settlement of disputes should constitute the cornerstone of the rule of law at the international level. In this regard, it is essential that Member States remain committed to a rule-based regime in the conduct of their respective relations with other Member States. The Non-Aligned Movement fully supports the theme of this year’s debate in the Six Committee as “The rule of law and the peaceful settlement of international disputes” and encourages States to resort to pacific settlement of disputes mechanisms and tools established under international law, including the International Court of Justice and treaty based courts such as International Tribunal for the Law of the Sea, as well as arbitration. We also call upon the General Assembly and the Security Council to utilise the right conferred to them under article 96 of the Charter of the United Nations to request for advisory opinions on any legal question from the International Court of Justice, whenever appropriate. The Non-Aligned Movement reiterates that human rights, the rule of law and democracy are interdependent and mutually reinforcing. All States should fulfil their obligations to promote universal respect for and observance and protection of all human rights and fundamental freedoms for all, in accordance with the Charter of the United Nations, the Universal Declaration of Human Rights and other instruments relating to human rights, and international law. The Non-Aligned Movement stresses that the purposes and principles of the United Nations Charter and the principles of international law are paramount to peace and security, rule of law, economic development and social progress and human rights for all. In this context, the Member States of the United Nations should renew their pledge to uphold, preserve and promote the purposes and principles enshrined in the Charter of the United Nations and international law, with the purpose of further advancing towards the achievement of full respect of international law.The NAM Members remain concerned on the application of unilateral measures, and stress upon their negative impact on the rule of international law as well as on international relations. No State or group of States has the authority to deprive other States of their legal rights for political considerations. At the same time, the Non-Aligned Movement underscores the need for the United Nations Member States to fully respect the functions and powers of each principal organ of the UN, in particular the General Assembly, and to maintain the balance among these organs within their respective Charter-based functions and powers. The Non-Aligned Movement underlines that close cooperation and coordination among all principal organs of the United Nations is highly indispensable in order to enable the Organization to remain relevant and capable of meeting existing, new and emerging threats and challenges. Nonetheless, the Movement reiterates its concern over the continuing encroachment by the Security Council on the functions and powers of the General Assembly and the Economic and Social Council by taking up issues which fall within the competence of the latter organs. The Security Council should fully comply with the international law and the United Nations Charter. The General Assembly must play a leading role in promoting and coordinating the efforts towards strengthening the rule of law. However, the international community must not replace the national authorities in the task of establishing or strengthening the rule of law at the national level, but only to provide them with the necessary support at their request. The Movement recognizes the importance of national ownership in rule of law activities and underlines the importance of strengthening national capacities of Member States in the domestic implementation of their respective international obligations, including through enhanced technical assistance and capacity-building. The Movement reiterates the need for those activities to be undertaken at the request of interested recipient Governments, strictly within the respective mandates of the United Nations funds and programmes. It is also necessary to take into account the customs and the national political and socioeconomic realities to prevent imposition of pre-established models upon Member States that would hinder the resolution of existing problems in each country. Regarding the Rule of Law Unit, the Movement reiterates that appropriate mechanisms should be established for Member States to stay abreast of the Unit’s work as well as to ensure regular interaction between the latter and the General Assembly. There is no agreed definition of rule of law. This fact should be taken into account in preparing reports, and at the time of collecting, classifying, and evaluating the quality of data on issues which are directly or indirectly related to rule of law. The data gathering activities of UN bodies must not lead to a unilateral formulation of rule of law indicators and ranking of countries in any manner. Those indicators of rule of law are not acceptable which have not been agreed upon by Member States in an open and transparent discussion and consultation on this issue. The Non-Aligned Movement is cognizant of the importance of rule of law and accountability at the United Nations. The Movement considers the system of administration of justice in the United Nations as an important mechanism. The Movement also supports initiatives aimed at holding the UN personnel accountable for any misconduct they might commit while serving as the UN official or expert on missions. The Non-Aligned Movement condemns any attempt to destabilize the democratic and constitutional order in any NAM Member State. The Non-Aligned Movement reiterates its position welcoming the General Assembly’s adoption of resolution 67/19 on 29 November 2012, which, inter alia, accorded to Palestine the status of non-member observer State in the United Nations, reflecting the international community’s longstanding, principled support for the inalienable rights of the Palestinian people, including to self-determination, independence, and for the two-State solution, based on the pre-1967 borders in accordance with international law, including relevant United Nations resolutions. The Movement reaffirms the significance of this political and legal achievement for the Palestinian people and the Government of the State of Palestine, and also reaffirms support for the State of Palestine and to ensure its rightful place in the community of nations including by the achievement of admission to membership in the United Nations, in fullfilment of the application for full membership submitted by President Mahmoud Abbas on 23 September 2011, which remains pending before the Security Council. The movement while underlining the importance of freedom of opinion and expression under article 19 of the Universal Declaration of Human Rights, emphasizes that in exercising such freedom, morality, public order and the rights and freedoms of others must be recognized and respected, as apparent under article 29 of the Declaration. As freedom of expression is not absolute, its exercise should be carried with responsibilities in accordance with the relevant international human rights law and instruments. I thank you.

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Quality Control at the Second Circuit: 38 Years of Willfulness Jurisprudence Thrown Out in Kaiser? GUEST BLOGGER-SOLOMON L. WISENBERG Former U.S. FoodService ("USF") purchasing and marketing chief Mark Kaiser's convictions on charges of conspiracy and securities fraud were reversed on Thursday, and the case was remanded for a new trial. The Second Circuit's opinion is here. The reversal was based on Judge Griesa's faulty charge on conscious avoidance which was held to constitute plain error. Judge Griesa's conscious avoidance jury instruction did not contain two elements that the Second Circuit has repeatedly stated are necessary: "that knowledge of the existence of a particular fact is established (1) if a person is aware of a high probability of its existence, (2) unless he actually believes that it does not exist." When Judge Griesa suggested sua sponte that a conscious avoidance charge was appropriate, the government reminded him that the two elements must be included, but they did not make their way into the final instruction. Although the defense did not object to the conscious avoidance charge in its final form, the law is so settled on this point that the Second Circuit had little difficulty finding plain error. Failure to include these two limiting elements in a conscious avoidance charge is a longstanding pet peeve of the Second Circuit. Kaiser also complained that Judge Griesa's instruction on willfulness did not inform the jury that willfulness required knowledge of illegality. Under 15 U.S.C. Section 78ff(a), a/k/a Section 32(a) of the Exchange Act, "[a]ny person who willfully violates any provision of this chapter...or any rule or regulation thereunder the violation of which is made unlawful or the observance of which is required under the terms of this chapter, or any person who willfully and knowingly makes, or causes to be made, any statement in any application, report, or document required to be filed under this chapter or any rule or regulation thereunder...which statement was false or misleading with respect to any material fact, shall upon conviction be fined not more than $5,000,000, or imprisoned not more than 20 years, or both." A long line of Second Circuit precedent, going back at least to United States v. Dixon and reconfirmed in United States v. Cassese, has established that willfulness in the context of criminal Exchange Act prosecutions requires the government to prove a defendant's awareness of the general unlawfulness of his conduct under the securities laws. To paraphrase Senator McCarthy, virtually every schoolboy knows this, and the standard jury instruction to this effect is included in Judge Sand's widely used treatise, Modern Federal Jury Instructions-Criminal. The government does not have to prove the defendant's knowledge of the particular Exchange Act provision or SEC regulation or rule that he is charged with violating. (This would be inconsistent with Section 32(a)'s language that "no person shall be subject to imprisonment under this section for the violation of any rule or regulation if he proves that he had no knowledge of such rule or regulation." If a defendant can be convicted, although not imprisoned, under Section 32(a), even if he had no knowledge of the specific SEC rule he was violating, it stands to reason that the willfulness required to convict under the statute does not encompass knowledge of these same specific rules and regulations.) The standard Second Circuit Exchange Act criminal willfulness instruction sets a high scienter requirement for the government and can literally make the difference between a verdict of guilty or not guilty. The Kaiser Court examined Judge Griesa's willfulness instruction under plain error analysis. Although both the government and the defense submitted the standard Second Circuit charge requiring the government to prove Kaiser's knowledge that his conduct was illegal, Judge Griesa "did not give the proposed instructions, and did not rule on the proposed instructions before giving the charge, calling the practice 'a waste of time.'" In other words, Judge Griesa appeared to disregard the clear mandate of Federal Rule of Criminal Procedure 30(b). But neither party objected to the final charge, thereby bringing plain error review into play. It is hard to read the Court's opinion on the willfulness issue as anything other than a fundamental misinterpretation of Second Circuit precedent in this area, complete with importation of contrary precedent from other circuits. (I will have more to say on the specifics of the opinion in a future post.) The really unfortunate thing about this decision is that it is unlikely to be taken up and reconsidered en banc. Why? The defendant already has his new trial. The government now has a ruling that significantly lessens its burden of proof in future criminal Exchange Act prosecutions. (slw) P.S. - This case, reversing the conviction, was handled by Dan Brown of the law firm of Murphy & McGonigle. See also here. As noted by a comment to the blog - the case was argued, on behalf of Mr. Kaiser, by Alexandra A.E. Shapiro of Macht, Shapiro, Arato & Isserles LLP. http://lawprofessors.typepad.com/whitecollarcrime_blog/2010/07/quality-control-at-the-second-circuit-38-years-of-willfulness-jurisprudence-thrown-out-in-kaiser.html Current Affairs, Fraud, Judicial Opinions, News, Prosecutions, SEC, Securities | Permalink http://www.typepad.com/services/trackback/6a00d8341bfae553ef0133f2091497970b Listed below are links to weblogs that reference Quality Control at the Second Circuit: 38 Years of Willfulness Jurisprudence Thrown Out in Kaiser?: FYI, Alexandra A.E. Shapiro of Macht, Shapiro, Arato & Isserles LLP argued the appeal on behalf of Mr. Kaiser. Ms. Shapiro also argued the Cassese appeal. Posted by: Jonathan Bach | Jul 4, 2010 1:01:45 PM

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| COMMONWEALTH v. FLOWERS (10/28/75) COMMONWEALTH v. FLOWERS (10/28/75) COMMONWEALTHv.FLOWERS, APPELLANT Appeal from judgment of sentence of Court of Common Pleas of Luzerne County, No. 374 of 1973, in case of Commonwealth of Pennsylvania v. Donald Flowers. James F. Geddes, Jr., for appellant. John J. Gill, with him Jerome L. Cohen, First Assistant District Attorney, and Patrick J. Toole, Jr., District Attorney, for Commonwealth, appellee. Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Watkins, P. J. Dissenting Opinion by Spaeth, J. Cercone, J., joins in this opinion. Author: Watkins [ 236 Pa. Super. Page 591]This is an appeal by the defendant-appellant, Donald Flowers, from the judgment of sentence of the Court of Common Pleas of Luzerne County, Criminal Division, after conviction of being an accessory before the fact concerning the sale of marijuana to a narcotics undercover agent after trial by a Judge sitting without a jury. The defendant was sentenced to a term of imprisonment of 6 to 24 months. On October 6, 1972 two agents of the Pennsylvania Department of Health, Bureau of Drug Control, were conducting undercover narcotics operations in the City of Wilkes-Barre, Pennsylvania. One of the agents, Norman Lepere, approached the defendant and asked if the defendant was "holding anything" which in drug parlance means whether he had any drugs in his possession. The defendant responded negatively. A few minutes after the agent's initial solicitation, a third party, George Shiner, approached the defendant and a female acquaintance of his and asked whether either of them wished to purchase drugs. The agents were standing a short distance from the defendant at this time on a busy street in the center of the city and did not overhear any part of the conversation. After the conversation with Shiner, the appellant approached the agent and indicated [ 236 Pa. Super. Page 592] to him that Shiner had some "grass". The entire group including the defendant, his female friend, her child, Shiner, and the two agents then proceeded to Shiner's residence, a mobile home in a trailer park. At Shiner's home another person, John Dustin, appeared on the scene bringing the narcotics with him. The marijuana was passed from Dustin, to Shiner, to the agent and $200.00 was passed from the agent, to Shiner, then to Dustin, whereupon Dustin left the premises. The appellant was present throughout this transaction but did not handle the marijuana nor the money. The agents could not remember any further conversation with appellant about drugs other than his initial introduction of them to Shiner. The court then found the defendant guilty of being an accessory before the fact to the sale of marijuana. Under the old Crimes Code of Pennsylvania in effect at the time of this incident of which defendant was convicted, every accessory before the fact to any felony could be punished as if he was the principal. 1939, June 24, P.L. 872, § 1105, 1943, May 21, P.L. 306, § 1, 18 P.S. § 5105. The defendant was charged, tried and convicted of being an accessory before the fact. Defendant cites the case of Commonwealth v. Simione, 447 Pa. 473, 291 A.2d 764 (1972) for the proposition that the facts adduced at trial by the Commonwealth were insufficient to sustain his conviction. In Simione, supra, the Supreme Court held that a defendant who was persuaded by the buyer of a prohibited substance, who was an undercover agent, to arrange the deal through a third party, and who acted as an intermediary in the deal, but who did not receive any proceeds of the sale and was not an agent of the seller could not be convicted of "selling" the proscribed substance. Unlike the situation in Simione the defendant in this case was not charged with selling the proscribed substance but was charged with being an accessory before the fact who [ 236 Pa. Super. Page 593] aided and abetted the sale. (Emphasis added). In Simione the court specifically directed itself to the charge of selling since a bill of particulars provided to the defendant by the district attorney specified that as the charge and since the lower court's charge to the jury unmistakably set forth the question of whether the defendant sold the drug as the sole issue for the jury's consideration. (Emphasis added). These factors played an important part in the Supreme Court's opinion in that case. This is also true of United States v. Moses, 220 F. 2d 166 (3d Cir. 1955). However, in the instant case the defendant was not charged with selling but with being an accessory to the sale. Therefore we do not feel that the ruling in Simione is determinative of the issue before us in this case. Our sole issue is whether the defendant "aided, abetted or counseled" the sale of the prohibited substance. In such case, the test is not the intention or willingness of the parties actually engaged in the commission of the offense, but rather what the one who is charged with being an accessory before the fact did in relation to the commission of the offense. Commonwealth v. Mourar, 167 Pa. Superior Ct. 276, 74 A.2d 732 (1950). We find that the defendant did "aid, abet and counsel" the commission of the crime, i.e., the sale of the marijuana. It was the officer's testimony that it was the appellant who set up the sale of the marijuana, between Shiner and the officer. Without appellant's actions the sale of the drug would not have been accomplished since it was he who knew that the officer desired to purchase the drugs and it was he who knew that Shiner had such a product for sale. It is not appellant's mere presence at the scene which constitutes his culpability but his active participation in setting up the sale and helping it proceed to fruition which constitutes his guilt. We reaffirm the principle that mere presence at the scene of a crime does not constitute guilt of the crime. A passive bystander who happens to come on an illegal [ 236 Pa. Super. Page 594] activity but does not participate in it commits no crime. Commonwealth v. Jones, 213 Pa. Superior Ct. 504, 247 A.2d 624 (1968). However, it is clear from the testimony that the defendant in our case was no mere bystander but that he actively participated in setting up the illegal sale and as such was an accessory before the fact. We also find that the appellant was not entrapped into committing the crime. The officer merely asked defendant if he "was holding" and when the defendant responded negatively the officer walked away from him. He did not badger nor harass the defendant but merely let it be known that he was interested in purchasing drugs. The defendant did the rest. Under these circumstances we can find no improper police conduct amounting to entrapment. See, Commonwealth v. Conway, 196 Pa. Superior Ct. 97, 173 A.2d 776 (1961), where at page 100 this Court cited Sorrells v. United States, 287 U.S. 435, 441, 53 S. Ct. 210, 212 (1953) as follows: "It is well settled that the fact that officers or employees of the Government merely afford opportunities or facilities for the commission of the offense does not defeat the prosecution. Artifice and stratagem may be employed to catch those engaged in criminal enterprises . . . A different question is presented when the criminal design originates with the officials of the Government, and they implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order that they may prosecute." Judgment of sentence affirmed. Dissenting Opinion by Spaeth, J.: In deciding whether appellant was guilty as an accessory before the fact, both the lower court and the majority of this court have applied a "but -- for" test. Thus the lower court said: "We ask whether without [appellant's] introduction of Shiner to the undercover [ 236 Pa. Super. Page 595] agents a crime would have been committed. The obvious answer to this is in the negative." And this court says: "Without appellant's actions the sale of the drug would not have been accomplished since it was he who knew that the officer desired to purchase the drugs and it was he who knew that Shiner had such a product for sale." It is respectfully submitted that this is not the way to decide the case. The test to be applied is not one of causation but of agency, or partnership. An accessory before the fact is one who aids or abets in the perpetration of a felony. Commonwealth v. Leach, 455 Pa. 448, 317 A.2d 293 (1974); Commonwealth v. Finkelstein, 191 Pa. Superior Ct. 328, 156 A.2d 888 (1959). To aid or abet in the commission of a crime, one must be an "active partner in the intent to commit it." Commonwealth v. Leach, supra at 451, 317 A.2d at 295. Commonwealth v. Strantz, 328 Pa. 33, 40, 195 A. 75 (1937). A "very slight and tenuous connection with the crime" is insufficient. Commonwealth v. Darnell, 179 Pa. Superior Ct. 461, 463, 116 A.2d 310, 311 (1955). In considering whether the evidence was sufficient to prove that appellant was "an active partner" of Shiner's, the most helpful case that I have found is United States v. Moses, 220 F. 2d 166 (3d Cir. 1955). There the defendant was convicted as a seller of narcotics under a federal statute providing that one who "aids, abets, counsels, commands, induces, or procures" the commission of an offense against the United States is guilty as a principal. The facts were virtually identical to the facts here, as appears from Judge Hastie's statement of the case: "Appellant, a single woman 26 years of age, is a drug addict. Two undercover federal narcotic agents had become unsuspected members of the wretched circle of addicts and their familiars in which appellant moved. On the afternoon in question these agents came uninvited to the apartment where appellant [ 236 Pa. Super. Page 596] lived with her parents. They told her they wished to purchase some drugs and inquired whether she knew where such could be obtained. She replied that she did not have any, that one Cooper who was her supplier would be over in about a half hour and that she would be able to arrange for the agents to get some drugs from him, but that they might also be able to obtain drugs from another supplier named Mack. After waiting a while the agents asked her to call Mack because they were not sure whether Cooper would come or not. Appellant called Mack's home but was not able to reach him. As the agents were about to leave Cooper arrived. Appellant introduced the agents to Cooper and told him that they wished to purchase drugs. Cooper inquired of her whether they were all right and, when she replied in the affirmative, asked how she knew. Her answer was that she had seen them 'over on the avenue' on other occasions. The agents then told Cooper the amount and type of drugs they desired and discussed the price with him. Appellant heard the conversation but took no part in it. The agents and Cooper left the house and separated. Some hours later that evening they reassembled at three different times and places. The money was paid at the second meeting and the drugs were delivered at the third meeting. Appellant was not present at any of these meetings which occurred at places other than her home. "There is no evidence that appellant's relationship to Cooper's illicit business was other than that of a customer. On the day in question she merely introduced the prospective buyers to Cooper and vouched for them, all at the buyers' request, with the result that the principals accomplished a sale some hours later. On these facts the district court, sitting without a jury, found the defendant guilty as charged." Id. at 167-68. [ 236 Pa. Super. Page 597]In analyzing the legal significance of these facts, the court collected various authorities to the effect that accessories before the fact must be "'confederates' or 'intentional participants in a common design with a principal actor.'" Id. at 169. ". . . [E]mphasis on those facts which show collaboration and association is characteristic of judicial analysis in those cases where convictions of aiding and abetting have been sustained." Id. (collecting cases). (This statement of the law, it will be observed, is in accord with the decisions of our Supreme Court and of this court, cited above.) The court then held that there was an "absence of any showing of collaboration or association," and therefore reversed the conviction. The court explained this holding as follows: "The government has chosen to indict Marie Moses for her connection with the crime of selling rather than for any connection with buying. The conviction must stand, if at all, on her relation to the seller and his illicit enterprise. Any relation to the buyer actually militates against conviction of the charged offense of criminal complicity in selling. "The undisputed facts show the appellant acting solely at the behest of the prospective buyers and in their interest. At the buyers' request she did two things to facilitate their purchase. She introduced them to the seller and she vouched for their bona fides, if purchasers of contraband drugs can be so characterized. That is all that was proved. There was nothing to show that she was associated in any way with the enterprise of the seller or that she had any personal or financial interest in bringing trade to him. Although appellant's conduct was prefatory to the sale, it was not collaborative with the seller. For this reason the conviction cannot be sustained." Id. at 168. I find no distinction between Moses and this case. There, as here, "[t]he government has chosen to indict [ 236 Pa. Super. Page 598]. . . for [the defendant's] connection with the crime of selling rather than for any connection with buying." However, there, as here, "[t]here was nothing to show that [the defendant] was associated in any way with the enterprise of the seller . . . ." The majority states that "[t]he entire group including the defendant, his female friend, her child, Shiner, and the two agents then proceeded to Shiner's residence . . . ." They proceeded, however, in the agents' car; and since Shiner was along, presumably he led the way to his residence; there is nothing to suggest that appellant did more than go along, as did his female friend and her child. In my judgment, this is not the "partnership," or "collaboration," or "association," that must be shown to sustain a charge that the defendant acted as an accessory before the fact.

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Toobin: 'This Law Looks Like It's Going To Be Struck Down' ByIgor BobicPublishedMarch 27, 2012, 12:17 PM EDT CNN Legal Analyst Jeffrey Toobin, following Supreme Court arguments on President Obama's health care law, said on CNN that based on what he heard inside the Court, things didn't look good for proponents of the law. "This was a train wreck for the Obama administration," he said. "This law looks like it's going to be struck down. I'm telling you, all of the predictions including mine that the justices would not have a problem with this law were wrong... if I had to bet today I would bet that this court is going to strike down the individual mandate." Toobin added that he felt that U.S. Solicitor General Donald Verrilli simply wasn't prepared for the conservative justices. "I don't know why he had a bad day," he said. "He is a good lawyer, he was a perfectly fine lawyer in the really sort of tangential argument yesterday. He was not ready for the answers for the conservative justices." Toobin also said he thought Justice Kennedy, the perennial swing vote, was a "lost cause" for supporters of the health care reform law.

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Federal Circuit Oral Arguments Now Available on iTunes One can easily access the audio recordings of oral arguments from the Federal Circuit website. However, for those who prefer to use iTunes, I noticed that recent recordings are available from iTunes at this link for free. “adapted, in its operative position, to _____” In reading Judge Moore’s dissent in Norgren v. ITC, __ F.3d __ (Fed. Cir. 2012) that issued the other day, her comment about the functional language in the claim at issue caught my eye. The claim at issue read: 1. Connecting structure for contiguously connecting together a pair of fluid-flow elements, each fluid flow element including a generally rectangular ported flange so as to define a pair of ported flanges associated with the fluid-flow elements, said connecting structure comprising: a four-sided, generally rectangular clamp adapted, in its operative clamping position, to engage, in parallel relationship with one another, the pair of ported flanges, one of said sides of the clamp being pivotally mounted so that said one side can be pivoted out of said operative clamping position in order to permit reception of said flanges into the clamp and then pivoted back into said operative clamping position, sealing means for establishing fluid-tight communication between the respective ports formed in said flanges, and locking means for releasably locking said one side in said operative clamping position, in which position the clamp urges the flanges towards one another thereby establishing together with said sealing means, said fluid-tight communication between said ports. In discussing the functional language, Judge Moore comments that the functional language is a requirement of the claim that must be treated as a claim limitation: We must look to the precise claim language and be ever vigilant not to strip away patent rights by eliminating claim limitations. This claim requires the clamp to be both “generally rectangular” and “four-sided” in structure. Hence, while something with six sides (like the SMC ported flange pictured above) might be generally rectangular, that does not mean it is “four-sided.” The claim does not require that the flange be four-sided, but it does require that the clamp be “four-sided.” The claim also recites the functional limitation that the clamp must be “adapted, in its operative clamping position, to engage . . . the pair of ported flanges.” Hence the claims require that the clamp is: (1) foursided; (2) generally rectangular; and (3) adapted in its operative position to engage the flanges. These are three distinct requirements, three distinct claim limitations. The ALJ clearly understood this. The majority, however, improperly combines the structural and functional claim limitations to conclude that only the operative portion of the clamp must be four-sided and generally rectangular. (Emphasis added). In view of Judge Moore’s remarks, look for more uniform examination within the PTO of claims that include “adapted to” and other functional language — or not. The Giles S. Rich Papers This might be of interest to those of you with easy access to the Library of Congress. I wonder if Box 599 holds anything of interest for the briefing of CLS v. Alice: [Link]. Richard Taranto Nomination Turns One Year Old Saturday, November 10th, 2012 Richard Taranto was nominated a year ago today for a seat on the US Court of Appeals for the Federal Circuit. Mr. Taranto’s nomination followed the failed nomination of Edward DuMont, who was a nominee between April of 2010 and November 2011. The open seat on the bench for which Mr. Taranto is a nominee has been vacant since Chief Judge Paul Michel’s retirement from the Federal Circuit on May 31, 2010. The nomination of Mr. Taranto fell victim to the Leahy-Thurmond rule earlier this year. With the election now concluded, Mr. Taranto’s nomination should advance to a vote by the full Senate. You can watch the nomination hearing for Mr. Taranto here. Oral Argument of Already v. Nike Wednesday, November 7th, 2012 The Supreme Court of the United States heard oral argument today in the case of Already v. Nike. The question presented is: Whether a federal district court is divested of Article III jurisdiction over a party’s challenge to the validity of a federally registered trademark if the registrant promises not to assert its mark against the party’s then-existing commercial activities. The transcript of the oral argument is available here: link. The audio of the oral argument is available [here.]. Justice Breyer’s famous comment is available [here]. The briefs are available here: Brief for Petitioner Already, LLC Brief for Respondent Nike, Inc. Reply Brief For Petitioner Brief for Intellectual Property Professors in Support of Petitioners Brief for Public Patent Foundation in Support of Petitioner Brief for the International Trademark Association in Support of Respondent Brief for Levi Strauss & Co. and Volkswagen Group of America, Inc. in Support of Respondent Brief for the United States in Support of Vacatur and Remand Audio of Supreme Court Oral Argument in Kirtsaeng v. John Wiley & Sons Sunday, November 4th, 2012 The Supreme Court of the United States heard oral argument in the case of Kirtsaeng v. John Wiley & Sons the other day. You can listen to the oral argument here. You can read the transcript of the oral argument here. Posted in Supreme Court Oral Arguments, Uncategorized | No Comments » Three Federal Circuit Vacancies Friday, November 2nd, 2012 If I am interpreting the US Courts’ website correctly, Judge William C. Bryson is scheduled to take senior status on January 7th. That means that it is likely that at least three new Federal Circuit judges will be sworn in within the next year. WILLIAM C. BRYSON was appointed by President William J. Clinton in 1994. Prior to his appointment, Judge Bryson was with the United States Department of Justice from 1978 to 1994. During that period, he served as an Assistant to the Solicitor General [1978-79], Chief of the Appellate Section of the Criminal Division [1979-83], Counsel to the Organized Crime and Racketeering Section [1983-86], Deputy Solicitor General [1986-94], Acting Solicitor General [1989 and 1993], and Acting Associate Attorney General [1994]. He was an Associate at the Washington, DC law firm of Miller, Cassidy, Larroca and Lewin from 1975 to 1978. Judge Bryson served as Law Clerk to the Honorable Henry J. Friendly, United States Court of Appeals for the Second Circuit from 1973 to 1974, and as Law Clerk to the Honorable Thurgood Marshall, Supreme Court of the United States, from 1974 to 1975. Judge Bryson received an A.B. from Harvard College in 1969 and a J.D. from the University of Texas School of Law in 1973.

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DONATE Federal Refusal to Enforce Law Allows Foreign Fishing Companies to Use Harmful Methods Bycaught loggerhead turtle, 1969 (photo: Bob Williams-NOAA) Despite a 40-year-old federal law meant to protect them, every year more than 650,000 marine mammals, including dolphins, whales and sea lions, are killed in foreign fisheries after being hooked, entangled or trapped in commercial fishing nets and other gear, according to a new report by the Natural Resources Defense Council (NRDC). When marine mammals are caught in fishing gear, it is called “bycatch,” i.e., they are caught as bystanders to the tuna or other fish that are the fishers’ real goal. Passed by Congress in 1972, the Marine Mammal Protection Act (MMPA) requires that all imported fish be accompanied by proof that the technology used to catch them does not kill or seriously injure marine mammals in excess of U.S. standards. Congress intended to protect dolphins and whales, American consumers concerned about them, and U.S. fishers’ whose costs are higher because they have to use mammal-safe technology. But according to the NRDC, that mandate has been “collecting dust for more than 40 years,” because it “has never been enforced by the federal government.” The National Marine Fisheries Service (NMFS), which is supposed to enforce the MMPA, admitted as much in its October 2012 Five-Year Plan, which said that as “an initial step” to protect marine mammals, “NMFS will identify the nations that export fish and fish products to the United States from fisheries that have bycatch of marine mammals.” Warning that “bycatch is pushing many populations to the brink of extinction,” including “the New Zealand sea lion, Mediterranean sperm whale, vaquita, and J-stock minke whale,” the report urges the federal government to take specific steps to protect marine mammals in foreign fisheries, especially by enforcing the MMPA. First, NRDC recognizes that regulators must promulgate a definition of “U.S. standards” for mammal protection that is specific enough to hold foreign exporters accountable for their bycatch. Until such a standard exists, there is literally nothing for the NMFS to enforce. Second, NRDC recommends that NMFS enforce the law while keeping in mind international trade obligations, mainly by “treat[ing] all exporters equally and…allow[ing] for flexibility in the means by which exporters meet U.S. bycatch standards.” -Matt Bewig Net Loss: The Killing of Marine Mammals in Foreign Fisheries (by Zak Smith, Margaretmary Gilroy et al., Natural Resources Defense Council) Did you Know Buying American Seafood Could Save a Whale? (Natural Resources Defense Council) Shutdown Ends Food Inspections in U.S., Leaving 90% of U.S. Seafood Imports Unchecked (by Noel Brinkerhoff, AllGov) One-Third of Fish Sold as Food are Mislabeled…and Watch out for Sushi Bars (by David Wallechinsky and Noel Brinkerhoff, AllGov)

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Why YouTube is offering legal support for users threatened with takedowns Latest News Trump team’s 'intrusive' memo alarms DOE climate scientists In a bid to raise awareness about issues of 'fair use,' the site will provide legal aid to four users threatened with takedown notices. By Max Lewontin, Staff writer A picture illustration shows a YouTube logo reflected in a person's eye, in the central Bosnian town of Zenica in June 2014. YouTube said on Thursday that it will begin providing legal support for a handful of videomakers threatened with takedown notices for using copyrighted material, in a bid to raise awareness about fair use issues. Dado Ruvic/Reuters View Caption About video ads of When an online video creator receives a notice instructing them to take down a video because it contains copyrighted material — such as a snippet of a TV show or, until recently, even the song “Happy Birthday” — they often have few options but to comply.Copyright battles can often prove expensive and drag on for years, presenting a challenge for video creators and for video sharing sites, which have often cracked down harshly in a bid to stop the spread of pirated material.Now, YouTube is offering an alternative, announcing on Thursday that it will begin providing “legal support” to a handful of users so they can fight claims from copyright holders. If the copyright-holder sues, the tech giant will assist users by paying up to $1 million in legal fees. Foreign companies that beat Silicon Valley at its own game The site, which is owned by Google, is offering aid to the creators of four videos that it says meet the standard of fair use, an exemption to US copyright law that allows new projects that make use of copyrighted material in a way that goes beyond the copyright holder’s original intent, for example by commenting, parodying, or satirizing it. The company says the move is intended to correct some of the power balance that can be directed against content creators in the wake of the controversial 1998 Digital Millennium Copyright Act, which implemented digital rights management software often used to protect music or downloadable movies from online piracy.“We’re doing this because we recognize that creators can be intimidated by the DMCA’s counter notification process, and the potential for litigation that comes with it,” wrote Fred von Lohmann, Google’s copyright legal director, in a blog post announcing the move.The videos YouTube has selected so far are wide-ranging, including a video game review, a UFO-debunking, a critique of state lawmakers in Ohio by a local pro-choice group, and a comedic commentary on the controversy surrounding former NAACP chapter president Rachel Dolezal.The move is particularly significant as a symbolic "brushback pitch" against copyright holders, says James Grimmelmann, a law professor at the University of Maryland. "It’s a very strong warning that copyright holders should rethink their positions because a major company has said, 'We think this is fair use,' " says Professor Grimmelmann, who focuses on Internet law and intellectual property issues.Providing a legal defense on fair use grounds may also assuage long-running criticism that YouTube's automatic system for responding to takedown notices does not always allow users to contest the decision to remove a video, he adds."Google hasn’t announced any changes to its larger practices, but they’re clearly trying to position themselves as more user friendly," Grimmelmann says. "You could almost read this as an offering, to a group that has had reasons to feel slighted."Constantine Guiliotis – whose YouTube channel “U.F.O Theater,” focuses on debunking U.F.O. sightings by combining clips found online with his own commentary – was one of the users selected for the effort. His videos have been subject to three takedown notices, but after YouTube reviewed them and determined they would meet the definition of fair use, they were reposted, the New York Times reports.“It was very gratifying to know a company cares about fair use and to single out someone like me,” Mr. Guiliotis told the Times.The program is also intended as an educational effort for the site’s users about fair use, including creating a library showing successful examples of using copyrighted material lawfully, Google says.So far, the site is taking a carefully targeted approach to what videos it chooses to defend, noting that the program will support only very small portion of videos that are threatened with takedown notices, and may not extend to some videos that would likely be considered fair use.But Grimmelmann says the site could do more to educate users by closely tailoring its guidelines on appealing a DMCA violation to more closely follow the law. While there has been more awareness about fair use over the past few years, there are some misconceptions among users, such as a belief that posting a disclaimer noting that a video contains copyrighted material makes their own upload fair use."They’re pointing to features that don’t always make a lot of difference, but ignoring that one that does, which is transformativeness," he says.The Electronic Frontier Foundation has also supported the effort, although the group notes that an additional step would be to allow any user to enroll in the program, rather than hand-selecting examples that Google says are fair use."We think this is a solid and unprecedented step forward in protecting fair use on the site," wrote Amul Kalia, EFF's Intake Coordinator, in a blog post. "We commend YouTube for standing up for its users, and we hope the program will inspire other service providers on the web to follow its lead."Despite its initially limited roll-out, the YouTube effort may be most valuable in its ability to appeal to a broad swath of users."There’s a very classic conception of fair use, which is people who need to work with raw materials, such as a book critic," Grimmelmann says. "This is the other extreme. This is about people who are making videos often using their home computers – people who are fans, people who are remixers, people who are making video that is personally important to them, that will never be part of the marketplace." How Google's neural network will improve YouTube With YouTube Red, Google pivots from ads to paid subscriptions (+video) Why Silicon Valley cares so much about who will lead the Library of Congress 40 iPhone tips and tricks everyone should know

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"The team has so many contacts with foreign insurers and so many people with foreign languages that it is miles ahead of others." Chambers and Partners (2014) Gardinia Plaza, Sharm el Sheikh in Egypt 2010 Irwin Mitchell has been approached to act for holidaymakers who travelled to the Gardinia Plaza, Sharm el Sheikh in Egypt in August 2010, some of whom fell ill with unpleasant gastric illness. The holidaymakers have told us that they fell ill with gastric symptoms including vomiting, diarrhoea and stomach cramps. They were aware of other guests who were staying at the hotel at the same time who suffered from similar symptoms. The holidaymakers have described worrying examples of very poor food hygiene standards in the hotel. Food was often cold, and raw meat was served to guests, including chicken and beef. The hotel was dirty and staff were rude and unhelpful. There were insects on the food and cockroaches throughout the hotel. The holidaymakers also describe problems with other aspects of the hotel, including not being supplied with a cot for three days and flea infested rooms. Upon the arrival for breakfast on the second day of some of the holidaymakers’ holidays, they were shocked to find that the dining room had been closed, only to be replaced by a filthy marquee tent in the car park. If you have been affected by gastric illness following a stay at this hotel, you may be able to claim compensation for your ruined holiday and also the pain and suffering caused by the illness. For more advice on making a holiday illness claim, contact us on 0800 056 0066 or complete our enquiry form and we will call you back. « Back "We were very happy with the outcome of our case, especially as we were initially offered nothing from the Tour Operator. Irwin Mitchell were very professional throughout and we are very happy with the outcome." Chris and Michael, Worksop Call us on

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News Church professor cleared of indecency charge Professor Donald Macleod, a leading churchman in the Free Church of Scotland was yesterday cleared of one of six charges of indecent assault.Professor Macleod, who teaches systematic theology at the Free Church College in Edinburgh, denies six charges of indecent assault involving five women between 1985 and 1992. His acquittal on one charge followed a legal dispute over the date when he is supposed to have kissed a receptionist at the Free Church College. An objection was earlier raised by his defence counsel when the woman, now 24, said the alleged incident happened in April 1993. When the Edinburgh Sheriff Court resumed yesterday afternoon Andrew Hardie QC said he was making a motion that no more evidence should be taken from the witness. He said that the charge - the sixth - referred to the incident taking place between 1 March and 31 May 1992. He pointed out that this charge had already been amended by the Crown, who originally said that it took place in 1993. Mr Hardie's motion was challenged by Deput Fiscal Margaret Graham, who asked to be allowed to clarify the correct date with the woman. But Sheriff John Horsburgh QC said he was sustaining the objection. He referred to an earlier legal argument in the case when the defence entered a special plea of alibi after the date that the assault took place was finally pinned down to the end of July 1985. Mr Hardie said that the Crown should have got a precise date from the witness, who alleged Professor Macleod kissed her in his home, when they prepared her for the trial. Mr Horsburgh said that the same situation could arise again if there was some question mark hanging over the timing of the final offence. He said this would not be fair to the accused and he was acquitting him of the final charge. In sustaining the motion to strike one of the six charges, Mr Horsburgh said: "In my view it would be prejudicial to the defence for evidence to be further taken from this witness." He then formally acquitted Professor Macleod of the charge. Earlier yesterday, a fourth woman accused Professor Macleod, 55, of indecent assault. The 25-year-old woman told the court that the alleged incident happened when she went to the professor's office to borrow a book for a university course she was doing on church history. His lawyers have already suggested during the case that the charges are the result of a conspiracy among some members of the church. The court was told the woman went to Professor Macleod's study in the church college in November 1991 after he offered to lend her a book for one of her courses. She was sure he locked his office door before he sat on the arm of the chair she was sitting on, to discuss the book he was giving to her. She felt uncomfortable and got up to leave. "I tried to get away as quickly as I could," she said. "As I was leaving, near the door, he attempted to kiss me and I pulled away." She left immediately afterwards. The woman denied she was part of a conspiracy to discredit the professor, but admitted being a friend of two other women who have made similar complaints against him. Under cross-examination by Mr Hardie, she was asked why it had taken her a year before she reported the alleged incident. She said she had not complained because she was taking university finals the following June and did not want to interrupt her studies, and later her father had become seriously ill. She denied Mr Hardie's allegation that she had not told her parents or other people in the church about what had happened at the time because the incident had not happened. Later, she admitted contributing to a private fund which is said to have been set up by rival leaders of the Free Church to pay for travel expenses from Australia of another of Professor Macleod's alleged victims. Under cross-examination the woman said she had given pounds 50 towards the Dorcas Fund - named after a woman in the New Testament who was raised from the dead by one of the disciples - after seeing a circular asking for contributions to meet the pounds 1,500 costs. More about:

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IP: Why companies need clear policies against giving computer access to non-employees A well-established practice of restricting access can increase the chances of a successful Computer Fraud and Abuse Act claim By James Ware, Mindy L. WareFebruary 19, 2013 In 1986, in recognition of the economic importance of protecting computers from unauthorized access, Congress passed the Computer Fraud and Abuse Act (CFAA). The CFAA imposes criminal liability on outsiders who access computers to steal information or to disrupt or destroy computer functionality. In 1994, the CFAA was amended to give computer owners the right to bring a civil action, which requires proof that a company has policies and practices that restrict access. In general, there are three types of unauthorized access of concern to companies: A non-employee (a hacker) may trespass into the system. An employee may access a restricted zone or use information from a permissible zone in an impermissible manner, known as a “user exceeding authorization.” An unauthorized user may give access to an authorized user, known as a “permissive intrusion.” Although a clear company policy restricting access is important with respect to each of these, it is especially significant with respect to the third—namely, a case of “permissive intrusion”—insofar as the absence of such a policy might prove fatal to a CFAA claim. Examples of permissive intrusion are all too easy to imagine. For instance, an employee who is traveling may need information that is on the company server, but may be unable to access the server via the Internet from his location. In such a situation, the employee might call his wife and provide her with his password, asking her to log in to his account. Alternatively, a company might provide a network password to a vendor, allowing the vendor to obtain needed specifications. Although these uses seem perfectly innocent, problems could arise if this permissive access can harm the company. In that case, the company would have to prove that the access, though permissive, was not authorized within the meaning of the CFAA. The situation is made all the more confusing because the CFAA does not provide a definition of the phrase “without authorization.” The 9th Circuit has held that “a person uses a computer ‘without authorization’ . . . when the person has not received permission to use the computer for any purpose . . . or when the employer has rescinded permission to access the computer and the defendant uses the computer anyway.” Whether this definition also applies to the third type of unauthorized access—the “permissive intruders”—requires us to consider the law of agency. Generally, an agency relationship exists when one person contracts to act on behalf of another. Thus, when an employee receives access to a computer to further the interests of his employer, the employee is an agent of the employer. The law of agency treats an act of an agent as “unauthorized” if it is beyond the express, implied or apparent authority of the agent. Thus, the company should set forth a clear policy regarding the authority of its employees to give access to company computers. Such a policy should be included in each employee’s employment contract. Then, if an employee gives another person access to company computers in violation or in excess of what company policy allows, that employee would be regarded as acting outside of the scope of his agency. In that case, the element of “unauthorized access” of the CFAA would be satisfied, because access that an employee gives to an intruder outside of the scope of agency would render the authorization invalid under the general law of agency. Although the CFAA and its interpretation pose a number of legal issues, this discussion underscores the importance of one simple rule: Companies should have a clearly stated, consistently enforced policy prohibiting authorized users from giving access to third parties for any reason whatsoever. « Prev James Ware Judge James Ware is a JAMS panelist based in San Francisco and a retired Chief Judge of the Northern District of California. He can... Mindy L. Ware Mindy L. Ware is an attorney and lecturer in the Liberal and Civic Studies Program at Saint Mary’s College of California. Labor and Employment 1642 ip 782 technology 513 transformative leadership 500 hackers 45 cfaa 7 computer fraud and abuse act 4 Join the Conversation

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Relatives win Iraq damages case Relatives of soldiers killed in Iraq secured a victory in the latest round of a compensation fight today when the Court of Appeal said they could pursue damages claims against the Government. MP: Ruling will have 'very big effect' on Defence Ministry James Arbuthnot, the chairman of the House of Commons Defence Committee, said that today's ruling will have a "very big effect" on the Ministry of Defence (MoD). He told BBC Radio 4's The World At One: It's not just that the MoD is now going to owe a duty of care in relation to all the equipment procurement decisions it makes, but also in relation to everything that an officer or a soldier does actually in the course of battle.There will be a duty of care, for which they will have to be trained. I think the MoD had rather relied until now on the idea that if you decide to be a soldier, then you take with that decision the risks that naturally come with it - you put yourself in harm's way with your eyes open. That argument is really going to be much reduced in strength now ... – James Arbuthnot MP

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Tripartite Attorney-Client Relationship Arises when Insurer Hires Law Firm to Prosecute Action on Behalf of its Insured more+ Travis Wall | Hinshaw & Culbertson LLP It is well settled that a tripartite attorney-client relationship arises when an insurer retains counsel to defend an action against its insured. As a consequence, confidential communications between counsel and the insurer or the insured are protected, and both the insurer and the insured are holders of the privilege. The California Court of Appeal for the Fourth Appellate District clarified that a tripartite attorney-client relationship also can exist where the insurer hires a law firm to prosecute an action on behalf of its insured. See Bank of America v. Superior Court of Orange County (Pacific City Bank), 2013 DJDAR 654 (2013). In Pacific City Bank, Fidelity National Financial (Fidelity) was the insurer and Bank of America was the insured under a lender's title policy insuring a deed of trust. Pacific City Bank (PCB) had recorded a deed of trust on the same property and sent a notice of trustee sale. Bank of America tendered the claim to Fidelity, which hired a law firm to institute an action on behalf of its insured, Bank of America, to protect its security interest. In the ensuring litigation, PCB served subpoenas on Fidelity seeking communications between the law firm and Fidelity. Bank of America moved to quash the subpoenas to exclude communications between the law firm and Fidelity on the grounds of privilege. The trial court held that the tripartite attorney-client doctrine did not apply because the law firm was retained to prosecute the underlying action rather than defending litigation. According to the trial court, Fidelity did not have a "favored position" or "sacred role" in the litigation. The Court of Appeal reversed, holding that the trial court erred as a matter of law in making this artificial distinction. The court's holding turned on an analysis of the title insurer's duties to its insured. The court reasoned that a title insurer's obligation to defend a lawsuit and to take other appropriate action, such as prosecuting an action to protect the integrity of an insured's title, are "kindred duties" addressing the "same fundamental concern" and that there is no logical reason why a tripartite relationship should exist in one situation but not the other. The court rejected PCB's arguments that no tripartite relationship arose because there was no formal retainer agreement between the insurer and counsel hired to protect its insured's interest. The mere retention of the law firm was sufficient to establish the tripartite relationship. It also did not matter that Fidelity had reserved rights. The law firm was not acting as Cumis counsel, and, even if it were, the privilege would still apply to all confidential communications among the insurer, insured and law firm except those pertaining to coverage. PCB maintained that Fidelity waived any right to object to the production because it did not bring its own motion to quash the subpoena. The court rejected this argument as well, noting that Bank of America was a holder of the privilege and thus had standing to assert the privilege itself. New York Recognizes Attorney-Client Privilege Regarding Consultations with Firm's General Counsel Colorado Supreme Court Upholds the "Strict Privity Rule" When Interpreting Attorney-Client Relationship Latest PostsTexas Court Declines to Enjoin OSHA's Anti-Retaliation Rules The Lawyers' Lawyer Newsletter - Recent Developments in Risk Management - November 2016 EEOC Issues New Guidance on National Origin Discrimination © Hinshaw & Culbertson LLP | Attorney Advertising Refine your interests. Hinshaw & Culbertson LLP Travis Wall Insureds Tripartite Relationships less- Hinshaw & Culbertson LLP on:

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EU proposal sets sanctions for copyright violations By Paul Meller, IDG News Service EU tackles online copyright law European Parliament rejects patent law proposal Microsoft tars Google with profiting off pirates Companies from across IT face criminal sanctions, including prison time for employees, if their networks, software programs or online services are ever used to carry illegally copied material such as music or film, according to a draft law from the European Commission supported Tuesday by a committee of the European Parliament.The proposed directive switches the onus from end users to the technological conduits, which could include ISPs (Internet service providers), mobile phone operators, instant-messaging services, video- and music-sharing Web sites such as YouTube, as well as open-source software producers.The controversial draft law has sparked an outcry, uniting rivals within the IT industry, ranging from free and open-source software advocates, the Foundation for a Free Information Infrastructure, at one end to a lobbyist for the world's biggest software companies, the Business Software Alliance (BSA), at the other.The clause in the draft law that most worries them is one that criminalizes aiding and abetting or incitement to infringe an intellectual property such as copyright-protected music, software or film. Another major concern across the board is the inclusion of utility models -- in effect short-term, unexamined patents -- within the scope of the law.Patents themselves were included in the original version of the law proposed by the European Commission but the legal affairs committee of the Parliament excluded them from the scope of the law Tuesday."The exclusion of patents is welcome, but we are very disappointed the committee chose to keep the incitement clause," said Francisco Mingorance, European affairs manager at the BSA."This creates a huge legal threat right across the IT industry," said Ante Wessels, an analyst at the FFII. He added that if the draft becomes law "it will hamper software designers' freedom to act in the market.""In a sense it criminalizes innovation," he said. "The aiding and abetting clause is serious. It could sweep within its scope all kinds of online products and services," said Thomas Vinje, a partner in the Brussels office of law firm Clifford Chance. "It is very sensible of the Parliament to exclude patents from the scope of this directive but why then include utility models? It doesn't make sense," Vinje added.Hardware manufacturers also fear being swept up into high-stakes criminal proceedings. Mobile phone maker Nokia Corp. has spoken out against the proposal in the past. Nokia representatives weren't immediately reachable Tuesday for comment after the European Parliament committee vote.While the incitement clause helps rights holders such as record companies and Hollywood film studios pursue the carriers of illegally copied material, it narrows the scope for legal action against individuals who duplicate copyright-protected material.The legal-affairs committee agreed to exclude all intellectual-property infringements by private users for personal use. They went even further by saying that the abuse must be "a deliberate and conscious infringement of the intellectual property right for the purpose of obtaining commercial advantage."On this point the BSA and the FFII diverged. The FFII welcomed the limiting of personal liability, while the BSA said it amounted to "decriminalizing illegal file sharing and software copying," according to Mingorance."This clause effectively says it's OK to make illegal downloads" of music from the Internet," he added.The International Federation of the Phonographic Industry has lobbied for criminal sanctions to be extended to individuals. It wasn't immediately available to comment.Similarly, Microsoft was approached for comment but has yet to respond. Google Inc., owner of YouTube, declined to comment. This story, "EU proposal sets sanctions for copyright violations" was originally published by PCWorld. To comment on this article and other Macworld content, visit our Facebook page or our Twitter feed. Shop Tech Products at Amazon

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Blagojevich impeachment committee may get some wiretap tapes The Illinois House impeachment committee may be getting some of the taped conversations federal investigators made of Gov. Rod Blagojevich as part of their criminal investigation. Doug Finke The Illinois House impeachment committee may be getting some of the taped conversations federal investigators made of Gov. Rod Blagojevich as part of their criminal investigation. In a surprise development, U.S. Attorney Patrick Fitzgerald requested federal court permission to turn over a limited number of recordings to the committee. A hearing on the request is scheduled for Jan. 5. In court papers, Fitzgerald asked to turn over the contents of four calls that “bear on a discrete episode of criminal conduct. ...” The episode deals with Blagojevich discussing getting a campaign contribution from someone who wanted him to sign a bill. The identities of those involved, other than Blagojevich, are not disclosed. Prosecutors said the legislation is believed to be a law giving the horse racing industry a portion of riverboat casino revenue. Blagojevich has since signed the law. Impeachment committee chair Rep. Barbara Flynn Currie, D-Chicago, said the panel’s work will be on hold until it learns if, and when, it might obtain the tapes. “If the judge were to say we will have a briefing schedule in three months’ time, I think probably the committee would decide that we should go back to look at what we already have and make a determination whether that is adequate (to impeach),” Currie said. If the committee gets the tapes quickly, though, they could provide the final evidence to impeach Blagojevich, she said. “If we really do have the governor on tape saying to a lobbyist, ‘If you can get your client to pony up $100,000 or $50,000 or whatever in the next three days, I will sign that bill’... then I think there is no question the governor has offered something governmental for value received, and I think that is clearly illegal,” Currie said. Blagojevich lawyer Ed Genson can try to block release of the material. “I haven’t read the motion. I don’t know,” Genson said when questioned about it. The committee asked Fitzgerald to release the entire volume of recorded material obtained during the investigation, including parts where Blagojevich allegedly tried to sell the vacant U.S. Senate seat formerly held by President-elect Barack Obama. Fitzgerald won’t release that or most other material, saying it would impede his ongoing investigation. Fitzgerald said, though, that the tapes dealing with the horse racing law can be safely released. The impeachment committee met for about three hours Monday, spending most of the day hearing Genson defend Blagojevich. The Chicago attorney called no witnesses. He insisted that nothing heard by the committee so far rises to the level of an impeachable offense. “People are not impeached because they have disagreements with other members of government or because they have a low opinion rating,” Genson said. “It’s not fair to gather up all sorts of dissatisfaction individuals have with the administration and how they run things and say that is comparable to criminal conduct. They have not proved impeachable conduct.” Although federal authorities tape recorded Blagojevich conversations that led to his arrest, Genson insisted again that there is no proof anything came of those conversations. “The fact is, nothing happened,” he said. “It’s just talk, unfortunate talk, talk that shouldn’t have been said, perhaps.” As he has before, Genson complained that the state has no standards for what is impeachable or even the standards of proof that will be used for impeachment. “We are fighting shadows,” Genson said. “We are fighting unnamed people, witnesses who aren’t available, preliminary hearings that haven’t been held.” For the next hour, members of the impeachment committee lashed back, reminding Genson that an impeachment hearing isn’t a criminal court case and that in Illinois, which has no specified standards for impeachment, an impeachable offense is in the eye of a lawmaker. “The only standard in Illinois is ‘cause,’ said Rep. Lou Lang, D-Skokie. “It will be 118 definitions in the House and 59 in the Senate.” Currie said last week that the committee could finish its work during the first week in January. That schedule is in doubt because of the court issues over the tapes. On Monday, she did not offer an new estimate for when things will be completed. Doug Finke can be reached at (217) 788-1527. Like Blago, his lawyer doesn't like Springfield Gov. Rod Blagojevich doesn’t like staying in the Executive Mansion, and his attorney doesn’t like the place, either. Chicagoan Ed Genson stayed at the mansion one night after representing Blagojevich before the House impeachment committee. He wasn’t impressed. “It’s a drafty place,” Genson said after Monday’s impeachment hearings. “I wouldn’t want to live there.” Genson was put up in the Lincoln bedroom, which he found lacking. “You know, it’s the smallest room there,” Genson said. “I was insulted. I mean it, everybody gets these big bedrooms, and I get this 2-by-4 bed. I was actually insulted I had to stay there. I didn’t know it was the Lincoln bedroom until I saw a sign on the wall, either.” Genson only stayed at the mansion one night, in part because he is disabled and finds it difficult to get in and out of places on short notice. Even if the mansion were to his liking, it’s doubtful he’d be happy here. “I don’t like it down here (in Springfield) that much,” Genson said. -- Doug Finke

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Former tavern site subject of pair of hearings | New Hampshire Contact us October 28. 2013 12:57AM Former tavern site subject of pair of hearings DERRY — Two public hearings regarding land where the former Pinkerton Tavern once stood are scheduled next month.The tavern at 13 Manchester Road was demolished two years ago to make way for development as part of the town's Manchester Road expansion project. Since then, the 1.38 acre site has been for sale..Details on the former tavern site will not be available until the public hearings, scheduled for Nov. 5 and Nov. 19 on the third floor of the Municipal Center. Both meetings will start at 7:30 p.m.Councilor Neil Wetherbee said the project has been going well and the sale of the property would benefit the town..."It would be great to get that back on the tax rolls and improve the economic development situation," Wetherbee said Sunday night. "I'm hoping that's what will become of it."Wetherbee said he would also like to see another property in town known as the Difeo site possibly added back to the tax rolls. The property at Central Court, once the site of Difeo Oil, was purchased by the town in 2008 for $225,000...Citing a report by Public Works Director Michael Fowler, Acting Administrator Larry Budreau said earlier this month that plans call for cleaning up the property and cutting down brush. In addition, concrete would be broken up and trucked away...Loam and seed could then possibly be added to the land to turn it into green space, according to the plan.But the work has been slowed by monitoring wells that are on the property. Budreau said earlier this month that the town is working to ensure all of the wells are flagged before a contractor can come in with equipment to begin the operation...Wetherbee said he can understand the need to clear the property and improve it, but is unsure whether spending the money is the best approach."That's something that I would like to see back on the tax rolls," he said...For now, though, he said he will give the project the benefit of the doubt.The property isn't presently for sale. Plans to sell the one-acre site have been delayed because of another possible land deal, Wetherbee said..."It's really kind of a big mess," Wetherbee said. "I really think the council needs to bring it up and discuss it."Wetherbee said he intends to bring up the matter of what to do with the property at the next council meeting, which is scheduled for Tuesday, Nov. 5...The meeting is scheduled to begin at 7:30 p.m. on the third floor of the municipal center...

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Home > Towns bring legal experts to region Towns bring legal experts to region Eldred [1] Two New York towns—Highland and Lumberland—have teamed up to learn how to pursue possible legal protections against the impacts of natural gas extraction and have invited two legal firms specializing on the topic to present information to the public on February 19 at the Eldred Central School. “Gas drilling is a hot topic right now,” said Glen Goldstein, member of the Highland Planning Board and chair of Highland’s new energy and environment committee. “Our job is to get smarter and to report back to the town what we learn. Our first step is to bring in two lawyers with very different opinions, who specialize in this field. We’re not trying to pick a winner, rather, to listen and to learn everything we can. We’ll also be looking at whether any changes need to be made to the town’s master plan as it pertains to this issue.” A public session will be held in the morning with lawyers from the Community Environmental Defense Council and the Community Environmental Legal Defense Fund, followed by a town work session later that day. “We welcome other towns to attend and learn along with us,” added Goldstein. The Town of Highland has also been involved in an effort to improve access to town businesses. “What can change so that businesses can thrive in this county?” asked Sullivan County planning commissioner Luiz Aragon at the Highland town meeting on January 11. It’s a question that Aragon and others are attempting to address with a new signage strategy to promote local business called the Business Wayfinding System. “People must be able to find the businesses,” said Aragon. “We’re not talking about uncontrolled signage, but a system that is uniform, understandable and useful.” A team consisting of the Barryville Chamber of Commerce, Sullivan Renaissance and Highland Renaissance has been working with town resident and designer Dorene Warner to develop the signage. “We did a lot of research to see what other towns have done, with a strong local model at Bethel Center for the Performing Arts,” said Aragon. “The businesses will pay to be on the signs, which will help to maintain them.” Carol Roig of Highland Renaissance added, “Signage kept coming up in earlier visioning sessions, the issue of capturing casual visitors, since the byway is a main artery into the area. If your business is not on the byway, how do people find it?” Roig said the team tackled the design and conceptual challenge to make the signage work without adding visual clutter. “Dorene has come up with a design that is functional and elegant, is in keeping with other design work that’s gone on before and respects the rural character of the town.” Town supervisor Andy Boyar applauded the effort and the board gave conceptual approval to the signage. Boyar summarized the board’s accomplishments of the past year. “We adopted our 2011 budget without fanfare or acrimony and accomplished our mission of keeping taxes level,” he said. Other items included upgrading highway equipment with four major acquisitions, settling a three-year highway contract and more. Boyar also applauded the town for continuing to be “a beacon of light and a good example for all. Democracy is founded upon the principal of debate and the free exchange of ideas. We might not be unanimous on every issue, but we will always be courteous and respectful. Our track record for the past year shows that you can deal with all types of issues, sometimes with strong opinions on either side, and still come up with good answers.” For information on any of the above, contact Boyar at 845/557-8901. Source URL: http://www.riverreporter.com/news/14/2011/01/18/towns-bring-legal-experts-region Links:[1] http://www.riverreporter.com/category/location/eldred [2] http://riverreporter.disqus.com/?url=http%3A%2F%2Fwww.riverreporter.com%2Fnews%2F14%2F2011%2F01%2F18%2Ftowns-bring-legal-experts-region

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Limitation of liability provision enforceable David A. TempleMarch 16, 2011 Defense Trial Counsel of Indiana, Opinions Opinions Dec. 9, 2016 On March 2, 2011, the federal district court in Indianapolis issued a rather innocuous and unassuming opinion in SAMS Hotel Group, LLC v. Environs, Inc. (S.D. Ind. 2011), No. 1:09-CV-00930-TWP-TAB. However, its ramifications may be far-reaching and are surely welcomed by design professionals working on projects in Indiana. The court granted an architectural firm’s motion for partial summary judgment and denied the owner’s motion for partial summary judgment, finding that (1) the owner’s negligence claim is barred by the economic loss doctrine, based on the reasoning articulated by the Indiana Supreme Court in Indianapolis-Marion County Public Library v. Charles Clark & Linard, P.C., 929 N.E.2d 722 (Ind. 2010), and (2) the architectural firm’s liability is contractually limited to the lump-sum fee paid by the owner. It is the latter finding that is most significant, yet it should not be surprising in light of contract law in Indiana. While the court’s decision does not cite to significant case law on this issue, the court found the contractual language at issue to be unambiguous, stating that “[e]ven a person with limited acumen would interpret this contract to mean that Environs could owe SAMS no more than what it was paid if it did not deliver a sound design as promised.” SAMS Hotel Group owned a Homewood Suites Hotel under construction in Fort Wayne which the Allen County building commissioner ordered to be demolished because of its structural instability. SAMS sued Environs Inc., the architectural firm hired to design the hotel and perform certain oversight functions during construction, as well as the steel fabricator and the engineering firm that provided engineering services relating to the steel framing. The parties stipulated to the dismissal of the steel fabricator and the engineering firm leaving Environs Inc. as the sole defendant. The parties’ contract provided: “The Owner agrees that to the fullest extent permitted by law, Environs Architect/Planners Inc.[’s] total liability to the Owner shall not exceed the amount of the total lump sum fee due to negligence, errors, omissions, strict liability, breach of contract or breach of warranty.” SAMS asserted that the provision was unenforceable because it did not unequivocally make clear that Environs’ liability was limited for its own wrongful acts. However, the court rejected SAMS’s argument, finding in part that the provision at issue was a limitation of liability provision, not an exculpatory clause. Moreover, the court found “the limiting language in the contract is unmistakably clear” and that “[t]his is not a situation where an unsuspecting or unknowing party is disadvantaged by a murky provision.” Under Indiana law, absent an ambiguity, Indiana courts give the terms of a contract their plain and ordinary meaning. Indiana Dept. of Transp. v. Shelley & Sands, Inc., 756 N.E.2d 1063, 1069-1070 (Ind. Ct. App. 2001). Furthermore, a “contract is unconscionable if a great disparity in bargaining power exists between the parties which leads the weaker to sign a contract unwillingly or without being aware of its terms.” White River Conservancy Dist. v. Commonwealth Eng., 575 N.E.2d 1011, 1017 (Ind. Ct. App. 1991). The court made it clear that in this situation, it was faced with neither ambiguous terms nor disparate bargaining power between the parties. The court ultimately concluded that “[i]f SAMS wanted greater protection from a negligent design, it could have obtained such protection through different contractual terms or a performance bond.” The court appears to have implicitly rejected any invitation to rewrite the parties’ contract based upon the limitation of liability provision somehow violating public policy. From an outsider’s perspective, the court’s decision is one of the purest forms of applying the four corners’ doctrine, and it serves as a reminder to contracting parties that unambiguous contractual provisions – even if they later seem like a “bad deal” for one of the parties – can and will be enforced.• David A. Temple is a partner at Drewry Simmons Vornehm in Carmel, where he focuses on professional liability, construction, products liability and environmental insurance matters. He is on the board of directors of the Defense Trial Counsel of Indiana and a member and former chair of the Construction Law Section. The opinions expressed in this column are the author’s.

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Bird & BirdNews CentreIntellectual Property in Hong Kong Print Intellectual Property in Hong Kong 17 November 2008 Ai-leen Lim, Ricky Leung This article looks at intellectual property legislative developments and proposed legislative developments in Hong Kong since 2007. TrademarksShadow companiesAn issue which is of increasing concern to brand owners in relation to trademark protection in Hong Kong is the issue of “shadow companies”. Such companies are incorporated in Hong Kong with names which are identical or very similar to existing and established trademarks of other companies. They frequently do not carry on active business in Hong Kong and may pose themselves as representatives of owners of such trademarks when contracting with manufacturers in Mainland China or elsewhere in an attempt to “legitimise” the production of counterfeit products bearing such trademarks.Currently, trademark owners can only obtain court orders to direct a company to change its name in a legal action for trademark infringement or passing off against a shadow company. But the Registrar of Companies (the "Registrar") has only very limited powers in changing company names and he has no authority under the current law to take any enforcement action even if such court order is presented before him. The Hong Kong government announced on April 2, 2008 a series of public consultations on the Companies Ordinance rewrite, a part of which attempts to tackle the problems of “shadow companies”.The proposal of the consultation document is to empower the Registrar to act on a court order that directs a “shadow company” to change its name, and if the “shadow company” does not comply with the court order, then the Registrar may substitute the infringing name with its company registration number.It is also proposed that the Registrar be granted the power to reject registration of any company name which is the same as an infringing name which the Registrar has previously directed a company to change and which is the subject of a court order. However, the legislation is only expected to be passed after 2010.CopyrightThe Copyright (Amendment) Ordinance 2007The new Copyright (Amendment) Ordinance 2007 (the “Amendment Ordinance”) was passed on June 27, 2007 with some aspects of it becoming effective on July 6, 2007 and on April 25, 2008 while other parts are yet to come into operation. The following are some of the highlights of the Amendment Ordinance (the effective date of these highlights is July 6, 2007 unless otherwise stated).1. Dealing in circumvention tools or the provision of circumvention devices constitutes a criminal offence Any person who carries out any of the following activities may be subject to civil and criminal liabilities:Making circumvention devices for sale or hire; Importing or exporting circumvention devices for sale or hire; Dealing in circumvention devices (including selling, letting, exhibiting in public or distributing in the course of trade or business); and Providing a commercial circumvention service which enables customers to circumvent technological measures used to protect copyright works. Any person who commits these offences may be liable to a fine of US$500,000 and to imprisonment for up to four years. They may also be subject to civil claims from copyright owners.This Section came into force on April 25, 2008, and the Hong Kong Customs has since raided merchants operating within computer malls who sold modified game consoles which contained circumvention devices enabling the playing of pirated video games.2. Restrictions on the parallel importation of certain copyrighted works have been relaxedParallel import in the context of the Copyright Ordinance means copies of copyright works which are made with the authorisation of the copyright owner in the place of manufacture and destined for a market outside Hong Kong but are then imported into Hong Kong without consent of the copyright owner in Hong Kong. Under the Amendment Ordinance, importation or possession of parallel-imported copies of copyright work is liability-free, even for use in business, if it does not involve commercial dealing or public playing.3. Provisions on business end-user criminal liabilityThe date when this Section will come into force is not yet designate, although it is understood that the target effective date for this offence has been set for the second half of 2008. It will be an offence, when the relevant Section comes into force, to make copies for distribution or distribute copies of copyright works in newspapers, magazines, periodicals and books, in the course of trade or business without license if:The number of copies made/distributed exceeds the numeric limits (“safe harbour”) as prescribed by the Secretary for Commerce and Economic Development; The acts are done on a regular or frequent basis; and Financial loss is caused to the copyright owner. The scope of this offence covers the distribution of digital copies as well as physical copies.Statutory defences are available where the defendant has taken reasonable and adequate steps to obtain a license but failed to do so because the owner is unknown or he failed to give a timely response or reasonable commercial terms.The Section applies to employees unless the employee commits the offence in the course of employment and in accordance with the instructions given to him by his employer.When a body corporate has infringed the Section, any of its directors or partners or any person in such authority (if there is no such director or partner) will be presumed to have done the same (and be personally liable as well) unless he can raise a reasonable doubt as to whether he authorised the act. It may need to be shown that the body corporate has set aside resources or incurred expenditure for the purpose of obtaining a license or sufficient genuine copies.Any person who commits this offence is liable upon conviction to a fine at level 5 (which is currently set at US$50,000) in respect of each infringing copy and to imprisonment for four years.4. A new rental right for films and comic books has been createdThe unauthorised commercial rental of films, music and comic books will be prohibited and infringement thereof will attract civil liability.The meaning of “rental” extends to “making copies of the work available for on the spot reference use subject to direct or indirect payment” in relation to the rental of comic books. Therefore comic book cafes or any businesses which lend or share comic books for commercial purposes will be liable. Existing stocks of movies and comic books that rental shop operators have acquired before the Section came into force (April 25, 2008) will not be affected.5. Fair dealing and other exemptionsThe scope of fair dealing in relation to educational activities has been extended. Teachers and students are allowed to use or deal with or copy copyrighted works (including those stored in electronic format) for teaching and learning purposes. The audience before whom copyrighted works could be performed or played in the course of educational activities now includes parents, guardians or any other persons directly connected to such activities. To qualify as “fair dealing”, the purpose and character, nature of the work, amount of the portion dealt with in relation to the work as a whole and the effect of the dealing upon the potential market for the value of the work, will be taken into account. If a person is visually impaired or physically unable to manipulate a book or focus or move his eyes, he may make a single accessible copy for his personal use without liability if the master copy is a genuine one and he has made reasonable enquiries to satisfy himself that he cannot access a specially adapted copy (e.g. one in Braille format) at a reasonable commercial price.Public consultation for strengthening copyright protection in the digital environmentIn 2007, the Hong Kong Government conducted a round of public consultations on “copyright protection in the digital environment”, which stated aim was to solicit the publicfs view on whether, and if so how, the existing legislative framework should be revised to provide for more effective copyright protection in the digital environment. On the basis of feedback from the public consultation, as well as drawing upon the relevant experience of jurisdictions overseas such as the United Kingdom, United States, Australia and Singapore, the Government released its preliminary proposals in April 2008 for strengthening copyright protection in the digital environment for further public consultation, which period runs up to August 31, 2008.Set out below is a summary of the key legislative proposals put forth by the Government:1. Introduction of an all-embracing right of communicationThe current Copyright Ordinance prohibits the unauthorised transmission of copyright works through certain specific digital means, including making them available to the public on the Internet, broadcasting, and including copyright works in a cable programme. Civil remedies are available against any person who infringes such rights.The development of digital technology and the convergence of different media have, however, opened up new means for copyright owners to exploit their works. Against this background, copyright owners are concerned that new means of transmission may emerge and the current legal regime may not afford adequate protection to their work in the digital environment.In view of the above, the Government proposes to introduce a right of communication covering all modes of electronic transmission for copyright works, whereby the breach of which would attract civil liability. In addition, related criminal sanctions are also proposed to be introduced against acts of making or initiating unauthorised communication to the public in circumstances where communication is made for the purpose or in the course of business, or otherwise where the communication is made by “streaming” the copyright work to the recipients and the communication is made to such an extent as to affect prejudicially the copyright owners.2. Introduction of an exemption for temporary reproduction by Online Service Providers (OSPs)In the preliminary proposals, the Government seeks to introduce a new copyright exemption for the temporary reproduction of copyright work by OSPs, which is transient or incidental in nature and is technically required for (or enables) the transmission process to function efficiently. This proposed exemption is primarily intended to cover the caching activities undertaken by OSPs, which help save bandwidth and are indispensable for efficient transmission of information on the Internet. Under the proposal, this exemption would be subject to the following qualifications:The proposed exemption is only applicable to communication that is not infringing; The proposed exemption should be subject to any express prohibitions imposed by copyright owners or licences in the form of any commonly available or Intellectual property in Hong Kong adopted measures (i.e. the copyright owners could opt out); and For the exemption to apply, the content as contained in the original version should not be modified during the reproduction process. 3. Providing for additional factors to assist the Court in considering the award of additional damages in lien of statutory damages for copyright infringement actionsUnder the Copyright Ordinance, a copyright owner in an infringement action may seek, among other things, damages to compensate the loss he has suffered, which is subject to proof by the copyright owner that the loss he has suffered and that the infringement in question is the effective cause of the loss. In addition to compensatory damages, the Court may grant additional damages if it considers that it is fair to do so on the facts of the case. In making such an additional award, the Court would take into account all the circumstances of the case, in particular:The flagrancy of the infringement; The benefit accruing to the defendant by reason of the infringement; and The completeness, adequacy and reliability of the defendant’s business accounts and records. In this connection, it is proposed that additional factors be prescribed in the law to assist in the Court’s effective determination on the issue of quantum of additional damages.These factors may include:The conduct of the defendant after the act constituting infringement. For example, attempts to hide or disguise infringement or to take other action prejudicial to the copyright owner; The possible widespread circulation of the infringing copy via digital transmission in the case of Internet piracy; and The need to deter similar infringement of copyright. Concluding remarks“Shadow companies” have proved to be a major problem facing IP owners in Hong Kong, which can often be time-consuming and expensive to tackle within the confines of the existing laws. The legislative solution as currently proposed by the Government is certainly a welcome move. However, the proposals, which form part of the efforts to rewrite the Companies Ordinance, are not expected to be enacted into law before 2010. In the meantime, the Government is encouraged to consider introducing appropriate interim amendments to the Companies Ordinance towards addressing IP ownersf concerns with respect to the evident abuse of the company names registration system.On the other hand, active legislative efforts continue to be seen in bringing Hong Kong’s copyright laws in line with the latest international standards. The Amendment Ordinance introduces provisions which have strengthened copyright protection, whilst affirming users’ need for fair and reasonable use of copyright works. Legislative proposals in relation to digital copyright issues have also been drawn up by the Government in light of the widely perceived need to better protect copyright owners’ interests in the digital environment. Active and constructive participation by IP owners in the public consultation will certainly assist in shaping an adequate and fair copyright protection regime in the digital context within the territory.

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Bernstein, Mosby debate crime fighting successes, failures Debate for Democratic city state's attorney's candidates to air on WBAL-TV June 22 Updated: 9:10 AM EDT Jun 13, 2014 Kai Reed Marilyn Mosby and Gregg Bernstein debate as they vie for the office of the Baltimore City state's attorney. BALTIMORE — The Democratic primary for the Baltimore City state's attorney is becoming one of the most hotly contested races this year. Former prosecutor and community activist Marilyn Mosby is vying for incumbent Gregg Bernstein's job.Mobile users, tap here for videoThe candidates sat down at WBAL-TV this week to talk about the issues, most of which centered on Bernstein touting what he sees as his successes and Mosby highlighting what she sees as Bernstein's failures, particularly when it comes to fighting crime.The debate will air on WBAL-TV 11 on June 22."It's my top priority. It's why I created our major investigations unit, why I moved our office into a community prosecution model in order to combat violent crime, and it's why we've been so successful," Bernstein said."Four years ago, the current administration said they would focus on violent repeat offenders. We're still talking about that, and the reason why is because there has been no focus," Mosby said.Bernstein talked about what he's done well, while Mosby focused on how she said she can do better."When we're talking about these violent repeat offenders, there's absolutely no reason why in 2003 an individual can be convicted of second-degree murder and then in 2014 is able to go out onto the streets and be able to shoot and injure a police officer," Mosby said."We've already been able to convict about 200 of these violent repeat offenders, which I think is really meaningful progress. I think we need to continue that strong collaborative relationship with the Police Department," Bernstein said.At least one political expert said it could be a tight race."No one's going to walk with this," said Towson University political science professor John Bullock.He said from his perspective, Bernstein is the front runner as the incumbent, but Mosby has an opportunity to set herself apart."She has to really fixate on the fact that she sees Bernstein as not being as competent as he could be, that his conviction rate is not what it should be, that he's not prosecuting the cases the way that he should," Bullock said. "(Bernstein) is doing what he needs to do, which is to make his rounds, to have his commercials and to keep raising money."According to the crime statistics, Baltimore saw an 8 percent increase in the murder rate last year. The candidates were asked what they could do to make the city's neighborhoods safer."We need to be focusing on these violent repeat offenders. That is not happening. He has failed to do that, and time and time again we see it in my community. My car was just roped off in a murder scene just six months ago. It's completely unacceptable," Mosby said."What they're telling us -- at least when I'm out there walking the streets and meeting people who live in those neighborhoods, which I do quite often -- is that the level of violence has dropped. People feel safe and secure, or more safe and secure. Now, they can walk around, their children can walk around. To me, that shows real success," Bernstein said.Bullock said low voter turnout on Primary Day could play in Bernstein's favor, but he said Bernstein has to make some strides in west Baltimore, where Mosby will likely do very well.

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A Closer Look at the Great Charter Drafted nearly 800 years ago, Magna Carta subjected the king of England’s authority to the rule of law and asserted important individual rights. The historic significance of the Great Charter has been characterized in superlative terms, often described as one of the most important legal documents in the history of democracy. Through the centuries, various nations have invoked the principles embodied in Magna Carta—yet very few of those inspired by its contents ever set eyes on an actual document. Starting today, LACMA is hosting a ten-day public presentation of an original manuscript of Magna Carta as part of BritWeek. Magna Carta, Issue of November 1217: the original charter sent from King Henry III to the county of Gloucestershire. Bodleian Library, University of Oxford First granted by King John in 1215, Magna Carta was subsequently reissued five times throughout the century during the successive reigns of Henry III and Edward I. Written close to two centuries before Gutenberg’s invention of movable type, these different issues of Magna Carta were officially transcribed by hand, or “engrossed,” and dispatched to county courts to spread the terms of the new agreement throughout England. Since such manuscript transcriptions of the multiple issues of Magna Carta were prepared for each county court, hundreds of engrossments would have been executed over the course of the thirteenth century. Of these, a mere seventeen are known today. The document on view at LACMA is a manuscript of the 1217 Magna Carta, issued by Henry III. For all of its celebrated history and remarkable rarity, at first sighting the document itself may appear rather modest in scale. It is written on a single parchment in a dark brown ink, likely made from oak tree gallnut growths, with minimal decorative flourish. Prior to the widespread availability of paper in the fifteenth century, parchment or vellum made from the skin of such animals as calf, sheep, or goat was used as a writing support. Preparation of parchment required stretching, scraping, treating and drying the animal skin. The size of this document on parchment is therefore bounded by the size of the animal (in this case sheep or goat). The 56 lines of Latin text, carefully laid out in a chancery script on the “flesh side” of the parchment, are in heavily abbreviated form to economize space and accommodate the lengthy text—running close to 2,500 words—onto the small surface. The seals at the foot of the document are those of the two guardians of the ten-year-old Henry III, himself too young for his own seal. The document is preserved in excellent condition, the text quite clearly legible to those proficient in this Medieval legal Latin, with only very minor losses at the bottom right edge of the parchment (among suspected culprits of this damage are mice). Even at the Bodleian Library in Oxford, where the document is conserved, Magna Carta is not on regular public display. Indeed, this is a rare chance to scrutinize closely the document’s small script and consider the great impact of its words. Naoko Takahatake, Assistant Curator, Prints and Drawings This entry was posted on Tuesday, April 26th, 2011 at 6:00 am and is filed under Uncategorized. You can follow any responses to this entry through the RSS 2.0 feed. Fashioning Fashion's Paper Wigs: How'd We Do It? Levitated Mass: The Story of Michael Heizer's Monolithic Sculpture Henri Matisse: La Gerbe Shigeyuki Kihara's "Siva in Motion" New Acquisition: 158 Couture Designs, 1880-2008 Growing Up with LACMA Winter Wool and Moths: Repairing a Museum-Grade Textile Watts Towers' California Color Chris Burden's Metropolis II on Its Way to LACMA Faux Pearls, Fish Scales, and Fancy Dress Recent Comments

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To All the Married Gay Couples Out There: The Fight Doesn't End With DOMA's Ruling By Jacob Tobia First of all, I want to offer you my sincere congratulations on your incredible victory this week. Through the recent decisions of the Supreme Court, your lifetime relationships are now acknowledged by the federal government as well as by your state. For all intents and purposes, your marriage now means as much as anyone else’s. What a wonderful feeling it is to know that you and your loved ones are protected with all of the family rights afforded to any other citizen of the United States. It is truly inspiring to know that, at least in some places in our country, LGBT-identified people have the same potential to have a legally recognized family as anyone else. Your victory this week is historic, and will undoubtedly be written about many times over as we chronicle our history as an LGBT community — but I think it’s prudent to point out that this is your victory, not our victory. While your rights and liberties have been greatly expanded because of the Supreme Court’s decision, the rights of most people within the LGBT community haven’t grown at all. As a queer North Carolinian, I have no more rights today than I had last week, and because of the Supreme Courts' narrow ruling on Proposition 8, I have little hope of attaining those rights anytime soon. For us, members of the LGBT community who don’t live in states where marriage equality is a reality, we have a long, uphill battle. Given that Amendment One passed in North Carolina only a little over a year ago by a 61% majority, I don’t think that marriage equality will exist in my home state for at least another ten or twenty years without federal or court intervention. I’m not saying all of this in order to make you feel bad about your big win yesterday — by all means you should celebrate jubilantly — but I do want you to understand that, along with these newfound rights come increased responsibilities. As American LGBT families that are fully recognized under both state and federal law, you now enjoy more rights than most queer people around the world. Don’t take that statement lightly. It means that, within the LGBT community, you enjoy a vast amount of privilege. You can visit your partners in the hospital, file joint tax returns, enjoy social security benefits, adopt children, and create a home with the security of knowing that your home is as respected as your neighbors. What an incredible change, and what an incredible moment in the lives of your families this must be. I’m writing you today with one simple request — I’m asking you not to forget about people like me, people who live in communities and regions around the world that do not have legal protections for LGBT people and families. You don’t have to look that far to remember. Look at low-income communities in your own backyard, and you will find LGBT people whose concerns are more fundamental than the right to have a legally recognized family. You’ll find homeless LGBT youth and adults who don’t know where they’ll get their next meal, you’ll find LGBT people who are working three minimum-wage jobs and can’t come out at any of them for fear of being fired, you’ll find LGBT people who can’t walk alone at night without the fear of imminent physical violence and assault, or you’ll find LGBT students who have systematically been pushed down the school-to-prison pipeline because of their identity. Throughout the country, LGBT people continue to be marginalized, disenfranchised, and abused, and that’s a fact that no Supreme Court decision is going to change. So this week, as you celebrate your new status as a legally recognized family and attend pride parades around the country, remember that we still have work to do. This weekend, you should go to Pride, go out dancing, have a barbecue, or take a romantic getaway with your partner, but please don’t forget about the rest of us when you wake up on Monday. Rich or poor, black or white, citizens or immigrants, married or unmarried, we are an LGBT community. Now, more than ever, I don’t think that’s something we can afford to forget. With love, solidarity, and celebration, P.S. I better get some invitations to some pretty fierce weddings soon! Jacob TobiaJacob Tobia is a genderqueer activist, writer, and part-time fashion icon who has been featured in The Huffington Post, PolicyMic, MSNBC, and The Nation. Committed to justice for gender non-conforming, genderqueer, and transgender people, Jacob has worked on campaigns for gender-neutral housing, access to transgender health benefits, and many others. They currently live in Washington, DC. 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HomeMediaPress ReleasesWalsh Named Chief Deputy Attorney General Walsh Named Chief Deputy Attorney General (Phoenix, Ariz. – March 24, 2004) Attorney General Terry Goddard has appointed James P. Walsh as the new Chief Deputy Attorney General. Walsh recently served as the Chief Assistant Attorney General, and also served as the Antitrust Unit Chief and Special Counsel to the Attorney General. Prior to joining the Attorney General’s office in June 2003, Walsh was a solo practitioner concentrating on legislative representation, governmental relations and alternative dispute resolution. Walsh received formal mediator training from the Harvard Law School’s Mediation Workshop in 1989. Walsh served as an Arizona State Senator from 1975 to 1976, and also worked as an assistant to Mayor Terry Goddard. Walsh served on the Board of the Arizona Dispute Resolution Association (ADRA) and was the ADRA President for one year in 1997. He holds a law degree from the University of Chicago Law School. Pages« first‹ prev123456789…next ›last » Arizona Attorney General

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Home : Publications : Quality Employment Services: Will You Know It When You See It? Institute Brief 11 By: David Hoff Originally published: 1/1999 Suggested audiences: People with disabilities & family members & Agency managers When purchasing most products or services, we typically weigh a variety of factors before making a decision to hand over our hard-earned dollars. Even the most routine purchases, such as a newspaper or candy bar, are done with some thought about the quality and reputation of the product. When spending a lot of money for something which will have a major impact on our lives, a significant amount of research is often done before making the actual purchase decision. For many types of products and services, there are lots of places to get information in order to make a good purchasing decision. Yet, when it comes to the quality of employment services for people with disabilities, the consumers of these services have little to guide them. Frequently, they have to rely on professionals to provide them with information on the variety and quality of services available. Hopefully this information is comprehensive and objective, but these professionals often have a vested interest in the selection of a specific service option and a limited knowledge of a person's unique needs. Even though it is often not the consumer's own money being used to purchase services, it is their own life. People with disabilities and their families need to look at the selection of employment and vocational service options as they would any other major purchasing decision, since these decisions can have an impact on the person's life for many years to come. The intent of this brief is to provide guidelines and a process for people with disabilities to evaluate service options, in order to receive services that best meet their individual needs. Why You Should Critically Evaluate Service Options Investigating and critically assessing services takes time and energy. Is it worth the bother? The answer is definitely Yes! All Programs are Not Alike: While they are sometimes portrayed as being fairly similar, all employment programs for people with disabilities are not alike. Programs vary in size, types and variety of services offered, service and staff quality, people served, and most importantly, quality of results. You Do Have a Choice: People with disabilities have much more say in the services they receive then they may realize. Sometimes funding agencies present services available with a "take it or leave it" attitude or from the point of view of an "expert" who knows what's best. There are other times that funding agencies are simply unaware of the variety of options available. People with disabilities need to advocate for service alternatives, which means knowing what alternatives are available. Are There Alternatives? While evaluating programs and service options may sound like a good idea, the reality all too often has been a limited number of possibilities for services. Programs may not have the capacity to take additional referrals; there may simply be a limited number of service providers, particularly in rural areas; or, while there might be some alternatives, there may still be a lack of quality services to properly meet an individual's needs. There is still a need to evaluate what's available, to see if it's necessary to advocate for making changes to existing services or to develop creative alternatives. Empowerment Through Knowledge: Taking the time to learn about and critically assess service options allows you to be much more in the "driver's seat" when negotiating with funding agencies and service providers, rather than passively accepting what you're being told. Start by Figuring Out What You Want and Need Before gathering information on services, you need to figure out what's important to you. Think about what jobs you have had in the past and what services you received. What worked? What didn't work? What did you like? What didn't you like? Some areas to think about: Do you need help in finding out what kind of job and career you would like and what you are good at? What kinds of help do you need now? In the future? Will your support needs change over time? Are there times you need more help than others? How active can you personally be in the job search? Do you just need some help in finding a job, or someone to take the main role in the job search including setting up and going with you on interviews? What are your hopes for employment? Type of job? Number of hours? Pay? Benefits? What is most important to you? Pay and benefits? Fun people to work with? Safety and security? Location? Job satisfaction? Potential for promotions and growth? What type of services do you want and need on the job? Will you need help from agency staff at the job site (i.e., a job coach)? If so, do you need help only when you start the job, or will you sometimes need help even after you've been on the job for awhile? How often will you need help on the job? Every day? Weekly? Less frequently? Do you need help with transportation? Do you need help managing your benefits (e.g., Social Security, Medicare, Medicaid, subsidized housing)? Do you need help finding things to do when you're not working? How are services going to be paid for? Some of the funding options: your state developmental disability agency, mental health or public vocational rehabilitation agency; funding from social security through the PASS, IRWE, or Ticket to Work Program; general workforce investment resources available via One-Stop Centers; private funds of your own. Getting the Information One of the challenges you will face is how to get the information you need, in order to make a good decision about which services are best for you. You can use the same strategies you would use when making any other major "purchase" or looking for professional services. For example, when looking for a doctor, people will usually ask their friends for ideas and recommendations. You can similarly talk to "customers" who have had experience using employment services. Here are some ideas on how to get information: Talk to friends. Talk to other people who have used similar services. Talk to other families. Talk to teachers. Ask state and county funding agencies, such as the Departments of Mental Retardation, Developmental Disabilities, Mental Health, Vocational Rehabilitation, or Office for Refugees and Immigrants for a list of provider agencies in your local area. Contact America's Service Locator from the U.S. Department of Labor (www.servicelocator.org; (877) US2-JOBS), or your state department of employment and training for the location of your local One-Stop Center, and information on the availability of other workforce investment resources. Find out if state agencies have information and statistics on how successful individual agencies have been in helping people find and keep jobs. Interview the directors and staff of provider agencies. Ask for consumer and family references. Read agency's annual reports and other written material from the provider. Contact your local chapter of the Association for Persons in Supported Employment (APSE). Contact local self-advocacy and family advocacy groups (for example, Citizen Advisory Board, Families Organizing for Change). Talk to your case manager at the funding agency. Talk to staff in local Mutual Assistance Associations and community-based minority organizations. In gathering information, it's important to keep the following in mind: Get a variety of viewpoints. For example, a funding agency may consider an agency to be a good provider because they do their paperwork well. However, this may not mean the agency provides the quality employment services you are looking for, and may not be the best advocate for the people they serve. Remember what is important to others may not be important to you, and vice versa. For example, you may not want or need a lot of help from agency staff on the job, while other people may feel that regularly having a staff person present on the job is critical to their success. Some families simply value having some place safe for their family member to go every day, such as a sheltered workshop, while others want a good job in the community. Also, some individuals may want to work with others who are bilingual and bicultural. All too often, the expectations for people with disabilities or the services available have not been very high. Services which are regarded as good by many people, may not be good enough for you. Remember that numbers don't tell the whole story. Look at both objective job placement data (number of jobs, hours, benefits) as well as the quality of jobs, and the quality of relationships that staff have with program participants and families. What to Ask In gaining a comprehensive "picture" of an organization and judging whether it's the right one for you, the following questions may be helpful. Is the program based in the community (an office) or is it run out of a facility (like a sheltered workshop)? If it is based in a facility, does a new program participant have to spend time in the facility before or during the job search? Does the agency offer a variety of services, or is the agency strictly focused on community employment for people with disabilities? What are the agency's guidelines for service eligibility? When it is unclear whether a person will easily succeed in employment, are they willing to give people a chance? Who does the agency serve? People with what kind of disability? What ages? What gender, races, and cultural backgrounds? Where does the agency receive funding from? If the agency is mainly government funded (as most are), what specific state agencies provide funding? Is there more than one funding source? How stable is that funding? How many people does the agency serve? (Note: Studies have shown that agencies which serve more than 100 individuals are generally not as successful in meeting the individual community employment needs of people with disabilities;Institute for Community Inclusion, April 1994) How many people did the agency assist in finding jobs in the last year? What types of jobs has the agency helped people find? How long do individuals stay in the jobs they find with help of the agency? What do people earn? How many hours are they working? Do they get benefits (health insurance, vacation)? Does the agency offer individual placements? Are group placements (enclaves) used? What happens when a person does not succeed on a job? Is the agency willing to help a second or third time to get a job? Can the agency help me get a job in my community? What kind of staff turnover does the agency have? How long has the director been there? How many staff are available to help people (i.e., direct service staff)? What kind of qualifications and credentials do staff have? Are there bilingual and bicultural staff? Ask agency staff to describe the typical process for providing services for an individual. How does the agency tailor services to individual needs? What opportunities are provided for the person to exercise real control and choice over the services provided? What kind of planning process is used to design services, job search and support? How are family, friends, residential providers and other significant individuals involved in this process? How does the agency help people figure out what kind of job they want (i.e., how do they do vocational assessment and evaluation)? Does the agency use community settings? What role does the agency take with employers and people with disabilities in job search efforts, placement, job accommodation and ongoing support? Do they view their role as one of providing assistance and support, or is it more of a "take charge" authoritative approach? Does the agency offer services and materials in different languages? How does the agency assist individuals in managing the impact of income on public benefits (e.g., Social Security, Medicare, Medicaid, subsidized housing)? What is the level of agency expertise and resources in benefits management? How does the agency emphasize the use of existing "natural" supports from employers and the community, rather than staff and the agency providing all necessary assistance and support? How does the agency assist and support individuals during periods of unemployment or underemployment? Does the staff talk about the individuals served in respectful and adult-appropriate ways? Does the agency create a welcoming environment? Are people greeted when they have an appointment? Does the agency have a welcome letter or packet for new clients? Can the agency provide recommendations from people who have previously received services from them? How does the agency fund and provide for the long-term support needs for the people they serve? Does the agency appear to be organized and professional? What is the reputation of the agency in the community? Does the agency have common bathroom and dining facilities for staff and clients? Do you feel comfortable with the way you are treated? Are your questions answered in a way that respects and acknowledges your concerns and provides real answers? How will services respect an individual's unique cultural traditions and beliefs? New Service Trends In the past 5 to 10 years, there have been many changes in expectations and what opportunities people consider "best practices" in services for people with disabilities. These changes in the disability field have created the need for new methods to evaluate services. These changes include: Movement Toward Community Based Services In the past, when most programs (such as sheltered workshops) were facility based, it was fairly easy to tour the facility, meet program participants and staff, and make a judgment about the quality of services being offered. The current movement towards helping people get jobs in the community instead of spending their days in a "facility", is exciting and a much welcomed trend. However, as individuals work in regular jobs, it is harder to get information and see the services offered, since there is not a stationary "facility". What is needed are creative ways to evaluate community-based services. Changes in Funding Methods: In an effort to give people more control and choice over where the money spent on their behalf goes, the use of vouchers and other flexible financing mechanisms is increasing. The new Ticket-to-Work Program from Social Security, and the Individual Training Accounts (ITA) from the One-Stop System are just two of the most obvious examples. This desirable shift to greater individual control brings with it a need to properly evaluate services. Community Employment as a Desired Outcome: With the expansion of school-to-work initiatives, a growing number of people with disabilities are leaving school prepared and expecting to work in the community. These new graduates need to be able to decide which services are best for them, to ensure they have the opportunity for the type of job, career, and life they want. Consumer and Family Perspectives Recent qualitative research has pointed out the need for consumers and family members to critically evaluate service options. Among the implications of this research: Professionals working with individuals with disabilities need to understand the importance of meaningful work in the lives of people with disabilities Work plays an integral role in developing self-esteem as well as a sense of being part of society Work needs to be consistent with the individual's goals and interest, not just compatible with available job openings A need for a variety of individualized supports and opportunities on the job Use of natural supports of co-workers and supervisors on job site Flexible job coach support that responds to individual and family needs Greater consumer and family involvement in the vocational rehabilitation system Education of consumers as to their rights and responsibilities in the VR system Empowerment of consumers to take control over their decisions As appropriate, active family involvement of family in rehabilitation system through support and information sharing From Consumer and Family Perspectives on the Meaning of Work, by Ruth Freedman and Sheila Fesko; The Center for Promoting Employment: RRTC, a project of the Institute for Community Inclusion and Boston University Center on Work and Family. What is a Quality Program? If you want a job in the community, here are some guidelines for deciding whether a program is the right one for you. No program is going to meet all these perfectly, but programs should recognize these as important things they should work toward. Everyone has the right to a job in the community, without regard to label or severity of disability. Individual Choice The individual receiving services helps decide what services are provided, how they are provided, and which staff provide them. Service Setting Services are provided in integrated community settings (e.g., businesses in the community), with the chance to spend time, communicate and develop friendships with people without disabilities. Services respect and try to accommodate diverse cultural and lingustic preferences. Assessment (evaluation) is not done to figure out "what's wrong" and how to "fix it," or to see if the person is "ready" to work. The agency helps the person figure out their dreams, hopes, interests and capabilities. Jobs and support services are developed in response to what the person wants and needs. Community settings (i.e., real employers) are used for all assessments. Service and Placement Design Rather than "fitting" people into existing programs, people are helped to find their own jobs (not group situations), and are paid directly by the employer at the competitive wage for the job. For example, a program may give options such as, "You can go in our janitorial training or food service training program" or "You can go to our enclave at the supermarket or the packaging company." What they should be saying is, "Let's find out what kind of job you would really be happy doing, and we'll help you find it." Use of Community Resources The program makes every effort to help people use services and resources used by all community members (people with and without disabilities). "Special" services for people with disabilities (such as special transportation) are used only when there are no other possibilities. For example, a person who wants to learn office skills or English as a second language would be provided help to take a course at the local community college, rather than receiving the training from a disability agency. A good provider realizes that people have a right to work in the community, even if they act differently or have behavior problems. Instead of controlling or modifying behavior before a person is given a chance at a job, emphasis is placed on matching the person in a situation which meets their needs and/or lessens the impact of the behavior. People are placed in jobs where their behavior is acceptable (e.g., an individual who speaks in a loud tone of voice is placed in an active, noisy work environment), in places which will not cause behavior problems (e.g., an individual with a compulsive eating disorder is placed in a job with no access to food), or simply in environments where they are given more control, thus reducing problem behavior over time. Training and Staff Role Training is done to the fullest extent possible by the employer. Agency staff see their role as providing consultation to supervisors, co-workers and other community members, to help the person with a disability succeed on the job. Staff do not replace typical employer training and support, but only add to it if necessary. Training On The Job Training and support are customized to the specific needs of the individual, the employer, and the social aspects of the job. Training and accommodations are always done in ways that are respectful of the individual, and encourage integration into the job environment. For example, co-workers interact and give feedback directly to the employee, and not through the job coach; the job coach does not speak for the employee. Skill and Social Match In developing jobs, the agency not only looks for a job which is a good match to the skills, culture, and interests of the individual, but also finds jobs which a person is comfortable in socially. For example, a person who is naturally quiet and likes to keep to themselves, would not be placed in a job which requires lots of personal interactions and where everyone else is outgoing. Jobs are developed and services provided so that people not only get a job, but also get the chance to make friends and participate in social activities connected with the job. People are encouraged and provided assistance to participate in such activities as: going to lunch with co-workers, coffee club, birthday celebrations, social gatherings and parties outside of work, and company sports teams. Services are provided in a way that supports ongoing career development. Individuals have the opportunity to improve their skills, change positions and jobs, and change careers. Career development includes the opportunity for increased hours, benefits, and employment on a full-time basis with financial independence. Holistic Approach Having a good job is seen as one part of your life that relates to other things, including social relationships, recreation, and where you live. Services are provided so that a person is able to experience all aspects of community life. The purpose of employment services for people with disabilities are not simply to help a person with a disability get a job. Employment is about people: Reaching their full potential Becoming participating community members Having a valued role, with the same rights and responsibilities as everyone else Experiencing and enjoying all that life has to offer Defining themselves and their place in the world A job is simply one of the ways for these things to happen. The Disability Service System: How Is It Organized? The disability service system can seem confusing with numerous funding sources and public and private agencies. The following information can help people with disabilities better understand how the service system is organized and operates. Public Agencies There are a variety of public agencies involved in employment for people with disabilities. While the structure varies significantly from state to state, in general these public agencies operate in two ways: Providing services directly to individuals who qualify for their services. Funding community organizations (typically private, non-profit agencies) and private contractors to provide services to individuals. Some public agencies both provide employment services themselves and fund employment services to sub-contractors who provide more intensive services, while others are strictly funding sources. Some public agencies may have limited funding or waiting lists for services, while others may not. Also, not all people with disabilities are eligible for funding or services from all agencies, but individuals may be eligible for services from more than one agency. It is therefore important for people with disabilities to check all the options that they may be eligible for. Public agencies include: Developmental Disability/Mental Retardation (DD/MR) Each state has an agency or department that is responsible for services for people with developmental disabilities and mental retardation. The name varies from state to state; Division or Office of Developmental Disabilities, and Department or Office of Mental Retardation are typical names. The scope of services provided and individuals served varies from state to state. DD/MR agencies typically provide long-term funding for individuals. A listing of state DD/MR agencies is located at: http://www.caccb.org/orgs/caccb/ddrc/states.htm Mental Health Agencies Every state has a public mental health department or agency that meets the needs of individuals with psychiatric disabilities. Services are both short-term and long-term in nature. A listing of state mental health agencies is available at www.nasmhpd.org/members.htm One-Stop Centers/America's Workforce Network Every local major population area has a One-Stop Center through which all individuals (including people with disabilities) can access a variety of publicly funded employment and training services. One-Stops are a major component of America's Workforce Network, coordinated by the U.S. Dept. of Labor. Locations of local One-Stop Centers, and information on other services of America's Workforce Network can be obtained by contacting America's Service Locator at: www.servicelocator.org; or by phone toll-free at: (877) US2-JOBS [877-872-5627] For additional information on One-Stop Centers, see the Institute publication "One-Stop Centers: A Guide for Job Seekers with Disabilities" The Social Security Administration funds employment services through the following programs. Ticket-to-Work Program: Began in January 2001, with a complete roll-out across the country by 2004. Under this program, individuals receiving Social Security disability benefits (Supplementary Security Income or Social Security Disability Insurance) receive a "Ticket to Work". Individuals can use this "Ticket" to obtain services from any qualified provider of employment services. As of this writing, details of how the system will operate are still being determined. However, individuals with disabilities should contact the Social Security Administration to learn more, and find out when the Ticket-to-Work is coming to their area. PASS (Plans for Achieving Self-Support) Program: Individuals can pay for employment and training services by putting aside income that would normally result in a reduction of their cash benefits. Additional information is available at www.ssa.gov/work Individuals with disabilities who receive special education services and have an Individual Education Plan (IEP) are entitled to provision and/or funding of employment services by their school system until they turn 22 (in some states this may be higher) or until they graduate, whichever comes first. Each state has a public Vocational Rehabilitation (VR) system. To be eligible for VR services, a person must: have a physical or mental impairment that is a substantial impediment to employment; be able to benefit from VR services in terms of employment; and require VR services to prepare for, enter, engage in, or retain employment. Priority is given to people with the most significant disabilities. VR services are typically oriented towards a specific employment goal and therefore are usually time-limited in nature. An individual's case is typically closed, and funding of services is discontinued, once an individual is stable on a job for 90 days. If an individual is going to need funding for job support beyond 90 days (such as job coaching services), then another source of funding must be found for these services. Agency for Blind and Visually Impaired Each state has an agency that serves individuals who are Blind or Visually Impaired. These agencies are part of the VR system, but are considered to be separate from basic VR services. They may be housed within state VR agencies or function as a separate, co-equal department. Links to each state's Public VR Agency, and Agency for the Blind and Visually Impaired, can be found at www.nchrtm.okstate.edu/pages/state_VR.html In addition to the resources listed above and in the resource section, you can find local listings for public agencies in the government pages of your phone book. How do public agencies operate? The specifics of how public agencies operate varies significantly from state to state. Different agencies in the same state may also operate differently. In some cases, agencies have a central office, with a network of local offices throughout the state. In some cases agencies are a separate department in the state government, while others may be a department or office in a larger state agency (such as in a department of human services or labor). Services may also be administered at a county level, possibly through a county mental health or public health department. Case management and service coordination is also handled in a variety of ways. This may be done by a public agency, or it may be handled by a private agency under contract with the state or county. Also, in some states, a number of different agencies may collaborate to fund services for one person; in other states, a person may typically receive funding from only one agency. Consumers and families may find it useful to become familiar not only with the agencies in their local area, but the structures they use to fund or provide services. A variety of private agencies provide employment-related services to individuals with disabilities. The major funding source for these agencies is typically one or more of the public agencies listed above. (Other sources are federal grants, private foundations, charitable contributions, and user fees.) These organizations vary considerably in size, type of services, quality of services, and population served. For example, some agencies focus exclusively on employment, while others offer a wide variety of services, such as non-employment daytime activities, housing and family support. Some agencies focus on one population group (such as individuals with developmental disabilities), while others serve people with a variety of disabilities. These community based organizations go by many different names, but some of the more typical ones are: Community Rehabilitation Providers (CRPs) Supported Employment Programs Employment Service Providers Psychosocial Rehabilitation Services (for individuals with mental health issues) Club Houses (a program for people with mental health issues) Association for Persons in Supported Employment Voice: (804) 278-9187; Fax: (804) 278-9377 E-mail: [email protected] Web site: www.apse.org National supported employment organization. Has state and local chapters. Job Accommodation Network (JAN) Morgantown, West Virginia 26506-6080 Accommodation Information: (Voice / TTY): (800) 526-7234 ADA Information: (Voice / TTY): (800) 232-9675 E-mail: [email protected] Web site: www.jan.wvu.edu Info on employment issues and accommodation National Information Center for Children and Youth with Disabilities Voice/TTY: (202) 884-8200; (800) 695-0285 E-mail: [email protected] Web site: www.nichcy.org Main focus of NICHCY is on children and youth, however maintains state and local listings of disability-related organizations, parent groups, and professional associations, applicable to all age groups. Pacer Center 8161 Normandale Boulevard Bloomington, MN 55437-1044 E-mail: [email protected] Website: www.pacer.org Resource center for individuals with disabilities and their families Office on Disability Policy (formerly the President's Committee on Employment of Persons with Disabilities) 1331 F Street, N.W., Suite 300 Web site: www.pcepd.gov Information on employment issues Presidential Task Force on Employment of Adults with Disabilities 200 Constitution Avenue, NW, Suite S-2220 Voice: (202) 693-4939; TTY: (202) 693-4920 E-mail: [email protected] Web site: http://www.dol.gov/dol/_sec/public/programs/ptfead/main.htm Advocates and coordinates a variety of national efforts to increase employment of adults with disabilities Self Advocates Becoming Empowered P.O. Box 105 CI New Fairfield, CT 06812 Web site: www.sabeusa.org National self-advocacy organization Social Security Administration (SSA) Office of Public Inquiries 6401 Security Blvd., Room 4-C-5 Annex SSA has a national network of regional and local offices Office of Disability: www.ssa.gov/odhome 29 W. Susquehanna Ave., Suite 210 E-mail: [email protected] Web site: www.tash.org National disability advocacy organization. Has state and local chapters. Glossary of Disability & Employment Terms Clubhouse Program: A psycho-social rehabilitation program for individuals who have psychiatric disabilities, with an emphasis on participant control, working in conjunction with paid staff. Clubhouses often provide assistance with employment. Community Rehabilitation Provider (CRP): A community-based agency, typically private and non-profit, that provides employment services to adults with disabilities. The majority of funding for most CRPs comes from government agencies and funding sources. Employment Specialist: A staff member from a human service agency who helps people with disabilities obtain employment. This term is sometimes used interchangeably with the term "job coach". Enclaves: A group of individuals with disabilities who work in a community business with ongoing support and possibly supervision provided by rehabilitation agency staff. Job Coach: A staff member from a human service agency who assists an employee with a disability with their integration into the work place. Natural Supports: Natural, supportive relationships that are fostered and developed among individuals with disabilities and non-disabled co-workers and others. An emphasis in recent years in the disability field has been on using these relationships to support an individual with a disability, rather than relying on paid staff for assistance and support. Person-Centered Planning: A planning process that focuses on the individual and his/her interests, strengths, and needs. Emphasis is placed on the planning process being controlled by the individual with a disability, with involvement by individuals of their choice from their personal network. There are numerous models of this type of planning available. Provider Agency or Vendor: A private agency that offers residential, vocational, and/or support services that are purchased by state human service agencies. Situational Assessment: Identifies an individual's vocational interests and skills through the performance of job tasks in a variety of actual work environments in the community. Supported Employment: The provision of ongoing support from an external source (e.g., a community rehabilitation provider or state agency) to an individual in a paid, community-based employment setting, where the majority of the workers do not have disabilities. Supported employment typically uses a job coach (also known as an employment specialist or consultant) to provide assistance on the job. Transition: In the special education and rehabilitation fields, the process of a student's movement from school-based, school-sponsored activities and services to community-based and/or adult services. This issue was written by David Hoff. For more information: Voice: 617 287-4300 TTY: 617 287-4350 e-mail: [email protected] Contributors: Sheila Fesko and Ruth Freedman Editorial assistance provided by: Marty Gold; Ashley Hunt; Melanie Jordan; Joe Marrone; David Temelini; Cindy Thomas; Margaret Van Gelder. The authors wish to extend a special thanks to Liz Obermayer, Performance Consultant with ProLerna of Towson, MD, and self-advocate, for her excellent editorial feedback and guidance in the preparation of this material. This is a publication of the Center on State Systems and Employment (RRTC) at the Institute for Community Inclusion/UAP. It was supported in part by grant #H133B980037 from the National Institute on Disability and Rehabilitation Research (NIDRR) of the US Department of Education. The document was supported in part by cooperative agreement #90DD0299 from the Administration on Developmental Disabilities (ADD), US Dept. of Health and Human Services. The opinions contained in this publication are those of the grantees and do not necessarily reflect those of the US Department of Education or represent official ADD policy. This publication will be made available in alternate formats upon request. , the University of Massachusetts Boston. ICI is affiliated with the University of Massachusetts Boston and Children's Hospital Boston. Permission to use, copy, and distribute all documents on this site, in whole or in part, for non-commercial use and without fee, is hereby granted provided that appropriate credit to the University of Massachusetts Boston be included in all copies. 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stories from August 7th, 2014 Legal Issues Tim CushingThu, Aug 7th 2014 8:36pm financial records, jason leopold, keith alexander, nsa, public records, transparency Jason Leopold Files Lawsuit Over NSA's Refusal To Release Keith Alexander's Financial Recordsfrom the the-agency-is-just-so-used-to-saying-'no' dept FOIA enthusiast Jason Leopold isn't going to sit back and let former NSA head Keith Alexander recede noisily into the background. Alexander's transition from spy-in-chief to $1 million-a-month rockstar security consultant to our nation's most easily-impressed banks is currently on everyone's minds. First off, how many state secrets is he selling? And just how many hacker-beating patents will he be filing for? But while slipping loudly out the front door with a quick wave of the hand and an accidental admission that his long tenure at the NSA's helm has done nothing to beat back the terrorist horde, Alexander may have felt his move to the private sector would keep his financial records out of the public eye. Leopold, however, has just filed a lawsuit against the agency for its continued refusal to release these public records. [S]ome aren't simply laughing off the retired four-star general's new endeavor. Some, like Leopold, are concerned that Alexander might actually plan on selling high-level state security secrets for his hefty price tag. In the Baltimore division of the federal district of Maryland, the law offices of Jeffrey Light have served the NSA with a complaint, listing Leopold’s multiple attempts to retrieve Alexander's records, and the utter refusal by the agency to fulfill the journalist’s requests. Citing the Ethics in Government Act, Florida Congressman Alan Grayson wrote on behalf of Leopold, in a letter addressed to NSA Deputy Counsel Ariana Cerelenko, pressing that the public release of Alexander’s financial records are required—“unless the President finds that the release of the form would ‘reveal sensitive information,’ or ‘compromise the national interest.’" As Daniel Stuckey at Vice points out, the NSA is the lone holdout when it comes to financial records. Even the CIA and the ODNI (Office of the Director of National Intelligence) have made these documents available. But the NSA wants to hold onto Alexander's records even though there's no established legal reason for doing so. Notably, this is not a FOIA request. This is a document that can be requested by any member of the public simply by filling out a form. These financial disclosures are to be made public under the stipulations of the Ethics in Government Act (EGA) of 1978. But the NSA has held the (now former) agency head above the requirements of this law, even though there's nothing in the law that indicates the agency is outside of its jurisdiction. Obviously, Alexander's departure for the private sector raises questions about his prior connections to companies that may have benefited from expanding surveillance programs or may be potential purchasers of his $1 million/month protection plan. These are questions that need answers, and the NSA is arbitrarily withholding mandatory financial disclosures. If the White House has given the agency super-secret permission to ignore the stipulations of the EGA, hopefully Leopold's lawsuit will force that out into the open. If not, the NSA will need to start explaining why it's not being responsive, and it won't have the handy b(5) exemption [for FOIA requests only] to lean on. Read More Too Much Free Time Michael HoThu, Aug 7th 2014 5:00pm atomic clock, hoverbike, superconducting cable, transportation, wristwatch DailyDirt: Living In The Future... Nowfrom the urls-we-dig-up dept Technology has made some impressive advances over the last few decades. We don't have strong AI just yet -- nor flying cars -- but there are some pretty cool gadgets all around us. Kids are walking around with supercomputers (by 1960s standards). Some forms of cancer actually have reliable treatments. (Unfortunately, there are over 100 types of cancer, and many of them are still incurable.) Let's appreciate some of the awesome stuff that didn't exist just a few years ago. Here are a few more nifty things that kids will take for granted soon. Flying cars might not be driving around anywhere anytime soon, but a hoverbike could be zooming around remote locations (if you're brave enough to try to pilot it). A rider sits on this hoverbike as a passenger on this quadcopter-like mode of transportation... and it looks like a very noisy way to get from point A to B. [url] A superconducting power cable is going to be laid underground in Chicago, and it will be able to carry an order of magnitude more power than conventional copper cables. This new cable is designed to prevent power outages by re-routing electricity in the event a power substation fails, reducing the likelihood of a cascade failure of substations that could knock out power to a significant portion of the city. [url] Forget smartwatches. Don't you want to wear an atomic clock on your wrist? A wristwatch using cesium-133 is accurate on the order of one second in a thousand years, and each watch will cost about $12,000 in a limited edition run. [url] Mike MasnickThu, Aug 7th 2014 3:40pm aaron's law, cfaa, congress, hacking, politics CFAA: Still Broken And Congress Is Unlikely To Fix It Any Time Soonfrom the your-random-reminder dept There's been some attention paid to a recent Forbes article that confirms what pretty much everyone has always said: Congress won't move forward with reforming the CFAA. There's nothing particularly new in the article. It's just rehashing things that were hashed out over the past few years: the Computer Fraud and Abuse Act, a very out-of-date law concerning hacking, has been abused mightily for decades, well beyond its intended purpose. It got lots of attention as the law being used against Aaron Swartz, but the abuses started long before that. However, many tech companies, led by Oracle, have fought against reform (in part because they use the threat of the law to keep employees from running off with trade secrets, even though there are other laws for that). At the same time, the DOJ would actually like to make the law even worse. And, in the simplistic minds of many in Congress, if the big industry associated with the issue and the government don't want the necessary reforms -- even if the public is interested in such reforms -- it's just not worth doing. This doesn't necessarily mean that CFAA reform won't eventually happen, but like ECPA reform, patent reform and other related issues, very little can actually get through Congress these days. So in many cases, in the minds of certain folks in Congress, it's just not worth trying, even if it's the right thing to do. encrypt everything, encryption, https, search ranking, ssl Google Now Using HTTPS As A (Very Slight) Ranking Signal In Search To Encourage More Encryptionfrom the pros-and-cons dept Back in April, we wrote about claims that Google was considering giving a boost in its search rankings to sites that are encrypted. Today, it officially announced the policy, noting that the company has been testing it for a little while and thinks that it works well. The weighting is very tiny, but the company makes it clear that it will likely increase that over time, and the current low ranking is more of a "grace period" to encourage more sites to encrypt. Google also makes clear that its reason for doing this is to encourage greater encryption to make the entire web more safe and secure: For these reasons, over the past few months we’ve been running tests taking into account whether sites use secure, encrypted connections as a signal in our search ranking algorithms. We’ve seen positive results, so we’re starting to use HTTPS as a ranking signal. For now it's only a very lightweight signal—affecting fewer than 1% of global queries, and carrying less weight than other signals such as high-quality content—while we give webmasters time to switch to HTTPS. But over time, we may decide to strengthen it, because we’d like to encourage all website owners to switch from HTTP to HTTPS to keep everyone safe on the web. When we wrote about it back in April, I found it a bit surprising that Google would do this, given that, historically, it has always said its search rankings were entirely focused on quality. You could, perhaps, make an argument that a site that uses SSL is more likely to be a high quality site, but Google doesn't even appear to be making that argument. As a site that has already strongly moved to SSL, this might (marginally) help our Google rankings (not that we actually get much traffic from Google in the first place), and getting much more of the web encrypted is a good thing in general. It still seems, though, that for all the good this does, others will now make use of this as an argument for other kinds of "nudging" behavior by Google. For years, the legacy entertainment industry has pushed Google to better rank "good" sites and to downrank "pirate" sites -- which the industry still seems to think is a simple black and white calculation (it's not). Google can point out that SSL v. non-SSL is obvious, but I fully expect those who seem to think Google should be designed in their own interests, as opposed to those of Google's users, to jump on this as proof that Google can solve other problems. This still is a good move, though. Encouraging more encryption on the web is always the right move. I'm just still a bit surprised that Google would take this step, and wonder how others will react to it. crime, evidence, new jersey, rap lyrics NJ Supreme Court Says Rap Lyrics Can't Be Introduced As Evidence Unless Directly Linked To Criminal Actionsfrom the no-more-punishment-of-thoughtcrime dept The ACLU (which submitted an amicus brief in this case) breaks the news that the New Jersey Supreme Court has ruled that someone's artistic speech can't be introduced as evidence of criminal intent -- at least not without meeting some very specific guidelines. The New Jersey Supreme Court today issued a decision holding that it was improper for the State to submit rap lyrics to a jury in a criminal case where the lyrics were not directly connected to the crime itself. The Court recognized rap lyrics – including violent and profane rap lyrics – as a form of artistic expression, but one that many people find distasteful, which could improperly prejudice a jury who reads them. In the case under discussion, the prosecution submitted rap lyrics written by Vonte Skinner not as evidence he committed the crime with which he was charged, but just as a general indicator of his motive and intent. By doing so, the state was able to convince a jury to return a guilty verdict on multiple charges. Defendant was charged with first-degree attempted murder and related charges, and, before trial, he requested a preliminary hearing to contest the admissibility of his rap lyrics. The court concluded that the lyrics were relevant because they tended to prove the State’s theory of the case and found them admissible under N.J.R.E. 404(b) because they provided insight into defendant’s alleged motive and intent. Accordingly, the court ordered that redacted portions of defendant’s lyrics would be admitted into evidence. Defendant’s first trial resulted in a mistrial after the jury was unable to reach a unanimous verdict. Prior to his retrial, defendant renewed his objection to the admissibility of the rap lyrics, and the court again found them admissible. At defendant’s second trial, a detective testifying for the State read to the jury extensive passages from defendant’s lyrics, depicting violence, bloodshed, death, and dismemberment unconnected to the specific facts of the attempted-murder charge against defendant... The jury convicted defendant of attempted murder, aggravated assault, and aggravated assault with a deadly weapon, and the trial court imposed an aggregate thirty-year sentence with an eighty-five percent parole disqualifier. The appeals court reversed this decision, finding that the admission of Skinner's rap lyrics as evidence had a "prejudicial impact [that] vastly outweighed any probative value." The state appealed this decision, bringing it to the state Supreme Court. The Supreme Court upheld the appeals court's findings, noting that the history of artistic expression is littered with violent narratives unconnected to actual criminal activity. In assessing the probative value of defendant’s fictional lyrics, the Court notes that probative evidence may not be found in an individual’s artistic endeavors absent a strong nexus between specific details of the artistic composition and the circumstances of the offense for which the evidence is being adduced. The Court explains that the difficulty in identifying probative value in fictional or other forms of artistic self-expressive endeavors is that one cannot presume that, simply because an author has chosen to write about certain topics, he or she has acted in accordance with those views. One would not presume that Bob Marley, who wrote the well-known song “I Shot the Sheriff,” actually shot a sheriff, or that Edgar Allan Poe buried a man beneath his floorboards, as depicted in his short story “The Tell-Tale Heart,” simply because of their respective artistic endeavors on those subjects. The Court reasons that defendant’s lyrics should receive no different treatment. This approach is in accord with other jurisdictions that have considered similar questions. The Court concludes that the violent, profane, and disturbing rap lyrics authored by defendant constitute highly prejudicial evidence against him that bore little or no probative value as to any motive or intent behind the attempted murder offense with which he was charged. The admission of defendant’s inflammatory rap verses, a genre that certain members of society view as art and others view as distasteful and descriptive of a mean-spirited culture, risked poisoning the jury against defendant. That last sentence distills the motivation behind the growing popularity of this prosecution tactic. A jury of supposed peers is going to contain any number of people who find rap music and its subject matter offensive and an "indicator" of a person's criminal intent, whether or not such intent exists. If the court had gone the other way, there is no doubt that rap lyrics would be submitted en masse for easy wins. Fortunately, this decision directs prosecutors to more strenuously weigh their evidence before submission. In sum, rap lyrics, or like fictional material, may not be used as evidence of motive and intent except when such material has a direct connection to the specifics of the offense for which it is offered in evidence and the evidence’s probative value is not outweighed by its apparent prejudice. In the weighing process, courts should consider the existence of other evidence that can be used to make the same point. When admissible, such evidence should be carefully redacted to ensure that irrelevant, inflammatory content is not needlessly presented to the jury. Because rap lyrics tend to deal with the holy trinity of guns, drugs and money, prosecutors will still feel strongly tempted to introduce these written words as background color, if nothing else. The court's directions, while aimed at prosecutors, will likely have a greater effect on lower courts' standards for evidence admission. A state Supreme Court decision that doesn't specifically forbid the introduction of rap lyrics as evidence will just be probed for weaknesses by enterprising prosecutors, the same group that often finds someone's expressed thoughts to be inseparable from their deeds. The case also has limited bearing on a similar set of circumstances currently being examined by the US Supreme Court, where a man with a history of making outrageous comments on social media sites -- like expressing his desire to kill his estranged ex-wife or shoot up a school -- is now finding his words being used against him as evidence of criminal intent. This person has also referred to some of his postings as "rap lyrics" and has noted that much of what has been submitted as evidence has been taken out of context -- that context being the accused's long history of running his mouth carelessly on a variety of social media platforms. Unlike Skinner, no physical crime has been committed. Instead, these postings have been treated as threats by prosecutors, which brings a different perspective to the proceedings. In this case, intent is the whole of the crime, rather than just one aspect of it and, as such, should be very carefully weighed unless the US Supreme Court wants to make criminals out of the Bob Marleys and Edgar Allan Poes scattered across the web. Read More Overhype Mike MasnickThu, Aug 7th 2014 12:12pm government leaks, leaker, leaks, terrorism, tsdb, watchlist associated press, cnn, the intercept As DOJ Hunts For 'Second Leaker,' Will It Also Explore Who Leaked The Intercept's Story To The AP?from the questions-to-ponder dept Earlier this week, Tim Cushing wrote about The Intercept's latest scoop, concerning the makeup of the US government's federal terrorist watchlist, and the fact that a large chunk of it isn't affiliated with any terrorist groups. While most of the article focused on that point, he made two other notes in passing -- the first was that it was obvious that this release was from a second leaker, not Snowden, and the second was about how the government "leaked" the story in a "friendlier" manner to the AP in order to beat The Intercept. We thought both of these asides were interesting, but they've both turned into big stories on their own. CNN later confirmed that US government officials are now searching for the second leaker (though "second" may not be accurate either...), more or less confirming what many people had been suspecting. Meanwhile, the "scoop spoiling" by the federal government actually resulted in a semi-apology from the National Counterterrorism Center (NCTC) who gave the scoop to the AP. The NCTC claimed it had been working with the AP on a story for a while, and after seeing what The Intercept was doing, felt it needed to give them the heads up, though it also says it could have handled the situation better. Of course, this also makes it more likely that The Intercept won't bother giving the government much time (if any) to respond on future stories. Why risk the chance of having the government spoil the scoop again? However, with all this concern about the "second leaker," Chris Soghoian asks a very good question. If the Justice Department is going to go hunting for whoever leaked the information to The Intercept, will it similarly go after whoever at NCTC was apparently providing the same basic information to the Associated Press? Or how about the person who told CNN that the US government believes there's a "second leaker"? Because that information is also a leak, and potentially a big one, given that it will alert the leaker that the government is searching for him or her. Somehow, we don't think the DOJ will be too concerned about those leaks. "Official" leaks happen all the time and no one cares. It's just the leaks that make the government look bad that somehow are seen as criminal. Mike MasnickThu, Aug 7th 2014 11:08am copyright, monkey, ownership, public domain, selfie How That Monkey Selfie Reveals The Dangerous Belief That Every Bit Of Culture Must Be 'Owned'from the no-monkeying-around dept As we wrote yesterday, the infamous monkey selfie has returned to the news, thanks mostly to Wikimedia's new transparency report, which discusses the supposed copyright claim over the following monkey selfie: Unfortunately, as we noted, the original story in The Telegraph claimed that Wikipedia "editors decided that the monkey itself actually owned the copyright." As we explained in great detail three years ago, this was false. The monkey doesn't hold the copyright: no one does. It's in the public domain. In fact, if the reporter had been careful, he would have noted that even Wikipedia properly notes that the image is in the public domain. It did not claim that the monkey owns the copyright. However, since a major newspaper (falsely) wrote that Wikipedia had decided the monkey holds the copyright, the whole thing went viral all over again. All over Twitter I saw people claiming that the monkey held the copyright. Unfortunately, this is somewhat pernicious, starting with the Telegraph reporter, Matthew Sparkes, who made the false claim. As Sherwin Siy notes in a very good post, it's very troubling that people now come to automatically believe that someone has to hold the copyright on a photograph. That's just not true: The claim isn’t that monkeys have IP rights—it’s that no one owns the copyright in the photo. A lot of people seem to take issue with this, insisting that, if the monkey doesn’t own the copyright, the photographer must—that someone has to own a copyright in the photo. But that just isn’t true. This is the definition of the public domain—things that are not protected by copyright. We’re used to thinking of the public domain as consisting of things that were in copyright and then aged out of it after a length of time, but that’s just a part of it. There’s also works created by the federal government, and things that simply can’t be protected—like ideas, methods of operation, or discoveries. I think a big part of the problem here is that we've been trained incorrectly to believe that everything new must be covered by copyright. This is part of the most pernicious aspects of copyright maximalism today -- the idea that everything is covered by copyright. Only a few decades ago, nearly all created works were not covered by copyright and were public domain, free to be shared. It was only with the 1976 Copyright Act that the US switched from an "opt-in" policy to a "nearly everything is covered" policy, leading many people to (wrongly) believe that with any photo someone must hold the copyright. That's a dangerous assumption for culture, highlighted by the fact that so many people default to insisting that someone must hold the copyright over this photo. Meanwhile, for an even more amusing take on all of this, don't miss Sarah Jeong's defense of monkey copyrights satirical post: It’s hard enough to eke out a living as an artist without the Copyright Office butting in and claiming it is literally impossible for you to own copyrights, just because you’re a monkey. What on earth is this “Copyright Office”, anyways? What right do they have to say whether a monkey’s work is worthy of copyright or not? According to Slater’s own account, the Indonesian macaques were “already posing for the camera” when one of them started taking photos. Not all of them were good – as it turns out, some monkeys are much better photographers than other monkeys. The “monkey selfie” in question is a diamond in the mud: a truly remarkable portrait, perfectly focused and strategically positioned to capture a mischievous yet vulnerable smile. If that macaque had an Instagram account she’d have, like, a million followers. But she doesn’t, and the sorry state of our copyright law – as interpreted by the Copyright Office and exploited by Wikipedia – is to blame. Due to the backwards treatment of animal creators everywhere, monkey art (and monkey photography in particular) continues to languish. How is an aspiring monkey photographer supposed to make it if she can’t stop the rampant internet piracy of monkey works? That's only a snippet. The whole thing is well worth a read. Read More Patents africa, clinical trials, drugs, ebola, economics, pharmaceuticals, serum Ebola Cure Not Fully Developed Because Big Pharma Not Interested In Saving Lives Of Poor People In Africafrom the back-burner dept As you may have heard, there's been a somewhat scary Ebola outbreak in western Africa. You may have also heard about what some are calling a "secret miracle serum" that effectively stops the impact of the virus for those who catch it. It's an experimental drug that hasn't undergone human clinical trials yet, but it was apparently given to a couple of Americans and appears to be working. There's some indication that it would take a couple months to produce a larger number of doses -- though, again, the lack of testing here means that people really aren't sure if it will work (or if there are serious side effects). That said, as one article notes, a big reason that there hasn't been much testing on this is because treating poor people in Africa just isn't very profitable for the drug companies: “These outbreaks affect the poorest communities on the planet. Although they do create incredible upheaval, they are relatively rare events,” said Daniel Bausch, a medical researcher in the US who works on Ebola and other infectious diseases. “So if you look at the interest of pharmaceutical companies, there is not huge enthusiasm to take an Ebola drug through phase one, two, and three of a trial and make an Ebola vaccine that maybe a few tens of thousands or hundreds of thousands of people will use.” While some may question whether or not Bausch's statement is just from frustration from where he is, Big Pharma execs more or less confirm his claims. Remember that it was just a few months ago that we wrote about Bayer's CEO claiming directly that they make drugs for rich people who can afford it: Bayer Chief Executive Officer Marijn Dekkers called the compulsory license "essentially theft." "We did not develop this medicine for Indians," Dekkers said Dec. 3. "We developed it for western patients who can afford it." As we noted at the time, it's worth comparing that statement to what George Merck, the former President of Merck said many decades ago concerning the pharma industry: We try never to forget that medicine is for the people. It is not for the profits. The profits follow, and if we have remembered that, they have never failed to appear. The better we have remembered it, the larger they have been. It seems that we've come a long way from those days. Mike MasnickThu, Aug 7th 2014 9:03am barack obama, cia, james clapper, redactions, senate intelligence committee, torture report How Redacting 'Just 15%' Can Hide The Details Of CIA's Torture Programfrom the here's-an-example dept As the fight over the redactions on the CIA torture report continue, it's worth reminding folks how you can totally change the story with just a few well placed redactions. Director of National Intelligence has insisted that just 15% was redacted -- though, as Marcy Wheeler points out, the part that's being declassified is just the exec summary, which was written specifically to get around the redactor's ink, since the details are buried in the full report, which will likely remain classified for a while. In other words, the vast, vast majority of the report is still "redacted." Still, even a 15% redaction can do a lot of damage and hide a lot of facts. Senator Mark Udall has made it clear that the existing redactions make parts of the report "incomprehensible" in an effort to hide embarrassing information from the public. Reed Richardson decided to do a fairly simple demonstration to show just how much a 15% redaction can bury key points. He took President Obama's statement about how "we tortured some folks" and redacted "just 15%" of it (though such that if you look closely, you can see what's covered). Notice how the key elements -- the admission of torture -- simply fade away... Richardson told me the whole exercise took less than 10 minutes, demonstrating just how easy it is to distort a report based on a few strategic redactions. andy fyfe, city of london police, copyright, kieron sharp, proxy City Of London Police Arrest Creator Of Anti-Censorship Proxy Service Based On Hollywood's Say Sofrom the out-of-control dept We've been covering the extreme and misinformed attempts by the City of London Police to become Hollywood's personal police force online (despite only having jurisdiction for the one square mile known as the City of London). As we've noted, the City of London Police don't seem to understand internet technology at all, nor do they have any jurisdiction to pull down websites. Yet, despite the total lack of a court order, many clueless registrars see letterhead from a police department and assume everything must be legit, even though this completely violates ICANN policy for domain registrars. Much of this is done in "partnership" with legacy players from the industry, who the police seem to listen to without any skepticism at all. It would be like the NYPD giving control of banking fraud investigations to Goldman Sachs. As we were just pointing out, while the City of London Police seem to think it's "obvious" what is and what is not a "pirate site", oftentimes it's not at all easy to figure that out. That was made clear last week when the organization helping the City of London Police reposted an entire BBC article about their cooperation (soon after our post went up, that company's post disappeared quietly with no notice). And now, TorrentFreak is reporting the City of London Police have "seized" an open proxy service called Immunicity, that was set up as an anti-censorship tool. Not only that, but they've also arrested the operator. The site itself is engaged in no copyright infringement at all. But its entire website has been replaced thanks to a bogus claim by the City of London Police. The police even seem to brag that they're in the bag for the legacy entertainment companies: According to Chief Inspector Andy Fyfe, the arrest is a prime example of a successful partnership between the copyright industry and local law enforcement. “This week’s operation highlights how PIPCU, working in partnership with the creative and advertising industries is targeting every aspect of how copyrighting material is illegally being made available to internet users,” Fyfe says. So, yes, it's the police "partnering" with a legacy industry that has a long and demonstrated history of bogus attacks on new technologies that challenge its business model. And rather than actually view such claims with skepticism, the police lap it up and take down websites without anything even approaching a court order. And to show just how confused they are, the main "industry" representative helping the police here basically admits to the belief that any proxy service must be illegal, because the industry doesn't like it: Commenting on the arrest, FACT Director Kieron Sharp argues that these proxy sites and services are just as illegal as the blocked sites themselves. “Internet users have sought ways to continue to access the sites by getting round the blocking put in place by the ISPs. One of the ways to do this is to use proxy servers. This operation is a major step in tackling those providing such services,” Sharp notes. Of course, based on that reasoning, the very same VPNs that many of us use to protect our internet surfing from surveillance would be equally considered "illegal." Basically anything that challenges the business model of these legacy companies must be illegal and the City of London Police seem to think they can arrest those associated with them. Talk about going way overboard and creating massive chilling effects... copyright, fair use, filtering, fingerprinting, lets play, music, streaming, video games audible magic, twitch Twitch Begins Silencing Videos With Audible Magic: Making Everyone Worse Off, Because Copyright Law Sucksfrom the not-how-to-do-it dept As a whole bunch of people on my Twitter feed are letting me know, video game streaming company Twitch* (read disclosure below!) has announced that it has turned on Audible Magic to begin silencing "Video on Demand" videos that make use of copyright-covered music -- including in-game music. This only covers the video on demand (stored) videos, rather than the live streams that Twitch is probably most well known for. As Twitch's General Counsel Boo Baker explains: We’ve partnered with Audible Magic, which works closely with the recorded music industry, to scan past and future VODs for music owned or controlled by clients of Audible Magic. This includes in-game and ambient music. When music in the Audible Magic database is detected (“Flagged Content”), the affected portion of the VOD will be muted and volume controls for that VOD will be turned off. Additionally, past broadcasts and highlights with Flagged Content are exportable but will remain muted. The Audible Magic technology will scan for third party music in 30 minute blocks — if Audible Magic does not detect its clients’ music, that portion of the VOD will not be muted. If third party audio is detected anywhere in the 30-minute scanned block, the entire 30 minutes will be muted. This, quite reasonably, has many folks up in arms -- with Felicia Day making the point in the most humorous of ways: "So Twitch has become a silent movie company now?" That's because pretty much every video game has some music, and it's unlikely (at best) that users of Twitch cleared that music. In the past, we've seen some similar issues with YouTube's ContentID system flagging similar "Let's Play" videos on that site. Really, what this seems to demonstrate is the failure of the "one-size filter fits all" world that the legacy content industry lives in. The music and movie industries have long demanded such filters, sometimes arguing (though failing) that the current DMCA requires filters like Audible Magic or Content ID. US copyright law currently does not require such a thing, though you know that the industry is pushing hard to get that into any copyright reform bill. And, for all the problems of ContentID (and there are many), it's the kind of solution that you can see often does make sense in a YouTube world (though it has way too many false positives). However, when it comes to Twitch, this kind of solution seems to make no sense at all. People are not going to Twitch to hear music. They're going to see video games. In fact, this kind of solution on Twitch seems inherently counterproductive for just about everyone. These days musicians want their music in video games because it's fantastic for those musicians, both making them money and giving them a ridiculous amount of exposure. There are even entire discussions for indie musicians about how to get their music into video games because it's such an important promotional avenue. Those musicians aren't hurt by Twitch videos. They're hurt by silent Twitch videos, meaning fewer people hear the music. A fairly strong case can be made that in-game and ambient video game music on Twitch is fair use. It seems to be clearly transformative in the same sense that scanning whole books to create a searchable index is transformative fair use or that a book of magazine covers of movie monsters is transformative fair use, or that a book of concert posters is transformative fair use. In each case, while the entire work is used, and the original may have been licensed, the use here is for an entirely different purpose. And yet, with this move, Twitch seems to be inherently stating that fair use for the audio is an afterthought, rather than a key component to what it's doing. Given the various lawsuits against other video sites, it's quite likely that Twitch was facing serious legal pressure to make this move. As we've noted, the music industry has repeatedly made arguments in other lawsuits that such filtering was necessary. Just recently, video site Vimeo announced it, too, was using Audible Magic. And, for years, legacy content players have insisted that using such a tool was required. But it's not. There's nothing in the law that requires a site to do this. And even if you can make the case that it makes sense for general interest user-generated video sites, that's simply not the case with Twitch, whose whole purpose is to stream video from video games. It's yet another case of taking a broad maxim ("video sites should use automated filtering to silence or take down "copyrighted" material") to extreme and ridiculous ends where it doesn't make sense at all. In other words, it's another example of the pressures and risks of today's copyright laws getting in the way of a useful innovation, leading to a result that is actually worse for everyone. From a pure "avoiding liability" position, you could see why Twitch would make this decision. Assuming that some recording industry lawyers were pressuring the company, arguing that continuing to allow those videos without a fingerprinting solution put it at risk of losing its DMCA safe harbors. Because that's the kind of argument an RIAA or an ASCAP might make. And this is really a big part of the problem with copyright law today (and especially statutory damages). Even if Twitch believes that not having such a tool is okay, it might still get taken to court and could face a massive judgment if a court decides the other way. Thus, all of the ridiculous incentives of copyright law today push Twitch to make use of this solution that, without any question, makes everyone worse off. It harms musicians. It harms Twitch. It harms video game fans. It harms Twitch's users. It harms video games. Who does it benefit besides Audible Magic and maybe some lawyers? Copyright remains totally broken. * Disclosure: As you may know, just a couple of weeks ago, Twitch announced that they were providing matching donations for our net neutrality crowdfunding campaign, something we are quite thankful for. That said, the company's support of that effort doesn't change our views at all on this being a dumb move that harms everyone. Glyn MoodyThu, Aug 7th 2014 3:50am copyright, music industry, private copies, uk uk music UK Finally Changes Copyright Law To Allow Private Copies, But Music Industry Says It May Challenge Move In The Courtsfrom the one-way-street dept Three years ago, the UK government published the Hargreaves review of copyright laws in the digital age. As Mike wrote at the time, one of the key recommendations was the introduction of an exception to UK copyright law to allow people to make private copies (pdf): The Review favours a limited private copying exception which corresponds to what consumers are already doing. As rights holders are well aware of consumers' behaviour in this respect, our view is that the benefit of being able to do this is already factored into the price that rights holders are charging. A limited private copying exception which corresponds to the expectations of buyers and sellers of copyright content, and is therefore already priced into the purchase, will by definition not entail a loss for right holders. The Government should introduce an exception to allow individuals to make copies for their own and immediate family's use on different media. Rights holders will be free to pursue whatever compensation the market will provide by taking account of consumers' freedom to act in this way and by setting prices accordingly. As that notes, this is merely legalizing what people are already doing routinely. Moreover, the private copy exception is widely used in other countries. All-in-all, then, this was one of the least-controversial recommendations of the Hargreaves review, and yet it has taken until now to implement it. The Parliamentary debate before its final approval by the House of Lords on 29 July makes an important point about its scope: The scope of the exception contrasts sharply with personal copying exceptions in other EU countries. Such exceptions often allow copies to be shared with family and friends, meaning that people can acquire copies without paying for them, so these countries have mechanisms designed to compensate creators for any sales lost as a result of the exception. Typically, levies are imposed on recording devices and media, which have to be paid whether or not they are used for private copying. French consumers pay a levy of €15 on top of the price of an MP3 player. Copyright levies have been discussed many times on Techdirt. The UK government agrees that they are a terrible idea: The Government do not believe that British consumers would tolerate private copying levies. They are inefficient, bureaucratic and unfair, and disadvantage people who pay for content. That is why the Government's exception is narrow in scope. It will not allow you to give or sell copies to others, and therefore will not lead to lost sales to copyright owners, making the need for a levy unnecessary. That's because the EU Directive allowing national governments to introduce copyright exceptions stipulates that "rightholders should receive fair compensation to compensate them adequately" for such exceptions, but adds: "In certain situations where the prejudice to the rightholder would be minimal, no obligation for payment may arise." This is what the UK government says is the case here. But, of course, the maximalists just hate it when copyright is tweaked -- however slightly -- in favor of the public. As far as they are concerned, copyright change is a one-way street that always results in copyright getting longer and stronger. So the following reaction from UK Music, as reported by Out-law.com, was entirely predictable: "We are disappointed that the private copying exception will be introduced without providing fair compensation for British songwriters, performers and other rights holders within the creative sector. A mechanism for fair compensation is a requirement of European law. In response we are considering our legal options," it added. The new UK copyright exceptions for parody, quotation and private copying will finally come into force on 1 October. Let's hope they don't get taken away again by an industry that seems to think it has a right to even higher monopoly rents. 4th amendment, dread pirate roberts, ross ulbricht, warrants Ross Ulbricht Pulls Out A 4th Amendment Defense For Pretty Much Everythingfrom the that's-not-going-to-work dept Ross "Dread Pirate Roberts" Ulbricht, the alleged mastermind behind The Silk Road dark marketplace, has been trying (and failing) with some creative legal theories. The latest is that his lawyers are basically arguing that almost all of the evidence was collected in ways that violate the 4th Amendment. We're certainly big proponents of the 4th Amendment around these parts, and frequently lament the way the courts and law enforcement have chipped away at it (sometimes with dynamite). However, the arguments here seem like a massive longshot. The key to the argument is that it's somewhat murky how law enforcement found the Silk Road servers, and so Ulbricht is arguing that there was likely a 4th Amendment violation there, spoiling much of the rest of the evidence against him. However, that event – location of the Silk Road Servers – is shrouded in mystery, as the means and manner in which that discovery was accomplished has not been disclosed – indeed, it was not disclosed in any of the applications for warrants or other orders to search and seize ESI and other material in this case. That presents a threshold issue: whether locating the Silk Road Servers was the result of legitimate investigative technique(s), or the product of some unlawful intrusion, digital or otherwise. It also presents the issue whether the magistrate judges who approved the searches and seizures were remiss in not at least satisfying themselves that the information upon which the warrant was based was lawfully obtained and/or reliable. The more specific claims make some interesting points, but are likely to fall flat: In addition, many of the warrants – in particular, those directed at Mr. Ulbricht’s laptop, and his gmail and Facebook accounts – constitute the general warrants abhorred by the Framers, and which led directly to the Fourth Amendment. The wholesale collection and study of Mr. Ulbricht’s entire digital history without limitation – expressly sought in the warrants and granted – represent the very type of indiscriminate rummaging that caused the American colonists so much consternation. The argument, not surprisingly, is relying on the new Supreme Court ruling in the Riley / Wurie cases, about the need for a warrant to search mobile phones. That is an important ruling bringing back certain 4th Amendment protections, but Ulbricht's lawyers are really trying to stretch it to argue that it applies to the warrants issued against him. There may be some real issues in how the feds got access to the Silk Road servers, but to claim that other searches (and even actual warrants) were unconstitutional in light of Riley would require an almost ridiculously broad reading of the Riley ruling. That case involved searches of mobile phones that were on someone's person -- not a coordinated effort to track down someone they believed to be a criminal. I do think there are some real issues with the case against Ulbricht, mainly focused on his liability for the actions done by users of Silk Road, but these kinds of broad attempts to throw anything at the wall are likely to be rejected, and can actually piss off judges who feel that lawyers are just trying to throw up a smoke screen. There are important cases to be had in challenging various digital searches and how the 4th Amendment applies to them, but it's doubtful that this is a particularly good test case.

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More Paula Deen extortionist sentenced to 2 years in prison 3 years ago (TMZ) - The man who allegedly attempted to extort $250,000 from Paula Deen has just been sentenced to 2 years in prison, TMZ has learned.As TMZ reported, a man named Thomas Paculis contacted Deen's attorney claiming he would release "true and damning" information about the celebrity chef's n-word usage if he didn't receive a huge check. The FBI tracked Paculis down and he was subsequently arrested and charged with two counts of extortion.According to TMZ, Paculis struck a plea bargain with prosecutors last month, agreeing to plead guilty to one count of extortion. In exchange, prosecutors dropped the remaining count.Paculis was sentenced today to 2 years in a Georgia prison, plus one year of supervised release and 40 hours community service. He has already been remanded into custody.Interestingly, the court also ordered Paculis to attend substance abuse counseling. TMZ reached out to Paculis' attorney to find out why - so far, no word back.

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3x15 Consequences.jpg Licensing: This image is a screenshot of a copyrighted © television program or a promotional media released into the public domain. As such, the copyright for it is most likely owned by the company or corporation that produced it. Though this image is subject to copyright, it is believed that its use qualifies as Fair use under U.S. fair use laws when used the Buffyverse Wiki, hosted on servers in the United States by Wikia, Inc., because: The image has a brief description that identifies it, and provides attribution to the copyright holder. The image is only being used as the primary means of visual identification of the subject and for informational purposes. As a screenshot, the image is not replaceable by free content; any other image of the work would also be copyrighted, and any version that is not true to the original would be inadequate for identification or critical commentary. The image is significant in illustrating the subject of the article, facilitating critical commentary as it provides an immediate relevance to the reader more capably than the textual description alone. The image is of sufficient resolution for commentary and identification but lower resolution than the original. Copies made from it will be unsuitable as artwork on counterfeit goods or other uses that would compete with the commercial purpose of the original work. The use of the image does not in any way affect the value of the original work or limit the copyright holder's rights or ability to market or sell their product. Any other uses of this image elsewhere might be copyright infringement. For more information, see Fair use. If you are the copyright holder of this recording and you feel that its use here does not fall under "fair use," please contact one of the administrators. Appears on these pages of Consequences "Consequences" is the fifteenth episode of the third season of Buffy the Vampire Slayer, and is... See full list > current21:55, June 19, 2009744 × 576 (36 KB)DJ Doena (Talk | contribs) Graduation Day, Part One Retrieved from "http://buffy.wikia.com/wiki/File:3x15_Consequences.jpg?oldid=71294"

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SDNY Tilts in Favor of De Minimis Defense in Pinball Copyright Case The New York Law Journal reports on an interesting and eminently reasonable decision by Federal District Judge Denny Chin of the Southern District of New York, tossing a silly lawsuit by a pinball machine distributor whose machine appeared briefly in the background of a scene in the 2000 Mel Gibson/Helen Hunt romcom "What Women Want." The Dec. 29 decision in Gottlieb Development LLC v. Paramount Pictures Corp. is good news for studio and network production lawyers, who can now be a bit more confident that allowing brief, trivial appearances of copyrighted images or products in movies and TV shows will not result in liability.As the opinion explains, Gottlieb's "Silver Slugger" machine appears in the background of one 3 1/2 minute scene. It's just a piece of furniture in the background, partially obscured; it's not part of the plot, and no character refers to it. Judge Chin did exactly the right thing: dismissed the case on a 12(b)(6) motion. On the copyright claim, Chin correctly concludes that, though there was technically "copying," it was de minimis and thus not actionable. (For the non-Latin speakers out there: "de minimis" is the court's polite way of saying, "I have 300 cases on my docket, and you're wasting my time with this crap? Take it up with Judge Judy.") Chin distinguished Ringgold v. Black Entertainment T.V. Inc., 126 F.3d 70 (2d Cir. 1997), which rejected a de minimis defense in the case of a poster that appeared in the background of a TV show, on the ground that in Ringgold, the poster at issue appeared for a longer time and actually related to the show's plot.The court also dismissed Gottlieb's trademark claim, which was based on the theory that -- and I kid you not -- "its business reputation will be injured by any association of its products with the actor Mel Gibson and his purported anti-Semitic beliefs." Judge Chin generously labeled this argument "absurd." (I'd love to see the results of the trademark survey that asked "What Women Want" viewers what they thought of the pinball machine that barely appeared 37 minutes into the film. Frankly, I doubt that "Oh, that proved Gottlieb is a bunch of Jew-haters" was a common response.)Two more points:1) It's "de minimis" -- ("is" at the end) -- not "de minimus." This mistake is common (it shows up even in the NY Law Journal article linked to above), but it still drives me insane. So stop it.2) This case disproves once again the copyleft fallacy that studios and record companies unthinkingly and in all cases favor an expansive scope of copyright protection. The fact is that they are extremely frequent copyright defendants, and thus have a very strong interest in making sure that there are reasonable defenses (de minimis, fair use, scenes a faire, etc.) that help them avoid liability. SDNY Tilts in Favor of De Minimis Defense in Pinba... Why the Software Industry's Anti-Piracy Fight Flie... Studios Lose a Round on Selectable Output Control;... YouTube Removing Israeli Military Videos? Floating More IP Czars CNET News Fails Civil Procedure IP Czar: The Copyleft's Own Short List The Looming Apocalypse NY Times: Online Piracy Menaces Pro Sports Who Will Be The New IP Czar? Welcome to Copyrights & Campaigns

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| Larry Winkfield (#2011-0903119 v. Superintendent Reyes Larry Winkfield (#2011-0903119 v. Superintendent Reyes LARRY WINKFIELD (#2011-0903119)v.SUPERINTENDENT REYES, ET AL. Name of Assigned Judge CHARLES P. KOCORAS Sitting Judge if Other or Magistrate Judge than Assigned Judge The plaintiff's motion for leave to proceed in forma pauperis (Doc [3]) is granted. The court authorizes and orders Cook County Jail officials to deduct $6.44 from the plaintiff's account and to continue making monthly deductions in accordance with this order. The clerk shall send a copy of this order to the Supervisor of Inmate Trust Fund Accounts, Cook County Dept. of Corrections Administrative Office, Division V, 2700 S. California, Chicago, Illinois 60608. The clerk is directed to issue summonses for service on the defendants by the U.S. Marshal. The clerk is also directed to send the plaintiff a magistrate judge consent form and filing instructions along with a copy of this order. O [For further details see text below.] Docketing to mail notices. The plaintiff, an inmate in the custody of the Cook County Department of Corrections, has brought this pro se civil rights action pursuant to 42 U.S.C. § 1983. The plaintiff claims that the defendants, two correctional officers at the jail, violated his constitutional rights by acting with deliberate indifference to his safety. More specifically, the plaintiff alleges that one officer refused to heed the plaintiff's report that his life was being threatened, and that a second officer watched fellow inmates brutally attack the plaintiff without intervening. The plaintiff's motion for leave to proceed in forma pauperis is granted. Pursuant to 28 U.S.C. § 1915(b)(1), the plaintiff is assessed an initial partial filing fee of $6.44. The supervisor of inmate trust accounts at the Cook County Jail is authorized and ordered to collect, when funds exist, the partial filing fee from the plaintiff's trust fund account and pay it directly to the Clerk of Court. After payment of the initial partial filing fee, the trust fund officer at the plaintiff's place of confinement is directed to collect monthly payments from the plaintiff's trust fund account in an amount equal to 20% of the preceding month's income credited to the account. Monthly payments collected from the plaintiff's trust fund account shall be forwarded to the Clerk of Court each time the amount in the account exceeds $10 until the full $350 filing fee is paid. All payments shall be sent to the Clerk, United States District Court, attn: Cashier's Desk, 20th Floor, 219 S. Dearborn St., Chicago, Illinois 60604, and shall clearly identify the plaintiff's name and the case number assigned to this action. The Cook County inmate trust account office shall notify transferee authorities of any outstanding balance in the event the plaintiff is transferred from the jail to another correctional facility. Under 28 U.S.C. § 1915A, the court is required to conduct a prompt initial review of prisoner complaints against governmental entities or employees. Here, accepting the plaintiff's factual allegations as true, the court finds that the complaint states colorable causes of action under the Civil Rights Act. If the defendants failed to take reasonable steps in the face of a substantial risk of serious harm, they may liable for damages under 42 U.S.C. § 1983. See, e.g., Wash. v. LaPorte Cnty. Sheriff's Dep't, 306 F.3d 515 (7th Cir. 2002). Furthermore, jail guards would have a constitutional obligation to intervene in a prison fight so long as entering the fray would not expose the officers to risk of serious injury. Peate v. McCann, 294 F.3d 879, 883 (7th Cir. 2002). The plaintiff is unable to identify the John Doe officers who allegedly failed to protect him and maintains that defendants Reyes and Tucker have refused to release the names of the officers in question. In this circuit, the courts recognize a useful fiction to permit pro se litigants an opportunity to discover the identities of those who were personally involved in the alleged actions underlying their complaint. When a plaintiff does not know the names of the persons who actually injured him, the law permits the court, at the pleading stage, to make an inference of responsibility on the part of the defendants' immediate supervisor. See Duncan v. Duckworth, 644 F.2d 653, 655-56 (7th Cir. 1981); see also Billman v. Ind. Dep't of Corrections, 56 F.3d 785, 789-90 (7th Cir. 1995); Donald v. Cook Cnty. Sheriff's Dep't, 95 F.3d 548, 556 (7th Cir. 1996). Consequently, defendants Reyes and Tucker will remain as defendants for the sole purpose of identifying the John Doe defendants. Once the plaintiff has obtained service on Reyes and Tucker, and an attorney has entered an appearance on their behalf, the plaintiff may send defense counsel interrogatories (that is, a list of questions) eliciting information regarding the identity of the defendants who allegedly violated the plaintiff's constitutional rights. See Fed. R. Civ. P. 33. After the plaintiff learns the defendants' identities, he may again ask leave to amend the complaint to substitute their names for those of the John Does. Summonses will then issue for service on the defendants in interest and Reyes and Tucker will be dismissed. The plaintiff is advised that there is a two-year statute of limitations for civil rights actions and should therefore attempt to identify the John Does as soon as possible. See Worthington v. Wilson, 8 F.3d 1253, 1256-57 (7th Cir. 1993); see also Wood v. Worachek, 618 F.2d 1225, 1230 (7th Cr. 1980). The clerk shall issue summonses for service of the complaint on defendants Reyes and Tucker. The United States Marshals Service is appointed to serve the defendants. Any service forms necessary for the plaintiff to complete will be sent by the Marshal as appropriate to serve the defendants with process. The U.S. Marshal is directed to make all reasonable efforts to serve the defendants. If either officer can no longer be found at the work address provided by the plaintiff, the Cook County Department of Corrections shall furnish the Marshal with the defendant's last-known address. The information shall be used only for purposes ofeffectuating service [or for proof of service, should a dispute arise] and any documentation of the address shall be retained only by the Marshal. Address information shall not be maintained in the court file or disclosed by the Marshal. The Marshal is authorized to mail a request for waiver of service to the defendants in the manner prescribed by Federal Rule of Civil Procedure 4(d)(2) before attempting personal service. The plaintiff is instructed to file all future papers concerning this action with the Clerk of Court in care of the Prisoner Correspondent. The plaintiff must provide the court with the original plus a complete judge's copy, including any exhibits, of every document filed. In addition, the plaintiff must send an exact copy of any court filing to the defendants [or to defense counsel, once an attorney has entered an appearance on behalf of the defendants]. Every document filed with the court must include a certificate of service stating to whom exact copies were mailed and the date of mailing. Any paper that is sent directly to the judge or that otherwise fails to comply with these instructions may be disregarded by the court or returned to the plaintiff.

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FREE EDWARD YOUNG This post is taken directly from Nicholas Kristof's Op-Ed piece in the NY Times Sunday. And scroll to the bottom to see a report on the announcement of a major shift in federal drug prosecution policy. This story is shocking and shameful and it is why our government cannot be trusted and why prosecutors cannot be trusted to do the right thing. Everything about this case bespeaks a bureaucratic system that sends its citizens to gulags. Help a Neighbor. Go To Prison: IF you want to understand all that is wrong with America’s criminal justice system, take a look at the nightmare experienced by Edward Young. Young, now 43, was convicted of several burglaries as a young man but then resolved that he would turn his life around. Released from prison in 1996, he married, worked six days a week, and raised four children in Hixson, Tenn. Then a neighbor died, and his widow, Neva Mumpower, asked Young to help sell her husband’s belongings. He later found, mixed in among them, seven shotgun shells, and he put them aside so that his children wouldn’t find them. “He was trying to help me out,” Mumpower told me. “My husband was a pack rat, and I was trying to clear things out.” Then Young became a suspect in burglaries at storage facilities and vehicles in the area, and the police searched his home and found the forgotten shotgun shells as well as some stolen goods. The United States attorney in Chattanooga prosecuted Young under a federal law that bars ex-felons from possessing guns or ammunition. In this case, under the Armed Career Criminal Act, that meant a 15-year minimum sentence. The United States attorney, William Killian, went after Young — even though none of Young’s past crimes involved a gun, even though Young had no shotgun or other weapon to go with the seven shells, and even though, by all accounts, he had no idea that he was violating the law when he helped Mrs. Mumpower sell her husband’s belongings. In May, a federal judge, acknowledging that the case was Dickensian but saying that he had no leeway under the law, sentenced Young to serve a minimum of 15 years in federal prison. It didn’t matter that the local authorities eventually dismissed the burglary charges. Rumpole asks: What kind of government does this to its citizens? Is the country safer? Are the citizens of Chattanooga safer now? What kind of prosecutor does this to a fellow human being and then sleeps at night and can look at himself in the mirror in the morning? This is disgusting and it makes us sick and deeply ashamed of what we all too frequently boast as the best justice system on earth. The best? Its results are Soviet in nature and there is nothing just about it. FACT: The U.S. has 5% of the world's population and 25% of the world's prison population. Since 1980 the U.S. population has grown by a third but the prison population has grown by 800%. AG Holder to announce new policy to reduce federal drug incarcerations: The NY Times reports here that today Attorney General Eric Holder will announce at the ABA annual meeting in San Francisco (something, strangely, we've never been invited to) a major shift in DOJ policy on drug prosecutions: Prosecutors will no longer list the amount of drugs in an indictment, giving them and the court the ability to sidestep minimum mandatory sentences. It's a start, but before we go popping champagne corks, lets see how this plays out. Posted by who filed for the 3rd? Monday, August 12, 2013 10:32:00 AM The facebook killer has a perfect Zimmermanian right to shoot and kill the person who is hitting him. No? Monday, August 12, 2013 12:52:00 PM Great post Rump. Its frightening, but I will not get too excited because the Right Wingers, who helped change the laws decades ago, are still around in the form of the Tea Party and its ilk. I agree with most everything you said, however, I don't think it is fair to make the statement that this is "why prosecutors cannot be trusted to do the right thing".Such a blanket statement is unfair and does not accurately reflect how society should view all prosecutors. You know what else is unfair: empowering 28 year-old ASA's in State Court as one-man grand juries over all non-capital felonies (Art. I, s. 15, Fla. Const.), to rely on mandatory minimum laws to coerce pleas from 97% of criminal defendants. As you were... Tuesday, August 13, 2013 2:32:00 PM Do anyone here know Mr. Young's criminal record? It is VERY, VERY LENGTHY!! Our society is safer with him in prison. Tuesday, August 13, 2013 10:39:00 PM Referring to the above comment from Anonymous, according to the Op Ed, Edward Young has been out of prison since 1996 (17 years). He never raped or killed. I presume that he has not been charged with a crime until this incident. I think we as a society can forgive when a man has proven to be a good citizen for 17 years. Can't we? Wednesday, August 14, 2013 1:32:00 AM What were the stolen goods found in his house? I dont think this guy was so innocent. Stolen goods in his house, video showing him comitting several burglaries. Took his son along on at least one burglary! Questionable why he has shotgun shells in the house. Collecting disability, but still able to steal weighlifting equipment and tires. There may be cases of unduly harsh prison sentances, but this is not one. He belongs in prison. The cost to society will be lower and he will not be badly influencing his children. Wednesday, August 14, 2013 9:28:00 PM GONE READING..... SAO NEWSLETTER A JUDGE SHALL BE PATIENT..... ANOTHER INMATE DIES AT DCJ SECRET PTI...(shhhsssssh) PARDON ME 3RD DCA UPDATE I WANNA BE A FEDERAL JUDGE (in 50 words or less) "DEFENDING DOESN'T MEAN EXCUSING.." TERRY SULLIVAN, JA, HAS PASSED AWAY THE JAIL IS JUMPIN....BULGER GUILTY WALKS AND DISSENTS 39 YEARS AGO YESTERDAY FACEBOOK CONFESSION TRAGEDY AND AGONY FREE LYNNE STEWART KILL THE CRAZY NOTHING, REALLY JUDGE HERSCH PROFILE

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Nigerian House of Representative Passed Freedom of Information Bill The House of Representatives, Thursday , responded to yearnings of the populace to have accountability in our public life as it passed the Freedom of Information Bill, 11 years after it was first introduced in the National Assembly. The passage of the Bill was immediately hailed by the Nigerian Guild of Editors, NGE, and other Civil Society groups which have mounted a sustained campaign to make Nigeria join the league of other civilised societies by passing the Bill The Joint Committee of the House had, Monday, rounded off work on the 34 clauses of the Bill with input from the Open Society Justice Initiative and other media rights groups. Before passing the Bill, the House however deleted clauses 12 and 18. Clause 12 was deleted because the issue that the section seeks to address is already dealt with by Clauses 11 and 21 of this Bill while Clause 18 was deleted because it relates to information that have not been perfected and no public institution can be held responsible for proposals and decisions not perfected. The House at 1.35p.m., yesterday, suspended its Order 7 Rule 2(2), dissolved into a Committee of Whole and passed the 34-clause bill after considering and adopting the recommendations of the joint committees on Information and National Orientation and Justice. The bill with the long title: “An Act to make public records and information more freely available, provide for public access to public access to public records and information, protect public records and information to the extent consistent with the public interest and the protection of personal privacy, protect serving public officers from adverse consequences for disclosing certain kinds of official information without authorisation and establish procedures for the achievement of those purposes and related purposes thereof,” was passed without opposition. The Bill would have been read for the second time, but the Deputy Chairman of the Committee on Rules and Business, Rep.Hashimu Abdullahi, PDP, Kiana-Nassarawa, had the relevant rules suspended in order to have the piece of legislation read the third time. The committee’s consideration covered a myriad of areas such as: the rights of access to records, information and government institutions, request for access, notice about where access to records are requested, transfer of request, extension of time limits, where access is refused, and action for waivers, destruction or falsification of records and where information is not available in discreet form. Areas of waivers in the Act which were treated are International Affairs and Defence, in which case the head of government or public institution may refuse to disclose any record which may be “injurious to the conduct of international affairs and the defence of the Federal Republic of Nigeria.” The bill had earlier been rejected severally by the members of the House as many lawmakers had expressed fears of misuse of the information that may be made available to the media. A key sponsor of the Bill, Rep. Abike Dabiri-Erewa, was elated at the passage of the Bill, as she extolled the efforts of the Civil Society groups in the Country. She said: “With the passage of this bill, we’ve taken a major step and I am happy that the bill has been passed under the leadership of Dimeji Bankole.” The lawmaker hoped that the Senate would hasten to concur. In his remarks at a press briefing, the Minority Leader of the House, Rep. Femi Gbajabiamila said the passage of the Bill was as a result of the persistent struggle of opposition forces to the status quo and a sign that the House is disposed to democracy. His words: “It’s a welcome development and its long overdue. It will stimulate good governance which is predicated on access to information. This shows that the House of Representatives is a listening House.” On his part, spokesman of the House, Rep. Eseme Eyiboh, told reporters that the passage of the bill by the House will bring more responsibility and accountability into governance, adding: “We have now entered into a new regime of responsibility and accountability.” Editors commend Reps for passage of FOI Bill The Nigerian Guild of Editors (NGE) in a statement by its President, Mr. Gbenga Adefaye, said: “The Guild has received with great joy the passage of the Freedom of Information Bill by the House of Representatives. This is the second time within a decade, that the House would respond to our collective hunger for openness and transparency in the administration of the Federal Republic of Nigeria. The FOI law will certainly aid accountability in our public life. “For the Guild, it is remarkable that the leadership of the House of Representatives has kept its words to the Guild, to pass this bill because it agrees that the nation (not just the media) needs it. The Guild will like to note also the concurrence of the leadership of the House that a Freedom of Information Law will make legislation easier as nobody in the Ministries and the MDAs can withhold information that is needed for public good – whether for legislative purposes or basic information and education of the citizenry by the media. “The Guild now calls on the Senate to borrow a leaf from the House of Representatives by passing the Bill early enough for Presidential assent. We are delighted that the Minister of Information and Communication, Mr. Labaran Maku, had during the biennial convention of the Nigerian Guild of Editors in Lagos last month, publicly committed to lobbying for Presidential assent of the Bill once it is passed by the National Assembly. We expect him to honour his words, once the Senate does its patriotic duty of opening up the system for accountable government. “While we wait to see the content of the Bill as passed by the House of Representatives, the Guild would like to put the media on notice that a Freedom of Information Law only helps to foster a more informed and socially responsible press.” A victory for democracy, says NUJ’s President Reacting to the passage of the FOI Bill, President of the Nigeria Union Journalists, NUJ, Mr. Garuba Mohammed, said it was a victory for democracy as it would promote accountability, transparency and good governance. The NUJ President said it would also enhance investigative journalism and the credibility of the Nigerian Media which he said, was the most vibrant in Africa. Saying the passage was a welcome development and a progressive decision by members of the House of Representatives. He noted: “It is a welcome development and a very bold progressive decision by the House of Representatives. As you are aware, the agitations for the FOI have been for a while. It is very progressive. It is a victory for Democracy. It will enhance accountability, transparency and good governance. For the media, it will enhance investigative journalism. We hope the Senate will also pass the bill before the legislative year so that the two Chambers can harmonise it for Presidential asset. I commend the House of Representatives. I have gone through the bill as passed, I think it is fair. As leaders, we will try to ensure that our members do not abuse it because that has been the fear. It will benefit the politicians more. Like I said, it will enhance accountability, transparency and good governance. You know that Nigerian media is the most vibrant in Africa; the FOI will enhance credibility of the media. It is a welcome development.” Socio-Economic Rights and Accountability Project (SERAP) in its statement welcomed the passage of the Freedom of Information Bill by the House of Representatives describing it as “an important development, which will improve the waning fight against corruption in the country.” In a statement signed by SERAP Executive Director Adetokunbo Mumuni, the group said that, “Every elected leader has a responsibility to enable and ensure that the citizens fully enjoy their human right to know, and we applaud the role and leadership of the House of Representatives on the passage of the bill.” The group called on the Senate “to move swiftly to pass the bill, and on President Goodluck Jonathan to sign the bill into law as soon as it is sent to his office. Once the bill finally becomes law, the government will need to establish a plan of action to review, amend or repeal all existing laws such as the Secrecy Act, the Federal Commissions (Privileges and Immunities) Act, the Public Complaints Commission Act, the Evidence Act and the Criminal Code, which contain clauses forbidding the disclosure of official information by public officials. These laws need to be fully consistent with the FOI Act.” Media Rights Agenda The Executive Director of Media Rights Agenda Mr. Edaetan Ojo said the passage of the FOI bill by the House of Representatives is a welcome development after the prolonged delay. He said Nigerians should continue to mount pressure on the Senate which delayed the passage of the same Bill in the last dispensation. The delay was cited by former President Olusegun Obasanjo for not signing the Bill into Law. We have to continue work on the Senate to pass the Bill to enable president sign it into law before the end of this dispensation. Carol Ajie, a Lagos lawyer. In her reaction, Lagos lawyer, Ms Carol Ajie said: “Great, long overdue though, the journey has been tortuous for those who believe in transparency and the rule of law, hence the Senate must speed up its passage and we hope Mr. President will assent to it as soon as it gets to his desk with a view to leaving a lasting legacy for posterity and democracy; unlike the former President who dribbled the civil society through it and let the previous legislative house laboured in vain. President Jonathan must know that this being election time, unlike former President Obasanjo who had ran out his term before the Bill was sent by both Chambers, the more transparent his posturing, the more likely good he is scored by Nigerians. Professor Chidi Odinkalu Professor Chidi Odinkalu of the Open Society for Justice Initiative said “I commend the House for passing the bill after so many years. By passing the bill, the House of Representatives has done the needful and this is a great momentum that will spur the Senate to do the same thing. I therefore urge the senate to pass the bill immediately”. Network of NHRIs in West Africa Saka Azimazi, Executive Secretary, Network of NHRIs in West Africa (NNHRI-WA) said: “The passage of FoI Bill by the House of representatives today (yesterday) marks an important historical victory for all advocates of transparency and accountability. While commending the lawmakers on their re-awakening on this important piece of law, we note that it has taken close to a decade for them to get to this juncture.However, we eagerly await the concurrent passage by the Senate and eventual assent by Mr. President before the change of guards in May 2011.” Bill To Protect Status Of HIV/AIDS Infection Victims In Nigeria Passed By Senate Shagari Calls For Quick Passage of Albinism Bill in Nigeria US Homosexual Lobby Group Pressure Nigeria’s President Not To Sign Anti-Gay Bill Pregnant Stephanie Okereke Visits NASS Abuja For VAPP Bill Passage Tweet

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| Crema v. New Jersey Department of Environmental Protection Crema v. New Jersey Department of Environmental Protection Decided: January 20, 1982. RICHARD CREMA, DONALD MAXWELL, THE SOUTH JERSEY SHELLFISHERMAN'S ASSOCIATION, THE AMERICAN LITTORAL SOCIETY, AND THE SIERRA CLUB, NEW JERSEY CHAPTER, APPELLANTS,v.NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, THE COASTAL AREA REVIEW BOARD AND THE HISTORIC SMITHVILLE DEVELOPMENT COMPANY, RESPONDENTS On appeal from New Jersey Department of Environmental Protection, Division of Coastal Resources and Coastal Area Review Board. Botter, Antell and Furman. The opinion of the court was delivered by Antell, J.A.D. Antell Plaintiffs are commercial shell fishermen and nonprofit corporations respectively concerned with protecting the interests of the commercial shell fishing industry and preservation of the environment. They appeal from a determination of the Division of Coastal Resources (DCR) within the Department of Environmental Protection (DEP) conditionally granting approval for a construction permit under the Coastal Area Facility Review Act, N.J.S.A. 13:19-1 et seq. (CAFRA) to respondent Historic Smithville Development Company (HSDC) in connection with a large-scale development in the vicinity of the Great Bay-Mullica River estuary. DCR's determination was affirmed by the Coastal Area Review Board (CARB) under N.J.S.A. 13:19-13. The conditional character of the permit granted is characterized by the agency as "conceptual" only, allowing of no actual construction until all prescribed statutory standards are satisfied. In substance, plaintiffs contend on this appeal that authority for such conceptual approval is nowhere provided by CAFRA, that the permit was issued in violation of DEP's own regulation whereby the area in question was accorded a low-growth designation, [182 NJSuper Page 448] and that it is basically in conflict with the State's coastal growth management strategy articulated in N.J.S.A. 13:19-1 et seq. and N.J.A.C. 7:7E-1.1 et seq. Plaintiffs further contend that the approval was granted without a foundation of factual findings necessary to assure the preservation of this environmentally sensitive area. The State responds that the necessary safeguards inhere in the condition that no concrete steps in the project may be taken without first satisfying the Department that an adverse impact on the area will not thereby result, and that conceptual approval represents a "factually reasonable and legally correct response to the unique demands placed on the administrative system by the large scale project." On October 9, 1979 HSDC submitted its application for a CAFRA permit. The development proposed would be of a substantial size. It contemplates a 700-room hotel, 6,850 living units, 860,000 square feet of commercial and office space and the eventual introduction of a population of 20,000 people. As the decision under review notes, during a pre-application conference DCR decided that After a public hearing on April 2, 1980 the permit was "conceptually" approved by the DCR in accordance with its written decision of that date. Its issuance had been opposed not only by plaintiffs but by state and federal regulatory agencies such as the Division of Water Resources, the Bureau of Shellfish Control, the Office of Environmental Assessment, the Division of Fish, Game and Wildlife, the United States Fish and Wildlife Service, and the United States Environmental Protection Agency. All expressed grave reservations about the likely environmental impact, particularly as it related to air and water quality and wildlife habitat. Since plaintiffs' appeal was regarded by DEP as raising questions pertaining to matters of policy, it was [182 NJSuper Page 449] referred to CARB for review. From CARB's affirmance thereof plaintiffs appeal. The project site is upstream from the Brigantine National Wildlife Refuge, an area of 20,564 acres dedicated to the preservation and protection of wildlife, birds and saltwater wetlands. It is situated above the Cohansey aquifer and is trisected by several important watercourses which flow either to the Mullica River or directly to the Great Bay, thus forming the Mullica River-Great Bay estuary, one of the last remaining commercially-viable shellfish areas in this part of the State. The Refuge provides a unique habitat for black skimmer, peregrine falcons, osprey, bald eagles, terns and other endangered birds, as well as numerous other threatened species. Two-thirds of the Refuge consist of saltmarsh wetlands, with the remainder comprised of woodlands, meadows, pinestands, oak and other vegetation. It contains 1,600 acres of freshwater impoundment, assuring a unique freshwater habitat for birds and wildlife and serves as a buffer to preserve the quality of the Great Bay. Its character as a particularly fragile ecosystem is underscored by the fact that it has been assigned a low-growth designation by Department regulation. As the decision of the DCR particularly notes, such a designation "is heavily weighted against disturbance of the existing landscape in an area." It further acknowledges that "unless development potential is high and the site's environmental sensitivity is low or medium, no site disturbance or development is acceptable." The nature of the approval granted by the Department is explained in the following language of the DCR decision: This approval is conceptual. It does not give the applicant the right to commence site clearing, preparation, or any other construction activities related to the project beyond the work on the model units released by letter of June 13, 1980 from Director Kinsey. Every parcel of the project will require a complete submission under CAFRA as defined in the CAFRA Procedural Rules and Regulations , (N.J.A.C. 7:7D-2 et seq.), with a normal application review process including the required fact-finding public hearing. This approval, however, encompasses the concept of the development of a Large Scale Planned Residential Development in the proposed location of the [182 NJSuper Page 450] portion of Galloway Township which has a "limited growth region" designation in the Land Area Location policies. Generally, the approval extends to the type of uses proposed and to the size of the proposed project in terms of the maximum number of units to be permitted, the maximum square footage of commercial and office space, and the minimum acreage of open space. In addition, this approval includes support of the general stormwater management plan, water supply plan, and wildlife/vegetation maintenance plan and controls. The approval does not obligate any Department or Agency of the State of New Jersey to approve any parcel or component of the proposed development nor does it imply DEP approval under CAFRA of any subsequent submission for a construction permit application. The groundwater, surface water, traffic and air quality monitoring programs and data reporting specified as conditions to this approval shall be carried out as outlined, for the time periods specified. At some future date, if adverse effects develop which cannot be corrected, the size of the development will have to be restricted below that proposed in the Master Development Plan that is being granted a "conceptual" approval by this CAFRA permit decision. In addition, remedial measures may be required if significant adverse effects develop. The foregoing language is excerpted from what is described by the DCR as a "Decision by the Director Conditionally Approving a CAFRA Permit." But the only "permit" which DEP may issue is that provided under N.J.S.A. 13:19-5 for the construction of a project. Although a construction permit may be conditionally approved under CAFRA, a permit issued on condition that no construction take place is a contradiction in terms. N.J.A.C. 7:7D-2.2 defines "Permit" and "Permit condition" as follows: "Permit" means any legal instrument, constituting permission to construct a facility in the coastal area, that is issued by the commissioner pursuant to N.J.S.A. 13:19-1 et seq. "Permit condition" means a requirement of the permit after issuance, applicable during, and after construction. See, also, N.J.A.C. 7:7D-2.5(b)x, which provides: x. A permit shall be valid authority to commence construction of a facility for two years from the date of issuance of a permit. The division may, upon written request from the permittee, extend such authority for periods up to one year but not to exceed three such extensions. If construction does not commence and continue with this two-year period and no extension is granted, then the permit shall lapse; In order for a permit to be issued under CAFRA, the Commissioner must comply with N.J.S.A. 13:19-10 and 11. N.J.S.A. 13:19-10 provides that the Commissioner may issue the permit only if he finds that the project [182 NJSuper Page 451] a. Conforms with all applicable air, water and radiation emission and effluent standards and all applicable water quality criteria and air quality standards. b. Prevents air emissions and water effluents in excess of the existing dilution, assimilative, and recovery capacities of the air and water environments at the site and within the surrounding region. c. Provides for the handling and disposal of litter, trash, and refuse in such a manner as to minimize adverse environmental effects and the threat to the public health, safety, and welfare. d. Would result in minimal feasible impairment of the regenerative capacity of water aquifers or other ground or surface water supplies. e. Would cause minimal feasible interference with the natural functioning of plant, animal, fish, and human life processes at the site and within the surrounding region. f. Is located or constructed so as to neither endanger human life or property nor otherwise impair the public health, safety, and welfare. g. Would result in minimal practicable degradation of unique or irreplaceable land types, historical or archeological areas, and existing scenic and aesthetic attributes at the site and within the surrounding region. We do not agree that a permit to construct conditional upon no construction taking place until the rigorous and complex criteria of the statute have been satisfied is either expressly or impliedly authorized by the enabling legislation. Our view is supported by N.J.A.C. 7:7D-2.3(c), which makes such approval available only as part of an informal pre-application nonbinding conference with the Department. However, any comments made by the Division pertaining to such preliminary conceptual offerings are by regulation deemed not to "be construed as a decision of the Department." N.J.A.C. 7:7D-2.3(c)(5). The character of the permit under review is materially different from that considered in Public Interest Research Group v. State , 152 N.J. Super. 191 (App.Div.), certif. den. 75 N.J. 538 (1977). Although we there affirmed the issuance of a conditional construction permit, it was only after determining that the Department's finding that the statutory criteria had been basically satisfied was supported by the available evidence. We expressly withheld any suggestion that DEP was "empowered to grant a permit, even a conditional one, without sufficient evidential support in the record." 152 N.J. Super. at 213. Here, [182 NJSuper Page 452] although the permit was granted, it requires applicant to satisfy the legislated requirements at some later time. The fault to be found with the action taken by the agency is that conceptual approval, not being provided for by statute or regulation, is of so indefinite a nature that it is impossible to foretell what inferences may be drawn therefrom when further permit applications are made. As the application gathers momentum through the various stages of approval the likelihood of fresh, vigorous inquiry by the responsible bureaucracy to assure protection of the environment diminishes and becomes increasingly displaced by reliance upon what one official or another regards as "implicit" in the conceptual approval. Approving, as it does, matters of such pervasive importance as "the type of uses proposed . . . the size of the proposed project in terms of the maximum number of units to be permitted, the maximum square footage of commercial and office space, and the minimum acreage of open space," it may well be later construed to imply at least a partial weighing of statutory criteria, foreclosing thorough inquiry and giving direction to DEP's course of action when later applications are submitted. This is the thought expressed by the Office of Environmental Assessment in its memorandum of August 6, 1980, when it said It is our opinion that a conceptual approval of the entire P.U.D. at this time may foreclose on the State's option to limit the extent and density of development in the subsequent phase applications. The ability to assess the actual impacts of this P.U.D. is impaired when one has to review it on such a gross scale. * * * Therefore, it is our recommendation that the conceptual application of the Smithville P.U.D. be denied, with the understanding that each phase of the development may still be submitted and reviewed for compliance with all state regulations and policies and then limited to the appropriate human "carrying capacity" of this area. We do not feel that any approval should be granted which would conceptually give the applicant the right to establish a set population on this parcel of land until it can be definitively demonstrated that the population density and sites of construction are appropriate. We also conclude that the permit approval cannot be sustained for the further reason that the DCR decision of September 8, 1980 is seriously deficient in essential findings. No explanation is offered, for example, as to why the agency approved a [182 NJSuper Page 453] development of such unusual density and intensity in an area which, by the Department's own regulation, contained "large environmentally sensitive areas" in which "only infill development is acceptable." N.J.A.C. 7:7E-6.7(b)4.iii. Although the decision gives recognition to the "intense pressure" for development of this low growth region "[d]ue to the high-growth projections for the Atlantic City/Atlantic County region which resulted from the passing of the Casino Referendum in November 1976," no reasons are given as to why the project could not be situated within Atlantic City or beyond its immediate environs rather than in this protected fragile environment. Such a finding would appear to be required by N.J.S.A. 13:19-7(g). This statutory provision mandates that the applicant's environmental impact statement include a statement of "[a]lternatives to all or any part of the project with reasons for their acceptability or nonacceptability." See Public Interest Research Group v. State , 152 N.J. Super. at 223. Moreover, N.J.S.A. 13:19-10 confines DEP's power to issue a permit to cases where enumerated, specific findings are made regarding the development's impact on the environment. Most of these findings were not and, as the Department itself conceded, could not be made for the reason that water quality impacts were unknown. In our view, the fragility of the environment is so extreme, the consequences of miscalculation so great, and the legislative intent to preserve the environment so clearly stated, that we discern a strong statutory and regulatory presumption disfavoring a permit application for construction in regions with such sensitive characteristics without carefully documented findings as to the nonacceptability of all reasonable alternatives. Finally, because necessary findings were not made, the Department's reliance on the large-scale plan residential rule is misplaced. This rule is contained in N.J.A.C. 7:7E-8.11. Prior to amendment in 1980 it read as follows: 7:7E-8.11 Large scale planned residential development (a) Policy: Large scale, free-standing, planned residential developments, such as planned unit developments, shall be evaluated on a case-by-case basis to [182 NJSuper Page 454] determine the extent that the proposed development carries out the basic coastal policy to concentrate the pattern of development , contributes to regional housing needs, and does not cause significant adverse secondary impacts. (b) Rationale: Large planned communities offer advantages of scale in creating new modes of development and providing housing. Such large projects may, however, detract from or alter appropriate regional patterns of development. [Emphasis supplied.] The rule as amended in 1980 reads: 7:7E-7.2(1) Large-Scale Residential Development 1. Definition Large-scale Residential Developments are free standing, planned developments, which include at least 500 residential dwelling units. They may also include commercial, industrial, and recreational uses. 2. Policy Large-scale Residential Developments are conditionally acceptable, provided that they carry out the basic coastal policy to concentrate the regional pattern of development , contribute to regional housing needs, and do not cause significant adverse secondary impacts. Large-scale Residential Developments need not meet the Land Area Policies, except in the High and Moderate Environmental Sensitivity portions of Limited Growth Regions, where only the roads and sewage criteria will be used in determining if the Development Potential is High, Medium or Low (See Policy 7:7E-5.5(b)). Large planned communities offer advantages of scale in creating new modes of development and providing housing. Such large projects may, however, detract from or alter appropriate regional patterns of development. [Emphasis supplied] Under either the original regulation or in its form as amended in 1980, the rule was inapplicable absent findings that the large-scale development carried out basic coastal policy to concentrate the pattern of development and would not cause significant adverse secondary impacts. We find no such findings to have been made. Apart therefrom, even if the large-scale development rule were invocable, since the developer will be selling parcels of land to outside builders for subdevelopment, there is no assurance that the proposed development in its full postulated magnitude and claimed balance will ever come to fruition or that its anticipated benefits, which are visualized as justification for the threatened environmental harm, will actually be realized. Moreover, we find no assurance that the applicant [182 NJSuper Page 455] will be required to give security for completion of the project and to cure harmful impacts to the environment that may later result. Indeed, it may well be that the applicant will be out of existence or otherwise not answerable for redress when the injurious consequences are discovered.

法律

2016-50/4330/en_head.json.gz/7133

| GAGNON v. UNITED STATES GAGNON v. UNITED STATES GAGNONv.UNITED STATES APPEAL FROM THE COURT OF CLAIMS Fuller, Harlan, Brewer, Brown, White, Peckham, McKenna, Holmes, Day Author: Brown [ 193 U.S. Page 456] MR. JUSTICE BROWN delivered the opinion of the court. This case raises the simple question whether thirty-three years after a judgment naturalizing an alien is alleged to have been rendered but not recorded, or if recorded, the record lost, a common law court has jurisdiction to enter such judgment of naturalization nunc pro tunc, when no entry or memorandum appeared upon the record or files at the time the original judgment is supposed to have been rendered. If there be no jurisdiction to enter such judgment, it may be attacked collaterally. The power to amend its records, to correct mistakes of the clerk or other officer of the court, inadvertencies of counsel, or to supply defects or omissions in the record, even after the lapse of the term, is inherent in courts of justice, and was recognized by this court in In re Wight, 134 U.S. 136; Gonzales v. Cunningham, 164 U.S. 612, 623, and United States v. Vigil, 10 Wall. 423. It is also conferred upon courts of the United States by Rev. Stat. secs. 899, 900 and 901. This power, however, must be distinguished from that discussed by the court in Bronson v. Schulten, 104 U.S. 410, wherein we held that the authority of the court to set aside or modify an existing [ 193 U.S. Page 457] judgment or order ceased with the expiration of the term, and from that time all final judgments and decrees passed beyond its control, and that if such errors existed they could only be corrected by writ of error or appeal to a superior tribunal. An exception was there made of certain mistakes of fact not put in issue or passed upon, such as that a party died before judgment, or was a married woman, or was an infant and no guardian appeared or was appointed, or that there was error in the process through the default of the clerk. In the Federal courts the power to amend is given in general language in the final clause of Rev. Stat. section 954, which declares that such courts "may at any time permit either of the parties to amend any defect in the process or pleadings, upon such conditions as it shall, in its discretion and by its rules, prescribe." As above indicated, however, this power has been restricted to amendments made during the progress of the case, or at least during the continuance of the term in which the judgment is rendered. This power to amend, too, must not be confounded with the power to create. It presupposes an existing record, which is defective by reason of some clerical error or mistake, or the omission or some entry which should have been made during the progress of the case, or by the loss of some document originally filed therein. The difference between creating and amending a record is analogous to that between the construction and repair of a piece of personal property. If a house or vessel, for instance, be burned or otherwise lost, it can only be rebuilt, and the word "repair" is wholly inapplicable to its subsequent reconstruction. The word "repair," as the word "amend," contemplates an existing structure which has become imperfect by reason of the action of the elements, or otherwise. In the cases of vessels particularly, this distinction is one which cannot be ignored, as it lies at the basis of an important diversity of jurisdiction between the common law and maritime courts. The power to recreate a record, no evidence of which exists, [ 193 U.S. Page 458] has been the subject of much discussion in the courts, and the weight of authority is decidedly against the existence of such power. We have examined a large number of authorities upon this point, and while they do not altogether harmonize in their conclusions, the practice in some States being much more rigid than in others, we have found none which supports the contention that a record may be created to take the place of one of which no written memorandum was made or entered at the time the original judgment was supposed to have been rendered. The following cases contain instructive discussions of the principles involved, but an epitome of them would subserve no useful purpose. Bilansky v. Minnesota, 3 Minnesota, 427; Schoonover v. Reed, 65 Indiana, 313; Smith v. Hood & Co., 25 Pa. St. 218; Missouri v. Primm, 61 Missouri, 166; Brown v. Coward, 3 Hill (S. Car.), 4; Lynch v. Reynolds, 69 Kentucky, 547; Coughran v. Gutcheus, 18 Illinois, 390; Frink v. Frink, 43 N.H. 508; Rugg v. Parker, 7 Gray, 172; Balch v. Shaw, 7 Cush. 282. The power of the court to amend existing records is also considered at length in the following cases from the Federal courts: Tilghman v. Werk, 39 Fed. Rep. 680; Whiting v. Equitable Life, 60 Fed. Rep. 197, 200; Odell v. Reynolds, 70 Fed. Rep. 656, 659; Blythe v. Hinckley, 84 Fed. Rep. 228, 244. It may be gathered from these cases that, if a memorandum be entered upon the calendar that a certain document has been filed, such document, if lost, may be supplied by a copy in the hands of counsel; or where a judgment or order has been entered upon the calendar, which does not appear upon the journal, the court may order a new one to be entered nunc pro tunc. In such cases there is often a memorandum of some kind entered upon the calendar, or found in the files, and there is no impropriety in ascertaining the fact even by parol evidence, and supplying the missing portion of the records. But the exercise of a power to recreate a record where no memorandum whatever exists of such record is evidently a dangerous one, and, although such power may have been occasionally [ 193 U.S. Page 459] given by the legislature in cases of overwhelming necessity, as, for instance, by the "lost record act" passed by the general assembly of Illinois after the great fire in Chicago in 1871, (Laws of Illinois, 1871-2, p. 650,) such power has not been hitherto supposed to be inherent in courts of general jurisdiction. As the evidence upon which such restoration is made cannot be inquired into, if the jurisdiction to recreate the record exists, it might well happen that, upon the testimony of a single interested witness, the court would order a new record to be entered after a lapse, as in this case, of over thirty years, and when the judge and clerk have both died, and there was no possibility of contradicting the testimony of such single witness. Additional complications may also be properly referred to in this case in the fact that the declaration of intention was made before another court in another State, and that the territorial court which is alleged to have entered the judgment of naturalization had itself been abolished and a state court substituted in its place. Did the jurisdiction exist to make this order of naturalization, there is nothing to prevent any person from applying to any competent court for a similar judgment of naturalization, or even a judgment for damages, and to have the same entered nunc pro tunc as of any date it would be for his interest to have it rendered. It is true that in this case notice was given to the Attorney General by the petitioner of his proposed application to the court for the restoration of "certain lost records," but if the jurisdiction to enter this judgment nunc pro tunc did not exist, it could not be given by this notice. As there was no competent evidence of the citizenship of the petitioner, there was no error in the action of the court below, and its judgment is therefore

法律

2016-50/4330/en_head.json.gz/7148

326 U.S. 224 - In Re Michael Homethe United States Reports326 U.S. 326 US 224 In Re Michael 326 U.S. 224 90 L.Ed. 30 In re MICHAEL. Argued Oct. 11, 12, 1945. Mr. Robert T. McCracken, of Philadelphia, Pa., for petitioner. Mr. Robert Hitchcock, of Washington, D.C., for respondent. Mr. Justice BLACK delivered the opinion of the Court. A Federal District Court, after a hearing, adjudged that the petitioner was guilty of contempt on findings that he had given 'false and evasive' testimony before a Grand Jury which 'obstructed the said Grand Jury in its inquiry and the due administration of justice.' A sentence of six months imprisonment was imposed. The Circuit Court of Appeals reviewed the evidence, found that the petitioner had not been 'contumacious or obstreperous', had not refused to answer questions, and that his testimony could not be 'fairly characterized as unresponsive in failing to give direct answers to the questions asked him.' But it accepted the District Court's finding that the petitioner's testimony as to relevant facts was false, and concluded that it was of a type tending to block the inquiry and consequently 'an obstruction of the administration of justice' within the meaning of Sec. 268 of the Judicial Code,1 so as to subject petitioner to the District Court's power to punish for contempt. 3 Cir., 146 F.2d 627, 628, 630. We granted certiorari to review this question, 324 U.S. 837, 65 S.Ct. 914, in view of the close similarity of the issues here to those decided in Ex parte Hudgings, 249 U.S. 378, 39 S.Ct. 337, 63 L.Ed. 656, 11 A.L.R. 333, a case in which the District Court was held to have exceeded its contempt power. A brief summary of circumstances leading to the petitioner's conviction will help to focus the issues. The Grand Jury undertook a general investigation of frauds against the United States which led to an inquiry concerning administration of the reorganization of the Central Forging Company under Sec. 77B of the Bankruptcy Act, 11 U.S.C.A. § 207. The petitioner, by appointment of a district judge, had been serving as that company's trustee. While before the Grand Jury he was repeatedly interrogated concerning payments of various amounts made from the bankrupt's assets. He was asked to explain the purposes for which numerous checks had been drawn. After weeks of inquiry in which he and others were interrogated about these matters, the Court, on petition of the prosecution before the Grand Jury, issued a rule to petitioner to show cause why an order should not be made adjudging him in contempt of court for obstructing the investigation. Upon trial by the Court the transcript of petitioner's Grand Jury testimony was offered in evidence. The Court then heard other witnesses on behalf of the prosecution who testified to facts which directly conflicted with the petitioner's explanations before the Grand Jury. The District Court, disbelieving petitioner and believing the other witnesses, made its finding that petitioner's Grand Jury testimony had been false. No witness was offered to indicate that the petitioner in the Grand Jury room had been guilty of misconduct of any kind other than false swearing. And a reading of the evidence persuades us that the Circuit Court of Appeals correctly found that he had directly responded with unequivocal answers.2 These unequivocal answers were clear enough so that if they are shown to be false petitioner would clearly be guilty of perjury. But he could have been indicted for that offense, in which event a jury would have been the proper tribunal to say whether he or other witnesses told the truth. Our question is whether it was proper for the District Court to make its finding on that issue the crucial element in determining its power to try and convict petitioner for contempt. Not very long ago we had occasion to point out that the Act of 1831, 4 Stat. 487, from which Sec. 268 of the Judicial Code derives, represented a deliberate Congressional purpose drastically to curtail the range of conduct which Courts could punish as contempt. Nye v. United States, 313 U.S. 33, 44—48, 61 S.Ct. 810, 813—816, 85 L.Ed. 1172.3 True, the Act of 1831 carries upon its face the purpose to leave the courts ample power to protect the administration of justice against immediate interruption of its business. But the references to that Act's history in the Nye case, supra, reveal a Congressional intent to safeguard constitutional procedures by limiting courts, as Congress is limited in contempt cases, to 'the least possible power adequate to the end proposed.' Anderson v. Dunn, 6 Wheat. 204, 231, 5 L.Ed. 242. The exercise by federal courts of any broader contempt power than this would permit too great inroads on the procedural safeguards of the Bill of Rights, since contempts are summary in their nature, and leave determination of guilt to a judge rather than a jury. It is in this Constitutional setting that we must resolve the issues here raised. All perjured relevant testimony is at war with justice, since it may produce a judgment not resting on truth. Therefore it cannot be denied that it tends to defeat the sole ultimate objective of a trial. It need not necessarily, however, obstruct or halt the judicial process. For the function of trial is to sift the truth from a mass of contradictory evidence, and to do so the fact finding tribunal must hear both truthful and false witnesses. It is in this sense, doubtless, that this Court spoke when it decided that perjury alone does not constitute an 'obstruction' which justifies exertion of the contempt power and that there 'must be added to the essential elements of perjury under the general law the further element of obstruction to the Court in the performance of its duty.' Ex parte Hudgings, supra, 249 U.S. 382, 383, 384, 39 S.Ct. 339, 340, 63 L.Ed. 656, 11 A.L.R. 333. And the Court added 'the presence of that element (obstruction) must clearly be shown in every case where the power to punish for contempt is exerted.' Clark v. United States, 289 U.S. 1, 53 S.Ct. 465, 77 L.Ed. 993, is a case in which the Court found that element 'clearly shown.' In that case, the Court found that a prospective juror had testified falsely in order to qualify despite the fact that she was a partisan who would vote for a verdict of not guilty regardless of evidence of guilt. It is difficult to conceive of a more effective obstruction to the judicial process than a juror who has prejudged the case. For this prevents the very formation of a proper judicial tribunal. As the Court said in the Clark case, 'The doom of mere sterility was on the trial from the beginning.' 289 U.S. at page 11, 53 S.Ct. at page 468, 77 L.Ed. 993. Perjury was not even the basis of the conviction. The Court's opinion makes it clear that the obstruction would have been the same had the partisan plan to thwart justice been carried out without any swearing at all. Of course the mere fact that false swearing is an incident to the obstruction charged does not immunize the culprit from contempt proceedings. Certainly that position offers no support for the present conviction. Here there was, at best, no element except perjury 'clearly shown.' Nor need we consider cases like United States v. Appeal, D.C., 211 F. 495, 496, pressed upon us by the government. For there the Court thought that the testimony of Appel was 'on its mere face, and without inquiring collaterally * * * not a bona fide effort to answer the questions at all.' In the instant case there was collateral inquiry; the testimony of other witnesses was invoked to convince the trial judge that petitioner was a perjurer. Only after determining from their testimony that petitioner had wilfully sworn falsely, did the Court conclude that petitioner 'was blocking the inquiry just as effectively by giving a false answer as refusing to give any at all.' This was the equivalent of saying that for perjury alone a witness may be punished for contempt. Sec. 268 is not an attempt to grant such power. Nor can the conviction be upheld under that part of Sec. 268 which authorizes punishment for contempts which consist of 'the misbehavior of any of the officers of said courts in their official transactions.' While the petitioner was a trustee, and we may assume an officer of the Court within the statutory meaning, he was not engaged in an 'official transaction' as trustee when he testified before the Grand Jury in the course of a general inquiry. Whether he could be punished for contempt for giving perjured testimony in the course of proceedings directly involving administration of the estate is another matter not now before us. The judgments of the Circuit Court of Appeals and the District Court are reversed. Mr. Justice JACKSON took no part in the consideration or decision of this case. Section 268 provides in part that the 'power to punish contempts shall not be construed to extend to any cases except the misbehavior of any person in their presence, or so near thereto as to obstruct the administration of justice, * * * and the disobedience or resistance by any * * * witness, or other person to any lawful writ, process, order, rule, decree, or command of the said courts.' 28 U.S.C.A. § 385. It is true that when petitioner was first asked whether he drew certain checks on specified dates he answered that he could not be sure in view of the number of checks he drew. When the particular checks were more specifically pointed out petitioner did offer explanations, which though they might have been false, nevertheless constituted clearcut answers. See also as to this historical purpose, Nelles and King, Contempt by Publication in the United States, 28 Col.L.Rev. 401 et seq; 525 et seq.; For, The History of Contempt of Court, (1927).

法律

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728 F. 2d 648 - United States v. Wright Contracting Company HomeFederal Reporter, Second Series 728 F.2d. 728 F2d 648 United States v. Wright Contracting Company 728 F.2d 648 1984-1 Trade Cases 65,877 UNITED STATES of America, Appellant,v.WRIGHT CONTRACTING COMPANY, Appellee.UNITED STATES of America, Appellant,v.MID-ATLANTIC PAVING COMPANY, INC., Appellee. Argued Nov. 3, 1983.Decided Feb. 28, 1984. Edward T. Hand, Dept. of Justice, Washington, D.C. (Warren Marcus, Richard A. Small, Dept. of Justice, Philadelphia, Pa., William F. Baxter, Asst. Atty. Gen., John J. Powers, III, Dept. of Justice, Washington, D.C., on brief), for appellant. Leslie A. Vial, Baltimore, Md. (Benjamin R. Civiletti, Washington, D.C., Thomas S. Martin, Venable, Baetjer & Howard, Baltimore, Md., on brief), and James N. Phillips, Baltimore, Md. (Phillips & Sloan, P.A., Baltimore, Md., on brief), for appellees. Before WINTER, Chief Judge, and PHILLIPS, and ERVIN, Circuit Judges. JAMES DICKSON PHILLIPS, Circuit Judge: This appeal arises from separate federal prosecutions for illegal price-fixing and bid-rigging in violation of section 1 of the Sherman Antitrust Act, 15 U.S.C. Sec. 1. In separate actions, the district court sentenced two corporate criminal defendants, Wright Contracting Company and Mid-Atlantic Paving Company, Inc., to pay fines to the U.S. Government. The court then suspended execution of substantial portions of the sentences and placed the defendants on probation conditioned upon each defendant's contributing a specific amount of money to private charitable organizations. The Government appealed, challenging the legality of the sentences imposed, and we consolidated the appeals. On appeal, we conclude that the judgments are appealable under the Criminal Appeals Act, 18 U.S.C. Sec. 3731, and that in each case the district court exceeded its statutory powers by imposing as a condition of probation the payment of a sum of money unrelated to any legally determined loss sustained, to an entity not aggrieved by the offense. We therefore reverse and remand for imposition of proper sentences. * The facts of the cases are not disputed. Wright Contracting Company (Wright), a highway construction company doing business in nine eastern states and the District of Columbia, pleaded guilty to one count of price-fixing in violation of section 1 of the Sherman Antitrust Act, 15 U.S.C. Sec. 1, in March of 1983. The illegal activity occurred in connection with the 1979 bid-rigging of a federal highway project in Maryland. Wright entered a plea agreement with the Government agreeing to pay a fine of $200,000 to the United States. In the event the district court rejected the plea agreement, the Government agreed to recommend a fine of $200,000. The district court rejected the plea agreement, but accepted Wright's guilty plea. Instead of the recommended fine of $200,000, Wright was sentenced to pay a fine of $400,000. Execution of the sentence was suspended except for $50,000, with Wright being placed on probation for three years on the condition that it contribute $175,000 to the Baltimore City Foundation, Inc., Blue Chip-In-Program, a jobs program sponsored by the city of Baltimore. Characterizing the condition imposed on probation as a "program of Corporate Penance" serving the purpose of "deterrence and rehabilitation," the court stated that the program is not restitutional, reparative, or in any way connected with reimbursing anyone for losses sustained as a result of this specific crime. It is instead designed to punish defendant, specifically deter defendant, and generally deter other corporations contemplating similar criminal activity. United States v. Wright Contracting Co., 563 F.Supp. 213, 214 (1983). Mid-Atlantic Paving Company, Inc. (Mid-Atlantic), a company producing liquid bituminous material for use in the construction, repair, and resurfacing of public highways in Maryland and Delaware, pleaded guilty to participation in a conspiracy to allocate and rig bids on contracts for liquid bituminous material purchased by the states of Maryland and Delaware and various Maryland counties in violation of the Sherman Antitrust Act, 15 U.S.C. Sec. 1. Mid-Atlantic, in a plea agreement with the Government, agreed to pay a fine of $40,000. The Government agreed to recommend a fine of $40,000 should the district court reject the plea agreement. Consistent with the course of events in Wright Contracting, the district court declined to accept the plea agreement, but did accept the guilty plea entered by Mid-Atlantic with the consent of the Government. Mid-Atlantic was sentenced to pay a fine of $40,000. Execution of the sentence was then suspended except for $10,000, with Mid-Atlantic being placed on probation for two years on the condition that Mid-Atlantic pay $10,000 to a charitable organization located in Howard or Anne Arundel County, Maryland. The charity was to be recommended by the probation department and approved by the district court. Following the reasoning of the opinion in Wright Contracting, 563 F.Supp. 213, the court asserted in Mid-Atlantic that the charitable contribution would "put back into the immediate local community some of the illegal gains which have been achieved by the corporation from that community, and it would serve as a deterrent as well as a corporate catharsis to help to expiate its corporate guilt." Transcript of sentencing hearing at 23. The Government appeals from the judgments imposing as conditions of probation the payment of sums of money to charitable institutions. At the outset we confront the question of whether the judgments entered by the district court are appealable by the government. We hold that they are appealable under the Criminal Appeals Act, 18 U.S.C. Sec. 3731. As interpreted by the Supreme Court, that Act removed all statutory barriers to government appeals, and permits appeals from any judgment whose reversal or vacation will not result in a new trial violative of double jeopardy rights. United States v. Wilson, 420 U.S. 332, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975); see United States v. Martin Linen Supply Co., 430 U.S. 564, 568, 97 S.Ct. 1349, 1352, 51 L.Ed.2d 642 (1977). Because these appeals do not trigger double jeopardy concerns, we have jurisdiction to entertain them. On the merits, the Government contends that the Probation Act, 18 U.S.C. Sec. 3651, does not authorize a district court to impose as a condition of probation the payment of money to a person or group not aggrieved by the offense, in amounts unrelated to actual losses caused by commission of the criminal offense. The power to suspend sentences and impose probationary conditions, and the limits of that power, are found in the Federal Probation Act, 18 U.S.C. Sec. 3651. In pertinent part, that Act provides:Upon entering a judgment of conviction of any offense not punishable by death or life imprisonment, any court having jurisdiction to try offenses against the United States when satisfied that the ends of justice and the best interest of the public as well as the defendant will be served thereby, may suspend the imposition or execution of sentence and place the defendant on probation for such period and upon such terms and conditions as the court deems best. While on probation and among the conditions thereof, the defendant-- May be required to pay a fine in one or several sums; and May be required to make restitution or reparation to aggrieved parties for actual damages or loss caused by the offense for which conviction was had; and May be required to provide for the support of any persons, for whose support he is legally responsible. Whether the probationary conditions here imposed are legal turns on interpretation of what is concededly an ambiguous element in this statute. The specific interpretive problem is revealed in the parties' opposing contentions. The defendants, seeking to uphold legality, rely upon the general language implying great discretionary latitude that is found in the first paragraph of the quoted portions of the statute. Specifically they urge that the language "may ... place ... on probation for such period and upon such terms and conditions as the court deems best," suggests latitude limited only by general abuse of discretion constraints. Here, they say, there is no abuse of discretion: the conditions' stated purpose, to deter and to punish, lie well within traditional bounds of sentencing discretion. The government, on the other hand, points to the more specific limitations explicit and implicit in the later enumerated conditions involving the payment of sums of money--as fines, as restitution or reparation, or as legally obligated support. When the payment of money is ordered as a condition of probation and the manifest purpose of the condition falls within any of the specified categories, says the government, then it is subject to any limitations expressed in the statutory authorization. Here, the argument runs, the condition imposed manifestly has essentially a restitutive or reparative purpose, albeit an avowedly "symbolic" one designed to deter and punish as well. Since the payment is not ordered to "aggrieved parties" and does not purport to reflect "actual damages or loss caused by the offense," it does not meet the statutory limitations and is illegal in the government's view. As the district court and the parties rightly recognize, this court has not directly addressed the precise issue presented. But we have come very close, and our decisions in several other cases give some guidance. In United States v. Bishop, 537 F.2d 1184 (4th Cir.1976), cert. denied, 429 U.S. 1093, 97 S.Ct. 1105, 51 L.Ed.2d 539 (1977), we held the obvious, that by its very terms the statute does not purport to make the specific examples of permissible conditions--fines, restitution or reparation, and support--an exclusive listing. On that basis we upheld a condition restricting a convicted defendant's gambling and related activities. Notably, no payment of money was involved. In United States v. Arthur, 602 F.2d 660 (4th Cir.), cert. denied, 444 U.S. 992, 100 S.Ct. 524, 62 L.Ed.2d 422 (1979), we gave a broad reading to the statute in a decision which furnishes the strongest direct precedential support for the defendants' position here. In Arthur we upheld the district court's imposition of a condition of probation for a convicted "white-collar" defendant, that the probationer accept full-time employment without salary in a charitable organization. As a general matter, we said, the statute's broad introductory grant of discretion should be considered limited only by the requirement that any condition imposed bear "a reasonable relationship to the treatment of the accused and the protection of the public." Id. at 664. This requirement was met, we thought, by considering the condition in question an acceptable deterrent and a "symbolic form of restitution to the public for having breached the criminal laws." Id. Notably again, the condition did not involve the payment of money. In United States v. Taylor, 305 F.2d 183 (4th Cir.1962); United States v. Vaughn, 636 F.2d 921 (4th Cir.1980); and, most recently, in United States v. McMichael, 699 F.2d 193 (4th Cir.1983), we have considered three conditions of probation involving the payment of money, all avowedly or manifestly for restitutive or reparative purposes. In each we have insisted that where a condition falls within that category, it must meet the special requirements provided for the category, notwithstanding the general introductory grant of broad judicial discretion. In Taylor, we held that a defendant convicted of tax evasion might be subjected to a probationary condition of making restitution to the government, as the "aggrieved party," of all taxes legally determined to be due and collectible, on the basis that these were "actual damages or loss caused by the offense." In Vaughn, we held that this rule did not permit the imposition of a condition of probation requiring a convicted tax evader to reimburse the government for its itemized expenses of investigating the offense. Investigation expenses, we said, were too remote a consequence of the "offense" to be considered "actual damages or loss caused by" it. While the specific categories of conditions authorized by the statute were not meant to be exclusive, the "reimbursement" ordered fell manifestly within the restitutive category, hence was subject to its limitations. Finally, and most recently, in McMichael we again applied the Taylor/Vaughn rule to find appropriate the imposition of a condition that a convicted embezzler make restitution of all sums legally determined to be due the private party victims. Again, we insisted that restitution as a condition of probation must be limited to "actual damages or loss caused," as that amount might be legally determined in the total criminal proceeding, but found that test met on the facts of the case. None of these decisions, as indicated, considered the legality of a condition such as that imposed here: the payment of a sum of money, not legally determined to reflect "actual damages or loss" to a private entity not conceivably a party "aggrieved" by the offense. Unbound by any direct precedent in this circuit, the district court relied, as persuasive authority, upon the Eighth Circuit's decision in United States v. William Anderson Co., 698 F.2d 911 (8th Cir.1982), which upheld a comparable condition. Undoubtedly mindful of the difficulty posed for that view by our "restitutive/reparational" limitation decisions in Taylor, Vaughn, and McMichael, the district court expressly disavowed any restitutive or reparative purpose for the condition and asserted instead a purpose to punish, to deter, and to rehabilitate through the imposed acts of "corporate penance." With all respect for the Eighth Circuit's view and for the district court's understandable effort here to engage in creative sentencing tailored to the special circumstances of "white-collar" corporate defendants guilty of economic depredations against the general public, we cannot uphold the conditions imposed. In the first place, we think that our decisions in Taylor, Vaughn, and McMichael, while not directly on point, effectively preclude their imposition. The district court's disavowal of any reparative or restitutive purpose, presumably made to avoid clash with those decisions, cannot control. If it could, the limitations wisely imposed by the statute upon restitution or reparation as legitimate conditions of probation could always be subverted by a disclaimer. As we did in Vaughn, where the stated purpose was said to be "reimbursement," we must look to the reality that the payment here is reparative or restitutive if it is anything other than purely punitive in purpose.1 If it is purely punitive, the proper vehicle for punishment by the exaction of money is the fine payable to government--an authorized condition under the statute. The payments ordered here obviously do not qualify in that category and are not so asserted. Considering the conditions imposed here as, therefore, restitutive or reparative in essential purpose, they do not meet the requirements of the statute as we have applied it in Taylor, Vaughn and McMichael. The sums involved do not purport to be, and could not be found to be, legally determined amounts of "actual damages or loss caused by the offense" for which defendants were convicted. And the authorized recipients of the payments are obviously not aggrieved parties within contemplation of the statute. Were the interpretive question a completely open one--unguided by our decisions in Taylor, Vaughn, and McMichael--we would, in any event, be persuaded to adopt the reasoning of the Tenth Circuit in United States v. Prescon Corp., 695 F.2d 1236 (10th Cir.1982), leading to the same result we reach here, as opposed to the contrary view adopted by the Eighth Circuit in Anderson. As did the Tenth Circuit, we think that policy considerations support a construction of the statute that imposes a more restricted range of discretion upon sentencing judges when ordering the payment of funds (other than fines) as conditions of probation than when imposing other conditions. Creative sentencing of the kind here undertaken, for example, necessarily involves the court in selecting particular third persons to become beneficiaries of the probationer's assets--presumably acting in some way as "surrogates" for the public as the actually "aggrieved party." Such selections of course carry financial benefits for which there may be quite legitimate rival claimants among potential "surrogates," whether known or unknown to the court. Where the sums imposed for payment are also fixed by the court without reference to any measurable losses or damage, the court exposes itself to possibly justifiable and unanswerable criticisms both in respect of the particular beneficiaries selected and the specific sums awarded them. The danger thereby created, without compensating benefit, for unnecessary involvement of the criminal justice system in peripheral controversy is obvious. This very danger may have informed Congress's decision, when enacting 18 U.S.C. Sec. 3651, to impose specific limitations on all those conditions of probation that involve the payment of funds by convicted defendants. On this basis, we think that the "symbolic restitution" of providing cost-free personal service to a charitable organization that we upheld as a condition of an individual defendant's probation in Arthur is qualitatively different from the symbolic "penance" exacted from the corporate defendants here in the form of substantial payments of money to selected charitable organizations. If Arthur requires distinguishing, this serves to do so for us.2IV The sentences in both cases consolidated on this appeal are vacated; the cases are remanded for re-sentencing in light of this opinion. In re-sentencing, the court may not impose greater fines than $400,000 in No. 83-5125 (Wright) and $40,000 in No. 83-5179 (Mid-Atlantic). VACATED AND REMANDED FOR RESENTENCING. Indeed, the court's specific disavowal of any restitutive or reparative purpose was accompanied by an assertion in the Mid-Atlantic case that the charitable contribution would "put back into the immediate local community some of the illegal gains ... achieved by the [corporate probationer]," manifestly a restitutive purpose By this decision we do not hold that under no circumstances may avowedly restitutive or reparative payments be ordered as valid conditions of probation for persons convicted of crimes causing direct economic damage or loss to the public at large. Taylor, Vaughn, and McMichael simply require that any reparative or restitutive sums ordered paid shall have been "legally determined" to reflect "actual damage or loss" caused by the offense. In this opinion we have held that neither may private charitable organizations be considered proper surrogates for the public at large as a party directly "aggrieved" by a criminal offense within the meaning of the statute. This does not foreclose all possibility that "actual damages" might be legally determined and a proper surrogate identified to act as direct conduit for restitutive payments to the affected public in an appropriate case. That case is not before us

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Retrial Ends in Life for Former Death Row Inmate; Co-Defendant Greg Wright Executed in 2008 Saying "Before you is an innocent man" According to the Dallas Morning News, a retrial has resulted in life in prison for John Adams, a person formerly on Texas death row. The co-defendant in the case, Gregory Wright, was executed in 2008. Wright professed his innocence until his death, he said in his last words that it was John Adams who actually killed the victim. Now, Adams has been removed from death row and given life. But did Texas execute someone who did not kill anyone, namely Greg Wright? You can read more about the case at www.freegregwright.com. Here are Greg Wright's last words: Yes I do. There has been a lot of confusion on who done this. I know you all want closure. Donna had her Christianity in tact when she died. She never went to a drug house. John Adams lied. He went to the police and told them a story. He made deals and sold stuff to keep from going to prison. I left the house, and I left him there. My only act or involvement was not telling on him. John Adams is the one that killed Donna Vick. I took a polygraph and passed. John Adams never volunteered to take one. I have done everything in my power. Donna Vick helped me; she took me off the street. I was a truck driver; my CDL was still active. Donna gave me everything I could ask for. I helped her around the yard. I helped her around the house. She asked if there were anyone else to help. I am a Christian myself, so I told her about John Adam. We picked him up at a dope house. I did not know he was a career criminal. When we got to the house he was jonesin for drugs. He has to go to Dallas. I was in the bathroom when he attacked. I am deaf in one ear and I thought the T.V. was up too loud. I ran in to the bedroom. By the time I came in, when I tried to help her, with first aid, it was too late. The veins were cut on her throat. He stabbed her in her heart, and that's what killed her. I told John Adams, "turn yourself in or hit the high road." I owed him a favor because he pulled someone off my back. I was in a fight downtown. Two or three days later he turned on me. I have done everything to prove my innocence. Before you is an innocent man. I love my famly. I'll be waiting on ya'll. I'm finished talking.From the DMN: The state of Texas will not execute John Wade Adams for the 1997 murder of Donna Vick. He will serve a life sentence instead. In a rare Sunday court session, District Judge Gracie Lewis discharged the jury that had been deliberating Adams' penalty. She ruled that the Dallas County jury was not able to make the life-or-death decision after 27 hours of deliberation over three days. "Our prayers were answered," said Bobbie Adams Satterlee, one of a dozen family and friends who came from Louisiana and Alabama for the retrial of the penalty phase. Adams' guilt was not at issue. He had been tried for stabbing Vick to death and found guilty of capital murder 12 years ago. The only question was whether his death penalty should stand or be reduced to life in prison. Defense attorneys argued his punishment should be life in prison because the original trial jury did not hear evidence about Adams' abusive childhood, evidence that family members presented in a retrial that spanned the last two weeks. Gregory Wright was also convicted of the Vick murder and was executed in 2008. To watch Greg Wright's wife Connie speaking at the 10th Annual March to Abolish the Death Penalty in 2009 click here. She starts speaking around the 2 minute 30 second mark. Screening and Discussion of Award-Winning Document... Video of Ron Carlson Speaking to Houston Media Abo... SADP seeks nominations for the Youth Abolitionist ... Video of Flowers at Waltrip Memorial for Murder Vi... Three Judge All-Republican Review Panel Appointed ... Speaking Out Against the Death Penalty While Honor... Saturday August 21 at 3 PM: First Organizing Meeti... Former Chair of Texas Forensic Science Commission:... Photos From Inside Texas Death Row, Including a Ty... Video from Voice of America: Death Row Inmates Tel... Texas Murder Victim's Wife Did Not Want DA to Seek... More on Greg Wright Who Was Executed in 2008; His ... Retrial Ends in Life for Former Death Row Inmate; ... Paul Burka on the Todd Willingham Case

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Patent Claims Indefinite: No Structure Supports Recited Software Means By Charles Bieneman on November 28, 2012 in Indefiniteness, Section 112, Software Patents The Federal Circuit has held patent claims indefinite under 35 U.S.C. § 112 where the claims recited “means for processing,” but the patent specification failed to disclose any structure that performed the recited means. Eplus, Inc. v. Lawson Software, Nos. 2011-1396, -1456, -1554 (Fed. Cir. Nov. 21, 2012). This case continues a line of Section 112 indefiniteness cases that emphasize the importance of disclosing structures to support recited means in computer-implemented inventions. Certain claims of U.S. Patent Nos. 6,023,683 and 6,505,172 recited “means for processing said requisition to generate purchase orders for said selected matching items.” The District Court had found these claims valid under Section 112, holding that the common Specification of the patents-in-suit disclosed a “a purchase order generation module.” However, the Federal Circuit found no such structure mentioned in the Specification. The Specification’s background section disclosed prior art requisition systems. Another section of the Specification discussed means for generating purchase orders, but did not disclose any corresponding structures for carrying out these means. Yet a third section of the Specification discussed how requisitions could be converted to purchase orders, but provided only a black box in which this function was performed without disclosing any corresponding structure. The Court explained that the patent owner’s argument that one of ordinary skill in the art would have known how to carry out the recited means was the wrong argument. The proper query was whether “one of skill in the art would have understood that disclosure to encompass [the required structure].” (Quoting Aristocrat Techs. Australia Pty Ltd. v. Int’l Game Tech., 521 F.3d 1328, 1333 (Fed. Cir. 2008).) Here, the Court further explained, the Specification did not disclose any structure that is responsible for generating purchase orders. There is no instruction for using a particular piece of hardware, employing a specific source code, or following a particular algorithm. There is therefore nothing in the specification to help cabin the scope of the functional language in the means for processing element: The patentee has in effect claimed everything that generates purchase orders under the sun. The system claims are therefore indefinite. Before it addressed the question of indefiniteness, the Court also held that the defendant had not waived its right to appeal the question of indefiniteness by failing to raise the issue at trial. The defendant had raised the issue in its summary judgment motion, and again in post-trial motions, and appeared to have understood that there was no point in raising the question of indefiniteness at trial because it was purely a matter of law. Based on this record, the Court held that the right to appeal was not waived. This case presented several other interesting issues. The trial court, to enforce discovery rules and avoid delaying trial, had precluded the patent owner from presenting any evidence of damages at trial where it’s economic expert’s methodology was suspect. The Federal Circuit refused to reverse this decision. The Court also upheld the infringement of certain claims, while reversing with respect to certain others. Further, the Federal Circuit declined to allow the fact that the patent owner could not present evidence on damages to influence the scope of the injunction that it obtained. Thus, the Court rejected the defendant’s argument that “the district court should not have enjoined it from servicing and maintaining products sold before the injunction issued.” The Court explained that simply because the patent owner was not allowed to present evidence of damages did not mean that the defendant had been allowed to sell infringing products. View all posts by Charles Bieneman → Medical Screening Method Claims Invalid, Federal Circuit Says Patent Exhaustion Based on Foreign Sales Please subscribe to our newsletter. Email Address :

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Death On The Roads Again Going to Pot Hello Again (updated) Yet More ASBO Idiocy Apocrypha (13) A Professional Job Well Done Judgement Call Some of the many replies to the Fear thread below allude to public concern that victims who defend themselves against attacks or burglaries face a strong possibility of being prosecuted. I am grateful to the LexisNexis site for the following (edited by me) :-The Bill (to change the law on resisting intruders) received early rebuffs Government, signalling it will face a struggle to become law. Under the plan, only those who use "grossly disproportionate force" against an intruder would leave themselves liable to prosecution. At present, the law allows homeowners to use only "reasonable force" in defence of themselves and their homes.A Home Office minister said: "This law is, I'm afraid, just showing off. It is not necessary. A homeowner who is attacked by a criminal has the right to use reasonable force to protect themselves." The Bill's proposer said her Bill would restore the balance between the victim and the intruder. "Innocent people will know that defence of their property will not put them at risk of charges."In an informal trawl of CPS records, only 11 cases of this type were found in the past 15 years. CPS also released examples of cases in which it decided not to prosecute because the force was considered to be "reasonable" self-defence. These were cases in which prosecutions were brought: A man who laid in wait for a burglar in Cheshire, caught him, tied him up, beat him, threw him into a pit and set fire to him. A number of people trespassed on private land to go night-time fishing. They were approached by a man with a shotgun who threatened to shoot them. They ran away but one of the men was shot in the back with 40 shotgun pellets. A householder lay in wait for a burglar who tried to break into his shed and shot him in the back. A householder who disturbed men trying to steal his car peppered them with gunshot. A householder shot a burglar who tried to steal from his shed. The householder had lain in wait and shot him in the back. A householder hit a burglar with a shovel several times, leaving him with brain damage. Two men stabbed an intruder who broke into a house. The widely-reported case of Norfolk farmer Tony Martin, who killed a teenage boy by shooting him in the back as he fled after an attempted burglary at his remote farmhouse. Occupiers of commercial premises chased and stabbed a burglar after he fled. A householder attacked a man trying to steal his car. A householder stabbed an intruder.As for cases in which no prosecution was brought, these included:Robbery at a newsagent's in Greater Manchester. One of the two robbers died after being stabbed by the newsagent. The CPS did not prosecute the newsagent, but prosecuted the surviving robber who was jailed for six years. A householder returned home to find a burglar in his Derbyshire home. There was a struggle during which the burglar hit his head on the driveway and later died. No prosecution of the householder, who was clearly acting in self-defence. Armed robbers threatened a Hertfordshire pub landlord and barmaid with extreme violence. The barmaid escaped, fetched her employer's shotgun and shot at least one of the intruders. The barmaid was not prosecuted. Two burglars entered a house in Lincolnshire armed with a knife and threatened a woman. Her husband overcame one of the burglars and stabbed him. The burglar died. There was no prosecution of the householder but the remaining burglar was convicted. A middle-aged Lancashire woman took a baseball bat off a burglar and hit him over the head, fracturing his skull. The burglar made a complaint, but the CPS refused to prosecute. posted by Bystander Team | 11:43 pm

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Other: Blogroll LinkedIn Home > Blog Email Page Print Unmasking the Real Revolutionaries May 11, 2011Guest Post By Adam Winkler, a constitutional law professor at UCLA School of Law. Tuesday’s oral argument in the U.S. Court of Appeals for the Fourth Circuit unmasked the true revolutionaries in the battle over health care reform. Ever since President Obama’s signature legislative accomplishment was enacted, opponents have taken to the airways decrying the law as a radical attempt to expand the power of the federal government. Never before has Congress regulated “inactivity” and forced citizens to do something like buy health insurance, they have insisted. Of course, it doesn’t take long to find examples of Congress doing just that: forcing people to file tax returns, serve on juries, sign up for the selective service. But those are different, health care’s opponents argued, because none of them required individuals to purchase a product from a private party. When it was pointed out that Congress forced people to purchase firearms and ammunition in the militia acts of 1792, opponents once again came up with a creative answer. That was an exercise of Congress’s Militia Power, not the Commerce Power. Left unanswered was why Congress would have the power to mandate such transactions under any other clause but the Commerce Clause – an especially bewildering distinction given that we’re talking about mandated commercial transactions. The judges on the Fourth Circuit were, indeed, bewildered. They just didn’t understand the opponents’ argument that inactivity was beyond the reach of Congress’s power. In their questions to the advocates, they wondered where this bright new boundary on Congress’s power originated. They noted that the text of the Constitution doesn’t say anything about inactivity limits; rather, it says “Congress shall have Power to make all Laws which shall be necessary and proper for carrying into Execution” each and every one of its powers, including the Commerce Power. They observed that no Supreme Court case has ever held that Congress cannot regulate inactivity; rather, the longstanding precedents say “all means which are appropriate, which are plainly adapted to” legitimate ends are permitted. Health care opponents have no qualms about judges reading into the text of the Constitution words that the framers never imagined and calling into question two-hundred-year-old Supreme Court opinions written by members of the founding generation. The judges in Tuesday’s hearing pushed back, however, wondering why, if the activity/inactivity distinction was so central to the Commerce Clause, didn’t Daniel Webster mention it when he was clarifying the meaning of that provision in the early 1800s? Had they been more direct, they might have asked what happened to that originalism so ballyhooed by those who are now fighting to overturn health care reform. That was, apparently, yesterday’s revolution. When it comes to health care, opponents of health care believe anything goes. They’ve tried promoting state laws declaring the federal law null and void, despite the clear command in the Constitution that federal law is supreme. They’ve tried interstate compacts to escape the mandate, insisting that regardless of longstanding practice such agreements need not be presented to the President for his approval. Further evidence of opponents’ radicalism was reflected in the fact that Virginia was even a party to the dispute in the first place. The judges expressed considerable skepticism that a state can simply pass a law in order to create standing to sue. Of course, nothing in Tuesday’s hearing will put an end to health care opponents’ revolutionary fervor. If the judges uphold the law, the lawyers have already promised to discard with the ordinary process and appeal directly to the Supreme Court, without asking for a rehearing by a larger panel of Fourth Circuit judges. They must be worried that the composition of the Court might change. Or perhaps they realize that the more their argument is discussed and picked apart, the sooner its radicalism will be exposed. Tags: Constitutional Interpretation and Change, Economic, Workplace and Environmental Regulation, Affordable Care Act, Guest Post, health care, Health Care Reform, individual coverage provision, U.S. Court of Appeals for the Fourth Circuit Tweet Home

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Your browser does not support iframes. Read a digital copy of the latest edition of Chiefland Citizen online. Polston named chief justice-elect of Florida -A A +A Thursday, April 12, 2012 at 4:00 am (Updated: April 12, 4:00 am) more CES safety patrollers holding cake auction at CMHS Sabal Trail addresses critics’ concerns Sabal opponents have plenty of fearsmik Work on Sabal Trail natural gas transmission project gearing up TALLAHASSEE – The Florida Supreme Court has unanimously elected Ricky Polston – a man whose roots lie in the Panhandle town of Graceville – to become the state’s 55th chief justice starting July 1. Polston will become only the second chief justice from Jackson County and the first to come from west of the Apalachicola River since 1925. “I am deeply honored by my colleagues’ vote,” said Polston. “And I commit myself to be a faithful steward of this public trust, recognizing that I am a servant to the people of Florida, to the constitution, and to the laws of the land.” Polston served as a Judge of the 1st District Court of Appeal from January 2001 until October 2008, when he left to join the Supreme Court. He received his law degree with high honors from Florida State University in 1986 and also attended FSU as an undergraduate. With his wife, Deborah Ehler Polston, he has been a vocal advocate for children’s causes, especially in promoting the adoption of children from the foster care system. He and his wife raised four children of their own before adopting a sibling set of six brothers. Polston will serve a two-year term and will succeed the current Chief Justice, Charles T. Canady. Polston’s web biography is at: www.floridasupremecourt.org/justices/polston.shtml

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Navy Seals Could Face Year in Prison Over Alleged Punching of Terrorist Suspected of Masterminding Fallujah Murders By Fred Lucas | December 3, 2009 | 7:00 PM EST U.S. troops in Iraq (AP Photo) (CNSNews.com) – The Navy Seals facing court martial for the alleged abuse of a terror suspect arrested for killing four Americans face up to a year in military confinement, discharge for bad conduct, and forfeiture of two-thirds of their pay for a year, if convicted, according to defense attorneys. Further, their attorneys said that the possibilty that they would not be able to cross-examine their clients' accuser would be grounds for dismissing the case. The accuser, Ahmed Hashim Abed, is the alleged architect of the murder of four Blackwater USA security guards in Fallujah, Iraq, in 2004. The bodies of the four Americans were burned and hanged from a bridge for display. The three Navy Seals--Matthew McCabe, Jonathon Keefe, and Julio Huertas--will be arraigned on Monday in Norfolk, Va. They are facing a special court martial--which is equivalent to a misdemeanor charge--and have each denied the allegations of abuse and cover-up. The trial date for McCabe, the Seal charged with the alleged assault, is tentatively set for Jan. 19, 2010, McCabe’s attorney Neal Puckett said. Defense attorneys told CNSNews.com that they are waiting to see the evidence from military prosecutors because it is still under review to determine if it is classified. Even the charges, the only court filings in the case thus far, are still under review. “The government has not handed over anything,” Huertas’ attorney Monica Lombardi told CNSNews.com. “They are now claiming that things are classified, but they are not saying what’s classified and what’s not classified. I filed my discovery request, and they denied it, pending a classification review. … We have no photographs of the alleged injuries. We have no medical reports of these alleged injuries.”U.S. troops in Iraq (AP Photo)Keefe’s attorney Greg McCormack will not speak to the media about the case, his receptionist told CNSNews.com. Attorneys for both McCabe and Huertas said they would insist on cross-examining Abed. The Constitution grants Americans the right to face their accuser at a trial. “If somebody was trying to claim that you assaulted them, but they refused to come into court, what prosecutor in what state would deny you your right to confrontation of the alleged victim?” Lombardi said. When CNSNews.com asked what would happen if the military declined to bring Abed to the United States to testify for security reasons, Lombardi said, “It would be, at that point, we could ask the judge to dismiss the charges.” McCabe, a special operations petty officer, second class, is charged with assaulting the detainee for reportedly punching him in the midsection; with dereliction of duty for failure to safeguard the detainee; and with making a false official statement on the matter. Though news reports differ on whether it was a punch to the gut or a bloody lip, Puckett says the official charge is a punch to the mid-section. Huertas, a special operations petty officer, first class, is charged with dereliction of duty, making a false official statement and impeding an investigation. Keefe, a special operations petty officer, second class, is charged with dereliction of duty and making a false official statement. Under special court-martial rules, all three defendants would face the same maximum penalty, Puckett said, even though the charges against each one deviate slightly. The maximum penalty for the charges would be one year in military confinement, reduction of two-thirds of their pay for a year and discharge from the military for bad conduct. Lombardi said Huertas greatly appreciates the public outpouring of support since the reports first surfaced of the arrest. “My client is extremely grateful for all the support from the American public,” Lombardi said. “He’s a career professional who’s just doing his job. It boosts your morale when you know that you go over there and are doing your job and the American public actually does care about what you’re doing. He’s really humbled by it.” The military first sought non-judicial punishment, called a “captain’s mast.” It would have spared them any chance of imprisonment but would have severely harmed and possibly ended their military careers, Puckett said. “There was some pressure on them to accept a lesser form of punishment,” Puckett said. “That would have meant that some commander had predetermined their guilt and would have punished them in a way that would have ended their careers. They weren’t willing to accept that and felt that it would not be a fair hearing.” They each refused the captain’s mast and opted for a court martial, which is a military trial, to clear their names. The punishment from a court-martial conviction could be greater. Though it was a better option than accepting guilt, Puckett said, such charges should have never been brought. “Forget what the punishment would be, even a conviction would be a federal conviction for these guys,” Puckett said. “A federal conviction alone--even before you consider what punishment they get--is grossly disproportionate to the misconduct that’s alleged. “If we’re talking about the detainee getting punched in the gut by Petty Officer McCabe, given the evil that guy [Abed] is alleged to have wrought on American contractors back in 2004 in Fallujah, it seems that it’s overkill to think that it’s appropriate to send these guys to court martial,” Puckett added. Puckett suspects this was an overreaction by military brass in regards to detainee abuse. “The most obvious speculation to me seems to be that the American military and particular Army commanders, and this was an Army commander, are overly sensitive to allegations of detainee abuse in the wake of Abu Ghraib,” Puckett said. “I think they feel a need to overly punish, overly react to these allegations to keep future ones from happening again.” The alleged punch happened on Sept. 1 when Abed was in captivity. Abed, after his capture, was held at Camp Baharia, a U.S. base outside of Fallujah. He was briefly handed over to Iraqi authorities and then returned to U.S. custody. Another petty officer, not a Navy Seal, reported the alleged abuse, Lombardi said. It then went up the chain of command, and the commanding general ordered the charges. Lombardi believes if there was any abuse, it might have happened on the Iraqi side. “He was turned over to the Iraqi police,” Lombardi said. “He is an Iraqi citizen. Eventually, he’ll go home. Wouldn’t it be a lot better to claim the Americans abused you than the Iraqi police?” Lombardi said there is a legal defense fund for the Seals, and that she is glad the public can see the Seals were doing the right thing. “They were capturing a terrorist that we’ve been searching for, for five years. They did it in a professional manner,” Lombardi said. “When you think you’re doing everything right and you’ve got somebody saying, ‘no, you did it wrong,’ it’s really nice to know everybody is saying, ‘you did it right. You did us a favor. Why are you being punished?’” FollowFred LucasBio | ArchiveMore from Fred Lucas Printer-friendly version

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» CannaBiz DEA's long-awaited rescheduling decision may be 'blessing in disguise' for reformers Cannabiz By Nat Stein @_natstein_ It's possible the result still could be a happy ending. When the "first half of 2016" came and went without a marijuana rescheduling announcement, it became clear the Drug Enforcement Agency didn't feel overly obligated to meet its own self-imposed timeline. But now the DEA has rejected two petitions — one from the governors of Rhode Island and Washington, one from a New Mexico resident — for the removal of cannabis from Schedule I under the Controlled Substances Act. The federal government will continue to consider cannabis as dangerous as heroin, though it will end the monopoly on research-grade cannabis production. Details of the recommendations from the Department of Health and Human Services (HHS), U.S. Food and Drug Administration (FDA) and National Institute on Drug Abuse (NIDA) can be found in the Federal Register, where the DEA posted acting administrator Chuck Rosenberg's written response. He addresses the eight factors behind a substance's scheduling: pharmacological effects; state of scientific knowledge; history; potential for abuse; significance of abuse; risk to public health; liability for dependence; and status as a "gateway drug." In short, the DEA has reasserted marijuana has high potential for abuse, no accepted medical use and is classified appropriately. But the agency acknowledged the "cannabis catch-22": that marijuana is in Schedule I because there's not enough scientific research, but there's not enough scientific research because it's in Schedule I. This is where reformers were tossed a bone: More growers will now be authorized to supply research-grade cannabis to scientists itching to produce better evidence. For decades, the DEA mandated any researcher must source cannabis from a NIDA-licensed grow; there's one in the nation, at the University of Mississippi. That meant insufficient supply, inadequate strain diversity, botched processing, slow delivery and high cost. That blocked studies on the plant's medical benefit. This news isn't clearly good or bad for state-legal patients, consumers, businesses, growers, regulators and government officials. As John Hudak wrote for the Brookings Institute, the "move will certainly disappoint many in the marijuana reform community who hoped that DEA would change marijuana's status," but rescheduling would've been "largely symbolic" — neither the silver bullet nor the death sentence for legal cannabis. According to Hudak's analysis, the decision isn't entirely tone-deaf. "DEA is hyper-aware of [...] societal changes," he wrote, noting that "between the Cole Memos creating a legal space in which cannabis enterprises can operate, the removal of the Public Health Service's duplicative review of marijuana research proposals, and the Treasury Department's efforts to encourage banking access for the cannabis industry or the numerous proposals in Congress seeking reform, the times for marijuana are a-changin'." Ultimately, the announcement amounts to a forward-looking punt. "If marijuana had been rescheduled, a new administration could have been sworn in next January with the idea that the problems facing the marijuana industry and community were 'fixed' and that no further action need be taken," Hudak continued. "However, if come January a new president is sworn in who looks at the drug policy landscape and sees both a system in need of repair and a policy with reforms that can garner bipartisan, bicameral support in Congress, DEA's stubbornness on rescheduling may ultimately become reformers' blessing in disguise." We know the next president should be somewhere on the cannabis-friendly end of the spectrum. Green Party candidate Jill Stein has called for nationwide legalization, as has Libertarian Party candidate Gary Johnson, who was CEO of a medical marijuana business before the campaign. The Marijuana Policy Project endorsed Johnson, praising him for openly discussing his personal use of the federally illegal substance and becoming the highest-ranking public official to advocate for legalization as governor of New Mexico in 1999. Donald Trump called for legalization of all drugs in the 1990s. But last year, when a Washington Post reporter asked him about marijuana, Trump replied, "I think that should be a state issue, state-by-state," before adding that "medical should happen — right? Don't we agree? I think so." He has also called Colorado's full legalization "a real problem." Hillary Clinton has expressed support for rescheduling, leaving legal states alone and encouraging more medical research. So the DEA's decision, though disappointing on its face, may well prove temporary after the November election — regardless of who wins. More CannaBiz » This news isn't clearly good or bad for state-legal patients, consumers, businesses, growers, regulators and government officials. Speaking of... Tags: CannaBiz, drug enforcement agency, marijuana, Hillary Clinton, Donald Trump, politics, elections, health Readers also liked… City to take on cannabis clubs, and more Hemp building material could help survive and prevent destruction More by Nat Stein Industrial hemp seed certified, CSU-Pueblo hosts marijuana research Hickenlooper wants weed money to fund housing Latest in CannaBiz

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Index Previous Next Full text Procedure : 2016/2556(RSP)Document stages in plenarySelect a document: : RC-B8-0173/2016B8-0173/2016B8-0182/2016B8-0184/2016B8-0186/2016B8-0190/2016Texts tabled : Procedure : 2016/2556(RSP)Document stages in plenarySelect a document: : Texts adopted Thursday, 4 February 2016 - Strasbourg Final edition Human rights situation in Crimea, in particular of the Crimean Tatars P8_TA(2016)0043B8-0173, 0182, 0184, 0186 and 0190/2016 European Parliament resolution of 4 February 2016 on the human rights situation in Crimea, in particular of the Crimean Tatars (2016/2556(RSP)) – having regard to its previous resolutions on the Eastern Partnership (EaP), Ukraine, and the Russian Federation, – having regard to the Reports of the Human Rights Assessment Mission on Crimea conducted by the OSCE Office for Democratic Institutions and Human Rights (ODIHR) and the OSCE High Commissioner on National Minorities (HCNM), – having regard to the European Council decisions (of 21 March, 27 June and 16 July 2014) imposing sanctions on the Russian Federation as a follow-up to the illegal annexation of Crimea, – having regard to the ‘Report on the human rights situation in Ukraine – 16 August to 15 November 2015’ of the Office of the United Nations High Commissioner for Human Rights, – having regard to UN General Assembly Resolution 68/262 of 27 March 2014 entitled ‘Territorial integrity of Ukraine’, – having regard to the Freedom House report ‘Freedom in the World 2016’, which assesses the state of political and civic freedoms in illegally annexed Crimea as ‘not free’, – having regard to Rules 135(5) and 123(4) of its Rules of Procedure, A. whereas the Russian Federation has illegally annexed Crimea and Sevastopol and therefore violated international law, including the UN Charter, the Helsinki Final Act, the 1994 Budapest Memorandum and the 1997 Treaty of Friendship, Cooperation and Partnership between the Russian Federation and Ukraine; B. whereas during the illegal annexation of Crimea by the Russian Federation in March 2014 Ukrainians, including Crimean Tatars, and the Ukrainian army showed great courage and loyalty to Ukraine and peacefully opposed the belligerent act of annexation; whereas several international organisations and human rights groups denounce the fact that human rights protection in Crimea has been severely curtailed since the occupation and illegal annexation of the peninsula by the Russian Federation in early 2014; C. whereas targeted abuses have been registered against the Tatar community, the majority of which opposed the Russian takeover and boycotted the so-called referendum on 16 March 2014, particularly through the enforcement of Russia’s vague and overly broad ‘anti-extremist’ legislation to intimidate or silence critics; whereas these abuses include abduction, forced disappearance, violence, torture and extrajudicial killings that the de facto authorities have failed to investigate and prosecute; D. whereas Crimean Tatar leaders, such as Mustafa Dzhemiliev, a member of the Verkhovna Rada of Ukraine, and Refat Chubarov, the Chairman of the Mejlis, were banned from entering Crimea; whereas they are currently allowed to enter, but under threat of arrest; whereas a Russian court has now issued an arrest warrant for Mustafa Dzhemiliev, who earlier spent 15 years in Soviet prisons for his efforts to allow his nation to return to their native land in Crimea; E. whereas all religious communities, including Christian churches independent of Moscow, have had restrictions put on their activities; whereas these difficulties are due to the severe restriction of the freedom of association, expropriations, the non-extension of documents, and regular searches conducted in the remaining premises of these religious organisations; F. whereas individuals who refused to assume Russian citizenship after the annexation experience discrimination and serious difficulties in all areas of political, social and economic life; G. whereas Russia has been restricting access to Crimea for the OSCE, the UN, and the Council of Europe, not to mention human rights NGOs and independent journalists; whereas the lack of access makes human rights monitoring and reporting in Crimea very difficult; H. whereas the entire population of Crimean Tatars, an indigenous people of Crimea, was forcibly deported to other parts of the then USSR in 1944 with no right to return until 1989; whereas on 12 November 2015 the Verkhovna Rada of Ukraine adopted a resolution in which it recognised the deportation of the Crimean Tatars in 1944 as genocide and established 18 May as a Day of Remembrance; 1. Reiterates its strong commitment to the sovereignty and territorial integrity of Ukraine within its internationally recognised borders and to its free and sovereign choice to pursue a European path; recalls its severe condemnation of the illegal annexation by Russia of the Crimean peninsula and the commitment of the EU, its Member States and the international community to implement fully the policy of non-recognition of the illegal annexation of Crimea; highlights also that the restoration of Ukrainian control over the peninsula is one of the prerequisites for re-establishing cooperative relations with the Russian Federation, including the suspension of related sanctions; 2. Strongly condemns the unprecedented levels of human rights abuses perpetrated against Crimean residents, most notably Crimean Tatars, who do not follow the imposed rule of the so-called local authorities, particularly under the pretext of combating extremism or terrorism; 3. Condemns the severe restrictions on the freedoms of expression, association and peaceful assembly, including at traditional commemorative events such as the anniversary of the deportation of the Crimean Tatars by Stalin’s totalitarian Soviet Union regime and cultural gatherings of the Crimean Tatars; stresses that, in line with international law, the Tatars, as an indigenous people of Crimea, have the right to maintain and strengthen their distinct political, legal, economic, social and cultural institutions; calls for respect for the Mejlis as the legitimate representation of the Crimean Tatar community, and for avoidance of any harassment and systematic persecution of its members; expresses concern at the infringement of their property rights and liberties, their intimidation and incarceration, and disrespect of their civic, political and cultural rights; notes with equal concern the restrictive re-registration requirements for media outlets, as well as for civil society organisations; 4. Urges the Russian and the de facto local authorities to investigate effectively, impartially and transparently all cases of disappearances, torture and human rights abuses by the police and paramilitary forces active in the Crimean peninsula since February 2014; 5. Recalls that the Russian Federation as an occupying power has the responsibility to ensure the safety of the whole population and respect for the human, cultural, and religious rights of the indigenous Tatars and all other minorities of Crimea, and to uphold the legal order in Crimea; 6. Recalls that institutions and independent experts from the OSCE, the United Nations and the Council of Europe were fully or partly denied access to the Crimean peninsula, and were therefore impeded from monitoring the human rights situation despite their mandates to pursue such activities in Crimea; 7. Calls on the Russian Federation authorities and the de facto authorities in Crimea, which are bound by international humanitarian law and international human rights law, to grant unimpeded access to Crimea for international institutions and independent experts from the OSCE, the United Nations and the Council of Europe, as well as for any human rights NGOs or news media outlets that wish to visit, assess and report on the situation in Crimea; calls on the Council and the EEAS to put pressure on Russia in this regard; welcomes the decision of the Secretary General of the Council of Europe to send his Special Representative for Human Rights to Crimea, as this was the first visit following the Russian annexation and is expected to provide a fresh assessment of the situation on the ground; looks forward to his findings; stresses that any international presence on the ground should be coordinated with Ukraine; 8. Welcomes the Ukrainian initiative to establish an international negotiation mechanism on the reestablishment of Ukrainian sovereignty over Crimea in the ‘Geneva plus’ format, which should include direct engagement by the EU; calls on Russia to start negotiations with Ukraine and other parties on the de-occupation of Crimea, to lift trade and energy embargos and to revoke the state of emergency in Crimea; 9. Deplores the impediments to Tatar leaders returning to Crimea and their prosecution, as well as the mounting and unacceptable pressure on other members of the Mejlis; deplores also the wrongful closure of the ATR media outlet which has a significant outreach within the Crimean Tatar community; calls on the European Commission to extend the necessary financial assistance required to secure the functioning of this and other media in exile in Ukraine; considers the closing down of Crimean Tatar schools and classes and the restrictions on the use of the language as a serious limitation of the basic rights of the members of the community, as is the fact that the Ukrainian language has been removed from the public sphere; 10. Calls for the preservation of the multicultural environment of Crimea and for full respect for Ukrainian, Tatar and other minority languages and distinctive cultures; 11. Deplores the actions of the de facto administration to hinder the functioning of the Mejlis of the Crimean Tatar People, the highest executive and representative body of the Crimean Tatars, through the closure of its headquarters and seizure of some of its properties and through other acts of intimidation; 12. Condemns the regular crackdowns on the independent media, journalists and civil society activists in Crimea; deplores the forceful passportisation of Ukrainian citizens in Crimea by the Russian Federation; condemns also the de facto authorities’ practice of imposing Russian citizenship on residents of Crimea; 13. Reiterates its support for the EU’s decision to prohibit imports originating from Crimea unless they are accompanied by a certificate of origin from the Ukrainian authorities, as well as for restrictive measures relating to the export of certain goods and technologies, investment, trade and services in Crimea; calls on the Council to continue with these sanctions until the completion of Crimea’s full reintegration into the legal order of Ukraine; 14. Calls on the Russian Federation to investigate all cases of torture of prisoners illegally apprehended in Crimea, to release prisoners such as Oleg Sentsov and Oleksandr Kolchenko, as well as Ahtem Chiigoz, the deputy chairman of the Mejlis, Mustafa Degermendzhi and Ali Asanov who were arrested in Crimea for their peaceful protest against the occupation, and to guarantee their safe return to Ukraine; urges the Russian Federation to end the politically motivated prosecution of dissidents and civic activists; condemns their subsequent transfer to Russia and the forcible attribution of Russian citizenship; 15. Condemns the militarisation of the Crimean peninsula with its significant negative impact on economic and social life, as well as Russia’s threats to deploy nuclear weapons in Crimea, which constitute a significant threat to regional, European and global security; reiterates its appeal for the withdrawal of all Russian forces from Crimea and the eastern Ukraine; 16. Stresses that economic cooperation, as well as the supply of goods and services between Ukraine and the temporarily occupied Crimean peninsula, should be conducted within the legal framework of Ukraine and respected by all sides, thus avoiding any negative consequences for the population living in Crimea; in case of disrespect of such conduct, calls on the authorities to investigate and stop such breaches; 17. Expresses its grave concern regarding the situation of LGBTI people in Crimea, which has substantially worsened following the Russian annexation, and regarding repressive action and threats by the de facto authorities and paramilitary groups; 18. Instructs its President to forward this resolution to the VP/HR, the Council, the Commission, the governments and parliaments of the Member States, the President, Government and Parliament of Ukraine, the Council of Europe, the OSCE, the President, Government and Parliament of the Russian Federation, and the Mejlis of the Crimean Tatar People. Last updated: 6 December 2016Legal notice

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Copyright/Trademarks IP: 6 practical ways to improve your patent strategy in 2012 The new year is the perfect time for improvements as another wave of AIA provisions are set to go into effect By Janelle WaackJanuary 24, 2012 The New Year is a traditional time to reflect on how we can improve ourselves and our businesses. It also is a prime time to revamp your organization’s intellectual property strategy of as another wave of provisions in the Leahy-Smith America Invents Act (AIA) come into effect. Here are six simple and practical resolutions for getting a jump-start on patent reform. 1. Enhance your docketing or file system to track what version of U.S. patent law applies to individual patent applications. AIA does not simply substitute new laws for the old—the U.S. patent system will operate under two sets of laws for many years. AIA defines effective dates, but many provisions are triggered only when a claim in a patent or patent application has a certain effective filing date. For example, post-grant review proceedings go into effect on Sept.16, 2012, but they generally only apply to patents containing a claim with an effective filing date after March 16, 2013. 2. Enhance monitoring of competing patent applications and patents. You can maximize your options by understanding what other patent claims are pending or issuing in your field. For example, after Sept. 16, 2012, third parties can submit prior art in the prosecution of another party's patent application with an explanation of why the prior art is relevant to the claimed invention. Additionally, the new derivation proceedings will go into effect on March 13, 2013, but there are deadlines for initiating such a proceeding based on the publication or issue date of another parties' patent claims. 3. Be ready to use inter partes review to resolve patent disputes. As of Sept. 16, 2012, inter partes reexaminations before the examiners of the Central Reexamination Unit will be replaced with inter partes review before the administrative patent judges of the Patent Trial and Appeal Board. Inter partes review should be a cost-effective alternative or supplement to patent infringement litigation. AIA provided a broad framework for inter partes review, but further details will emerge in the next few months as the USPTO publishes and finalizes its procedural rules. 4. Expedite prosecution of your most important patent applications. Already in effect is an AIA mechanism for patent applicants to speed up the patent process by paying an additional petition fee ($4,800) for prioritized examination. The United States Patent and Trademark Office (USPTO) is chipping away at the backlog of nearly 700,000 patent applications awaiting examination, but non-expedited examination, on average, takes about three years. As of Sept. 16, 2012, the AIA also will prioritize examination of applications important to the national economy or competitiveness. 5. Use supplemental examination to protect patents from allegations of inequitable conduct. After Sept. 16, 2012, patent owners can file for supplemental examination of their own patents based on information that raises a substantial new question of patentability. Unlike ex parte reexamination, the information is not limited to prior art issues. This provision may be particularly useful if information is uncovered in pre-suit review of a patent file or during patent litigation. 6. Plan ahead for conversion to the first-to-file system. The modified first-to-file system will become effective March 16, 2013. Evaluate your invention disclosure system to eliminate delays and ensure your organization has the earliest filing date for your inventions. Also, be aware of the impact of the one-year grace period, and the potential impact in the U.S. and foreign patent systems of publications and other disclosures. « Prev Janelle Waack Janelle Waack is a partner at Novak Druce + Quigg LLP and focuses on interference matters before the United States Patent and Trademark Office Board... Privacy and Data Security Top List of Questions for Legal Experts About Drones The Ninth Circuit Applies Octane Fitness Fees Standard to Trademark Cases Regulatory 3023 Copyright/Trademarks 1258 IP 782 patents 605 patent law 110 America Invents Act 91 United States Patent and Trademark Office 65 Patent Trial and Appeal Board 60 Join the Conversation

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Apple loses request for sales ban of Samsung smartphones Apple was apparently unable to show significant harm from lost sales or saw significant enough damage to its reputation. Apple has lost out on a request for a sales ban on nine Samsung devices – the third time it has made such a request in the United States. It was announced this week how U.S. District Court Judge Lucy Koh rejected Apple’s request regarding the Samsung smartphones, after reviewing the patent dispute case in her San Jose, Calif., courtroom. Apple was apparently unable to show significant harm from lost sales or saw significant enough damage to its reputation, according to news reports. Apple has declined to comment on the decision. Samsung told the news media, “We welcome today’s ruling… We remain committed to providing American consumers with a wide choice of innovative products.” Previously, Apple was able to receive $120 million in damages from Samsung, though it had tried to get $2.2 billion. Samsung, Apple reach patent détente Apple and Samsung team up to fight patent troll Apple and Amazon.com are among most-sued companies for patent infringement In addition, Apple reported last month it sold 35.2 million iPhones in the recent quarter. That works out to a 13 percent jump in sales, according to Bloomberg Businessweek. Apple's reputation "has proved extremely robust" despite the patent infringement by Samsung, Koh said in a ruling quoted by Reuters. "Apple has not demonstrated that it will suffer irreparable harm to its reputation or goodwill as an innovator without an injunction," Koh added in the ruling, Reuters reported. In addition, Koh said Apple had not "satisfied its burden of demonstrating irreparable harm and linking that harm to Samsung's exploitation of any of Apple's three infringed patents,"The Wall Street Journalreported. Meanwhile, Apple and Samsung have decided to drop litigation against each other everywhere except in the United States. Other cases were heard in Australia, Japan, South Korea, Germany, the Netherlands, the United Kingdom, France and Italy. When considering the case, Brett A. Krueger, an IP attorney at Honigman Miller Schwartz and Cohn, said in a statement sent to InsideCounsel, “The smartphone wars between Apple and Samsung waged by leveraging patents demonstrates how intellectual property is an asset that companies can use to fight for market share.” “After the eBay decision, it has been more difficult to get an injunction,” he added. “So, while Apple’s motion for a permanent injunction was denied, they can still pursue damages (e.g., at least a reasonable royalty). The war is not over yet.” There is believed to be a reasonable chance that the U.S. cases could be settled, however, like the foreign cases, but not now, InsideCounsel reported earlier this year. In addition, Mark Lemley, director of Stanford University's law, science and technology program, told the San Jose Mercury News, "Apple wins, and it wins money, but it doesn't get to shut down its competitors or win so much money it can drive them out of business." « Prev Appeals Court Casts Doubts on Smartflash's Patent Win Over Apple Berkeley, MIT Clash Over Right to Profit From Gene-Editing Bonanza In Latest Patent Case, Supreme Court Asks How Much Is Enough for Induced Infringement Patents 1498 Bloomberg 405 Reuters 365 Apple 215 U.S. District Court 113 Samsung 89 eBay 47 Lucy Koh 32 Join the Conversation

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Elizabeth A. Hartnett direct dial: 315.233.8298 email: [email protected] Mackenzie Hughes & Hartnett Investment Advisors LLC Areas of Practice include: Emerging Business Estates, Trusts & Personal Planning Articles and Videos: Tribute Evening 2013 The Humble Will Be Exalted Why I Serve Case Studies: Results for Health Care Businesses Sophisticated Executive Compensation Estate Practice and Elder Law Center: Son of Sam Surrogate Court Proceedings Divorce, Death and Deductions 10/04/2016 — Where Do The Presidential Candidates Stand On Estate Taxes? 03/22/2016 — How Safe is Your Employees’ Personal Information? Employers Must Take Immediate Action. 02/29/2016 — What it Means to be a Trustee – Part 1 Elizabeth A. Hartnett, Esq., CPA, joined Mackenzie Hughes in 2004 as a partner with an emphasis in wealth management services. Her many areas of expertise include family business entities, business tax and succession planning, pre-nuptial and post-nuptial agreements, fiduciary compliance, investment counsel, estate planning, fiduciary services and estate settlement, as well as private foundations, charitable giving and specialty trusts for the private client. Her clients include some of the most prominent individuals, families, business owners, professionals, trustees, executors, guardians, and family charitable trusts and foundations in the region. After earning a Bachelor of Science degree in Accounting from Syracuse University's College of Business Administration, Betsy attended Syracuse University College of Law. She was admitted to the New York State Bar and became a licensed Certified Public Accountant. Betsy also manages investments through our sister firm Mackenzie Hughes & Hartnett Investment Advisors LLC, an Investment Advisory registered with the Securities and Exchange Commission. An active member of several professional associations, Betsy is a fellow of the American College of Trusts and Estates Counsel and the New York Bar Foundation. She is Vice Chair of the Crouse Hospital Board, Vice Chair of The Foundation of the Roman Catholic Diocese of Syracuse, Inc. and past Chair of the Board for Syracuse Stage. She is former Chair of the Trusts and Estates Section of the New York Bar Association. She periodically lectures on wealth management and estates and trusts law topics for the New York State Bar Association and the New York State Society of Certified Public Accountants. Betsy was the honoree at the Crouse Health Foundation Tribute Evening in 2013. As a preeminent attorney in her field, she has authored several legal publications including the New York Practice Guide - Probate and Estate Administration and Legal Commentaries for LexisNexis and was a contributing writer for the Syracuse Law Review's Survey of New York Law and Warren Heaton's on Surrogate's Courts. She has served as an Editorial Advisor of the American College of Trust's and Estates Counsel's Pocket Tax Tables. She has been listed in the Trusts and Estates Section of "Best Lawyers in America" for the past 20 years. She has also been listed in the Estate Planning and Probate section of the New York Super Lawyers Upstate Edition, and was named as one of the 25 Top Women Attorneys in the New York Super Lawyers Upstate Edition In her spare time, Betsy enjoys tennis, golf and playing bridge. She also enjoys spending time with her three children and eight grandchildren. Copyright (C) 2016, Mackenzie Hughes LLP, Attorney Advertising.Prior results do not guarantee a similar outcome.

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Currents - Nov./Dec. 2012 Cover For Hard Copy Message From the Executive Director: Special Focus on Fee-For-Service Employment History of Pay-Per-Session Social Work Practice What Social Workers Are Saying About Fee-For-Service Employment Legal Advocacy for Child Welfare Workers and Same-Sex Couples Call For Nominations for Chapter Elections In Memoriam - James R. Dumpson, PhD. In Memoriam - Dr. Alma Young Rekindling Reform: Health Policy Assistance Requested Special Focus Mental Health Clinics, Facing Financial Pressure, Change the Way Social Workers are Employed Robert Schachter, DSW, LMSW Executive Director, National Association of Social Workers New York City Chapter There are major changes going on in mental health clinics in New York. Funding for clinics has been changed, requiring agencies with clinics to question their very existence, and several are expected to close. Gene Aronowitz, who has worked closely with agencies to anticipate these changes, reports in the article that follows that not-for-profits have estimated losses totaling $80 million. One of the major implications of these funding changes has been cost cutting, primarily in terms of how social workers are employed. Based on what the Chapter has learned, social workers are now being employed in many clinics on a fee-for-service basis, without benefits or leave time. In this newsletter, Currents is focusing on what has brought this form of employment about and identifying some of the implications for clients and social workers as employees. It has been our intention to present a balanced view of what is taking place, reflecting funding pressures on agencies as well as the experience of social workers in these clinics. See inside to read the full feature A Brief (But Explosive) History of Pay-Per-Session Social Work Practice in Mental Health Clinics Eugene Aronowitz, PhD, MSW Eugene Aronowitz has been a management consultant in Community Mental Health over the last 20 years. He has served as the Commissioner of Community Mental Health and Deputy Commissioner of Social Services in Westchester County and as Deputy Director of Public Welfare in Ohio. Mr. Aronowitz has a BA in Education from the University of Delaware, an MSW from New York University, and a PhD from the University of Chicago. Making Sense of Funding Changes for NY State Clinics In early 2010, the New York State Office of Mental Health (OMH) announced its intention to change the regulations for the operation of mental health clinics. The impetus, OMH said, was the threat by the federal government to withdraw financial support for COPS (Comprehensive Outpatient Program Services). See inside to read the full article What Social Workers Are Saying About Fee-For-Service Employment in Mental Health Clinics Chapter members have contacted NASW-NYC expressing their concerns regarding the employment of social workers in mental health clinics. Numerous themes emerged and are listed below. The purpose of creating this list is to identify key challenges and to invite a dialogue addressing clinical practice within the context of stark fiscal realities faced by mental health agencies. See inside to read the full article James R. Dumpson, PhD and Alma Young, EdD See inside to read the full memoriam of James R. Dumpson, PhD and Alma Young, EdD

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Learn More About Criminal Appeals Law in Elmira, New York Homecriminal appeals lawnew yorkelmira Elmira is a city in Chemung County, New York, USA. It is the principal city of the 'Elmira, New York Metropolitan Statistical Area' which encompasses Chemung County, New York. The population was 30,940 at the 2000 census. It is the county seat of Chemung County. The City of Elmira is located in the south-central part of the county, surrounded on three sides by the Town of Elmira. It is in the Southern Tier of New York a short distance north of the Pennsylvania state line. Criminal Appeals Law Lawyers In Elmira New York 630 F2d 981 National State Bank Elizabeth 79-1823 v. Long 79-1824 634 F2d 368 State of North Dakota v. Merchants National Bank and Trust Company Fargo North Dakota Homecriminal appeals lawnew yorkelmira

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Home>Business>LawUnited States and the International Criminal Court Essay Length: 4 pagesSources: 5Subject: Business - LawType: EssayPaper: #36867566 Excerpt from Essay:United States and the International Criminal Court i request writer "jonsmom2" topic: "The United States International Criminal Court." paper reflect research explain U.S. association ICC. Also briefly examine goals ICC, review U.S. attitude joining outline problems U. The United States and the International Criminal Court The ICC (International Criminal Court) was founded in July of the year 2002 on the day that the Rome Statute which is the founding treaty of the ICC came into force. The ICC was therefore established to only prosecute those crimes that are committed after that particular date. The official seat of the court is located in The Hague, Netherlands. However, the proceedings of the court can take place anywhere. It can try individuals for crimes against humanity, genocide and war crimes. The court also has jurisdiction over crimes of aggression though it cannot try for these crimes until the year 2017. It was founded to "bring to justice the perpetrators of the worst crimes known to humankind - war crimes, crimes against humanity, and genocide," Elewa Badar & Karsten, 2008. As of February of 2011, there are 120 countries which are members of the ICC and 32 countries have signed the Rome Statute but not ratified it Fairlie, 2011. The major reason why the U.S. has not joined the ICC is because of conflict between the Rome Statute and the U.S. constitution and until this conflict is resolved the U.S. will never join the ICC. Position of the U.S. On the ICC The U.S. is not a participant in the ICC. The U.S. On the 6th of May, 2002 signed the Rome Statute but it officially withdrew its intention to ratify it. This is the same position that was shared with Israel and Sudan. This was done during the time of the Clinton administration. The Bush administration which succeeded Clinton stated that they had no intention of joining the ICC at the time when it was being founded. The Obama administration which succeeded Bush has been working hard to re-establish a working relationship with the ICC. ADDIN EN.CITE (Bogdan, 2008) The reason why the then President Bill Clinton refused to submit the Rome Statute to the Senate for ratification was because he felt that the U.S. government still needed to perform an in-depth assessment of the functioning of the court Bill Clinton then sent in a note to the Secretary General of the UN which purported that the U.S. would suspend their signature and informed the Secretary General that the U.S. did not have any obligations towards the Rome Statute. As the provisions of the statute go, the U.S. can reengage with the court by simply reactivating their signature to the Rome Statute through writing to the Secretary General of the UN . However, the U.S. would still need to ratify the statute despite reactivating their signature. The U.S. constitution give the president the power to negotiate treaties but the president must then submit the treaty to the U.S. Senate for advice and consent which constitutes ratification. This needs a two-thirds simple majority vote. The senate may submit amendments, reservations and other explanations to the president regarding the treaty before ratification Martinez, 2011. However, once the treaty is ratified, it becomes self-executing meaning it becomes fully binding. The Bush administration did this since they were protecting American citizens from being unfairly treated for any political reasons. However, the Obama Administration stated that it intended to start co-operations with the ICC, this was stated in the year 2009 when the Secretary of State, Hillary Clinton stated that the U.S. would end its hostility towards the ICC. Susan Rice who is the U.S. Ambassador to the UN expressed that the U.S. would support the court's investigations in Sudan Bohien, 2010. This meant that the U.S. is willing to turn their relationship with the ICC from one of hostility to one of positive engagement. However, despite these intentions of improving the relationship between the ICC and the U.S., the U.S. has not stated that it would rejoin the Rome Statute and neither would it ratify the statute O'Keefe, 2011() The U.S. has several reasons for not being party to the ICC. One is the lack of due process. This is where the U.S. criticizes the ICC for absence of jury trials as well as allegations of retrials which are allowed for errors of fact. Another criticism is that…[continue] "United States And The International Criminal Court" (2012, April 13) Retrieved December 10, 2016, from http://www.paperdue.com/essay/united-states-and-the-international-criminal-79211"United States And The International Criminal Court" 13 April 2012. Web.10 December. 2016. <http://www.paperdue.com/essay/united-states-and-the-international-criminal-79211>"United States And The International Criminal Court", 13 April 2012, Accessed.10 December. 2016, http://www.paperdue.com/essay/united-states-and-the-international-criminal-79211 United States Accept Reject International Criminal "..three asymmetric methods that could be used to exploit the Court: (1) misusing the Court's investigative processes, (2) filing questionable or fraudulent complaints, and (3) manipulating mass media (Austin, W. Chadwick, Kolenc and Anthony Barone, 2006, p. 291)." Finally, the issue of how the court might deal with the problem of international terrorism is not well understood (Yarnold, Barbara, 1991). The court's authority to extradite and prosecute terrorists from third world Words: 2465Pages: 6 International Criminal Court Has Not Handled a International Criminal Court has not handled a lot of cases but the ones they have dealt with have been big ones. The assignment being completed within this report asks the author of this response to summarize whether the International Court is handling and discharging its duties properly per its charter and the other question asks the author to provide a sample case/situation and what the outcome of that case was. Charter Words: 977Pages: 3 United States Has the Highest Rate of United States has the highest rate of confinement of prisoners per 100,000 population than any other Western country. Analyze this phenomena and discuss actions that you feel are necessary to combat this problem. The United States currently has the highest incarceration rate of any nation worldwide. For example, greater than 60% of nations have incarceration rates below 150 per 100,000 people (Walmsley, 2003). The United States makes up just about Words: 13726Pages: 50 United States Engaged in a Currently the United States consumes more than 19.6 million barrels of oil per day, which is more than 25% of the world's total oil consumption. Through its isolationist policy agenda, the U.S. government has been able to leverage its military and economic might to control most of oil production in South America. Instead of attempting to restructure the financial infrastructure of South American oil producers such as Panama, Ecuador Words: 3295Pages: 10 Criminal Procedure an Overview of the Criminal Court System Criminal Court System Evolution and History of the Criminal Justice System: When the British first colonized the Americas, they adopted their centuries' old "Royal Privy Council" as a judicial system, as a separate branch of government. Prior to the American Revolution, the individual American colonies all developed and maintained their own criminal (and civil) justice systems with absolutely no uniformity among them, either procedurally or statutorily. More importantly, there was no official method Words: 1555Pages: 6 Wetlands Regulation in USA Stress: Regulation of Wetlands in the United States Regulation of Wetlands in the United States Defining Wetlands and their Value A wetland refers to a place where water covers the soil. A wetland is a saturated land that comprises of swamps or marshes. Lewis defines a wetland as, "an ecosystem that depends on constant or recurrent, shallow inundation or saturation at or near the surface of the substrate" (p.3). He further ascertains that Words: 8001Pages: 30 U S Legal System United States b. Civil -- Civil cases involve disputes between two parties. In these cases the person or entity who files the suit (the plaintiff) claims that the other person or entity (the defendant) has failed to fulfill a legal obligation to the plaintiff. The plaintiff may request the court to require the defendant to either fulfill the obligation or make monetary restitution. III. Federal Court System a. Jurisdiction -- The jurisdiction of federal Words: 580Pages: 2 Read Full Essay

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Pa. woman deemed competent for murder trial YORK (AP) — A central Pennsylvania woman has been deemed competent to stand trial on murder charges in the death of her 2-month-old son. Thirty-one-year-old Heather Almoney of York is charged in York County with first- and third-degree murder in the November 2011 death of Eric Clapper Jr. Prosecutors allege that the child died of lack of food and water. Defense attorneys argued that the child’s parents had mental disabilities. Two psychiatrists agreed that Almoney understood the charges against her and could assist in her defense. Defense attorney Clarence Allen asked Tuesday for time before trial to look into whether the child’s “special needs” contributed to his death. In April, prosecutors dismissed murder charges against 33-year-old Eric Clapper Sr. and added an involuntary manslaughter charge after a competency hearing.

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Investigations & Analysis - Northern Ireland from The Detail TheDetail Justice & Crime "Secret justice" and "justice delayed" in the dock By Chris Moore, Belfast solicitor challenges state use of secret justice / Video A COURT case gets under way today which has the potential to transform how evidence about informants is dealt with by the courts – and the extent to which it is shared with defendants and the public. The planned judicial review involves a miscarriage of justice dating back 20 years, featuring IRA informers including Freddie Scappaticci , a series of closed court hearings, and allegations of criminal behaviour by police officers in the original investigation. However the focus of the action, being taken by solicitor Kevin Winters on behalf of James Martin, is the current stand-off by the Police Ombudsman, Al Hutchinson, who has failed to investigate the case. Mr Winters believes the State and its various agencies have shown no willingness to deal seriously with matters relating to the secret justice in his client’s case nor has the State fulfilled an obligation given in the Court of Appeal nearly three years ago to investigate potential criminal conduct by police officers. “I don’t think there is any will at all on the part of the State,” Mr Winters said, “in general terms to have the necessary apparatus, be it through the courts, be it through various institutions in order to tackle serious issues of intelligence based evidence which has resulted in wrongful convictions or indeed unlawful killings. “That is a matter that is live, is current, is ongoing and is largely unresolved and will take some considerable time to deal with yet. So there is an obligation on the State to make this centre stage and to facilitate a process through the courts that will get the answers.” James Martin, a Belfast man, was convicted in May 1991 along with six others on charges related to the IRA’s false imprisonment and interrogation of Special Branch agent Alexander ‘Sandy’ Lynch. Alexander 'Sandy' Lynch - police agent Mr Lynch was rescued from the Mr Martin’s home in West Belfast in a joint RUC/British Army operation in January 1990. Famously, Sinn Fein’s director of publicity Danny Morrison was one of those found guilty and imprisoned. In January 2009 all seven defendants were acquitted at the Court of Appeal. Kevin Winters believes Mr Martin’s case has special significance. Even though he pleaded guilty, the Criminal Cases Review Commission [CCRC] decided to refer his case to the Court of Appeal. “They [CCRC] examined the case and they felt it was appropriate, notwithstanding the plea of guilty by Mr Martin, that the case then be referred back to the Court of Appeal in Northern Ireland,” said Mr Winters. “So from that point of view that was highly significant and somewhat unusual, it’s not typical to see a case of that nature finding its way back to the courts.“ HOW INTELLIGENCE AND SECRECY DISTORTED THE FIRST TRIAL Winters believes that core to the CCRC’s decision was the role of informers in the case. He says: “Mr Martin’s case relates to matters of intelligence and alleged intelligence-based evidence, so to that end Mr Martin’s case is quite distinct and unique.” At Mr Martin’s trial in 1991, the Special Branch agent ‘Sandy’ Lynch gave evidence and he told the court that Freddie Scappaticci was his principle abductor. Scappaticci’s finger prints were found in a bedroom of the house but he was never prosecuted. And what has subsequently been revealed is that there was certain information not disclosed during the original trial which, had it been made available, would have greatly influenced the court. But whatever that information was, and is, the State is keeping it secret. SECRECY WHICH CONTINUES TO TODAY Even the CCRC referral to the Court of Appeal was cloaked in secrecy. In a news release at the time of its decision, in February 2008, the CCRC said: “The reasons for the referrals have been provided in a confidential annex to the Court of Appeal and the Public Prosecution Service.” That ‘confidential annex’ was a key element in the referral to the Court of Appeal and it was, according to Kevin Winters, crucial to the Court of Appeal decision to acquit all eight defendants. The Appeal Court judges – Lord Chief Justice Brian Kerr and Lord Justices Higgins and Coghlin – spelled out their reasons for acquitting the defendants after reading the ‘secret’ material separately. Their 2009 judgment stated: “Having done so, each of us came independently to the conclusion that the convictions of the appellants could not be regarded as safe and the court duly quashed the convictions.” But the Court did not disclose what it was in the CCRC’s confidential papers that brought them to this conclusion…although initially the court did consider revealing the details: “Having received submissions from the parties as to the nature of the judgment that should be given, we indicated that we were minded to deliver an ‘open’ decision since, in our view, there was nothing about the content of the annexures which, on its face, would infringe the public interest or the interests of justice if the information that had led us to quash the convictions was disclosed. “At the request of the Crown, however, we agreed to hear an ex parte application [where the defence is excluded] that a ‘closed’ judgment (i.e. one in which the reasons for quashing the convictions are not explicitly stated) should be given. Two private hearings took place. As a consequence of material and information received by us in the course of those hearings, we have concluded that it is not possible for us to disclose all of the reasons that led to the quashing of the convictions.” Danny Morrison - A miscarriage of justice Whilst Kevin Winters, his client James Martin and all the others welcomed the acquittals, there was concern over the way the matter was dealt with in court. It was quite unique, according to Mr Winters. It was like saying, ‘We find this man not guilty but we don’t know why’. He says: “The courts in the original trial did not have access to some serious evidential material of an intelligence nature. “That material was at the core of the Court of Appeal proceedings following the CCRC referral. The Court of Appeal dealt with the case and whilst indicating that they were of a view that, that material which was included in a confidential annex, they took the preliminary view that there was nothing which would prevent making that available to the applicant to the appellant. “But after a series of representations from the prosecution resulting in at least two private hearings, the court took the view that it would not order the release of that sensitive intelligence material and, in fact, directed that there be an alternative disposal to dealing with issues of concern in relation to that intelligence material. And, in particular, focusing on concern about alleged criminality on the part of investigating police.” ROADBLOCKS TO JUSTICE TODAY Winters’ last comment is a reference to an undertaking given in the Court of Appeal by the Director of Public Prosecutions. The court ruled that information directly relevant at the original trial had not been made available to the Director of Public Prosecutions when he made the decision to go ahead with the case. The Appeal Court expressed the opinion that, had this information been made available to the appellants, the case would not have proceeded. But the final paragraph of the Court ruling contains the crucial undertaking to the court from the Director of Public Prosecutions: “We wish to record that this court has been informed that, upon the conclusion of this appeal, the Director of Public Prosecutions will exercise his powers under section 35 (5) of the Justice (Northern Ireland) Act 2002 to request the Chief Constable of the Police Service for Northern Ireland to obtain and provide to the Director information relating to certain matters which arise from the report of the Criminal Cases Review Commission. “In the estimation of the Director, these matters require to be investigated as they may involve the commission of offences contrary to the law of Northern Ireland.” The Detail understands from sources close to the Public Prosecution Service that the Director met that obligation and referred the matter to the Chief Constable of the PSNI. The PSNI has told The Detail that it passed the case on to the Police Ombudsman for investigation. Ever since then, according to Kevin Winters, there has been absolutely no progress…no investigation. He said it was as if the State was deliberately delaying the investigation because there was no taste to investigate the police officers linked to the original 1991 court case. Mr Winters said: “I have been writing for some considerable time now to the authorities – the PPS and the PSNI take the view it is not their function and they have been in a position where they have simply left the matter in the hands of the Ombudsman and if you like we have had to drag the case and make it centre stage in the courts.” The Ombudsman, meanwhile, informed Kevin Winters that he had no budget to investigate Mr Martin’s ‘historic legacy case’. In correspondence with the Department of Justice, Mr Winters was informed that there was no budget for the Police Ombudsman because the Ombudsman had not put forward a business plan. Then on September 6th this year, Kevin Winters was told by the Department of Justice that it had now received a funding business plan from the Ombudsman. WHAT THE NEW CASE AIMS TO DO But by then Kevin Winters had run out of patience. He is proceeding with today’s application for leave for a judicial review on the grounds that the Police Ombudsman Al Hutchinson has failed in his duty to investigate the police officer linked to Mr Martin’s original trial in 1991. It is contended that Mr Hutchinson unlawfully failed to investigate Mr Martin’s criminal complaint against the police and had misdirected himself by characterising the matter as an ‘historic legacy case.’ This decision was perverse, according to Mr Martin’s legal submission seeking the judicial review. The current status of the Martin case is unprecedented, according to Mr Winters. He said James Martin had a successful appeal following the referral by the CCRC but was not told why he was being acquitted. “To my mind that smacks of secret justice,” said Mr Winters. “But secret justice is not good because the person before the court doesn’t have access to the reasons why he’s been acquitted. That’s not a good precedent and it is a matter of concern that still is unresolved and against that background we invited the court to have the case re-listed and the court facilitated us with that and indicated that they were minded to have the case listed again.” The house where Alexander Lynch was being held captive by the IRA The Detail has confirmed with the Northern Ireland Courts Service that James Martin’s case is relisted for mention at the Court of Appeal on November 11th along with another case against him being referred to the court by the CCRC. This new referral by the CCRC involves the false imprisonment of another Republican informer Joe Fenton who was held for interrogation at Mr Martin’s house before being shot dead by the IRA in 1989. Kevin Winters says James Martin’s case is important in that it could be the springboard for many other similar cases involving intelligence and intelligence gathering information. But he recognises that the PPS may often have to consider the risk to life when considering intelligence material. He said: “Intelligence gathering … it’s a sensitive and a difficult matter and there are instances when the State quite rightly are entitled to make various applications to prevent release but it is not at a cost of a complete blanket ban on the release of such information. There has to be an element of discretion and proportionality and fairness.” Mr Winters said there was a worrying development at Westminster this week with a bill that seeks to further extend the parameters of ‘secret justice’ not just to courts but to tribunals as well. Aside from the civil courts, the proposals would cover immigration panels and coroner’s courts. British Justice Secretary Kenneth Clarke introduced the proposals in the House of Commons during an evening when the House was poorly attended and when there was little opposition. The move was prompted by American anger over a Court of Appeal ruling earlier this year which resulted in a summary of CIA intelligence material being released. That intelligence supported the claim by a British citizen, Binyam Mohamed who had been held in Guantanamo Bay for five years, that British intelligence officers knew about the torture of terrorist suspects. This move by the British government to create more secrecy in legal matters is the diametric opposite of the targets being set at Kevin Winters offices in Belfast. He says he is up for the fight. "Secret justice" and "Justice delayed" in the dock Northern Ireland prison reform - officially as successful as police reform, with just one difference New stories first. About The Detail The Detail, 2nd Floor Callender House 58-60 Upper Arthur Street
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What is an Honorary Trust? When Leona Helmsley, the notorious hotel and real estate owner, and millionaire, died in 2007, one of the stipulations of her will was the establishment of 12 million US Dollar (USD) trust for the care of her Maltese dog, Trouble. Lots of people commented after hearing her will that it wouldn’t have been a bad day to be a dog. In particular, her two children who were cut out of her will may have felt the sting of inheriting nothing from her, while a dog sat pretty on an exorbitant honorary trust. An honorary trust is a fund established, usually in a will, for a non-human or non-corporate entity. In most cases, people establish an honorary trust for a surviving pet or for the purpose of erecting a monument. There are limits as to where and when you can establish an honorary trust, and not all states accept these trusts as legal. As the death of Helmsley implies, clearly New York accepts certain honorary trusts, and people may have a difficult time trying to contest a will with trusts of this nature. If the case exists that the trust is established in a state where it is illegal, the money reverts back to the original estate. Others who benefit from the will may then inherit more money, or relatives of the deceased person might contest the will. Further, an honorary trust meant to establish a monument can be ignored. Ad If a person wants a monument erected to himself or herself on city or state owned land, the city or state is under no obligation to act on this wish. The only reason they might be motivated to do so is if there is a financial incentive. For example, a will might set aside an honorary trust for the purpose of erecting a monument, and leave money to the local or regional government only if it follows through with the person’s wishes. The honorary trustee is a person established to see that the wishes of the deceased are carried out with respect to the honorary trust. If the money set aside in trust is to care for a pet or pets, the honorary trustee might provide that care or would appoint someone to do so, and keep tabs on them to make certain that the trust was being honored in the manner stipulated. If a person were an honorary trustee for establishing a monument, he or she would work with city or regional officials to attempt to honor the person’s wishes. Ad What Is an Incentive Trust? What is an Irrevocable Trust? What is Charitable Remainder Annuity Trust? What is a Discretionary Trust? What is a Term Trust? What is a Testamentary Trust? What is a Corporate Trust?

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Home Egypt: Law allocates 64 parliamentary seats for women Source: ECWR This law allocating seats for women in the People's Assembly has come after more than 25 years of women's numbers decreasing in the parliament. Women's greatest presence in the parliament was in 1984 when the participation reached to 35 representatives in comparison to 2005, which witnessed only 9 representatives, including four elected and five appointed. Although article No. 40 of the Egyptian constitution emphasizes absolute equality between men and women, the reality of equality is shaped primarily by customs, traditions and direct interests, which is reinforced by the per capita electoral system. This law comes as compensation for women's many years of marginalization by political powers. The Egyptian Center for Women's Rights (ECWR) believes that the quota system does not distinguish women, but acts as compensation in light of social and intellectual barriers that prevent the equitable participation of women in politics. This new law gives qualified women the opportunity to prove their abilities. In addition, it further changes the attitudes of society towards women's political participation and the need for women in the field of civil work. ECWR sees that is a good initiative which has been demanded by women rights' organizations since 1995 ECWR hopes that this initiative is not limited to only the parliament, but will also extend to councils and political parties, in order for women's representation to reach a proportion of 30%. On the other hand, ECWR is concerned about the law's application for only two parliamentary sessions. This fixed limit contradicts the aim of this quota, which is to be a tool for changing the attitudes of society. Two parliamentary sessions is not enough time to change the attitudes of a generation, and thus it should be extended to four parliamentary sessions. In addition, we hope that the quota system will lead to a change from the current per capita system to a list system, which will provide more opportunities for all marginalized groups to participate and strengthen political parties and political culture. It is worth mentioning that the quota system has been applied in 77 countries, in Asia, Africa, Europe and Latin America. Women representation has increased significantly in decision-making bodies and concerned bodies. These systems provided an effective mechanism for building-up the competency and capacity of women in the political field, which has proven tangible upon evaluation. ECWR stresses the need to work in conjunction with all political parties, political powers, and civil society organizations to encourage and support women in the wake of the new quota system. There is a substantial need for increasing society's awareness to accept and support women's political participation. Source: The Egyptian Center for Women's Rights Submitted on Sun, 06/21/2009 - 23:00 in Egypt [state] women’s political participation

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Metro The Ball is Always in His Legal Hands By Jason Lewis (Sports Editor) Published January 15, 2009 Attorney Robert Ball is one of South Los Angeles' finest. The USC Law graduate is a product of Verbum Dei High School and Cal State Dominguez Hills. He now resides in Beverly Hills, where he worked for one of the top 10 law firms in the nation before he started his own law firm, focusing on civil rights, police brutality, and wrongful terminations. At an early age Ball chose the right path. While many boys in his age group were joining gangs, Ball chose the books and sports. Gang life was always around him, and he had to co-exist with individuals who were terrorizing his neighborhood. But Ball was able avoid the street life in his area near Rosecrans and Central. "It was challenging in that there were a number of neighborhood youths that were caught up in the gangs," Ball said. "I had to avoid it and do positive things." Sports was Ball's outlet. The gang members noticed Ball's talents, so they left him alone to chance his dreams. Ball credits his parents, who he said never told him no to anything that he wanted to try. "They allowed me the flexibility to try a lot of different things in terms of sports and other type of activities," Ball said. "That had the biggest effect on what was driving me." Ball was not the only one to succeed in his area. He said that within a few blocks from him there were a few of his friends that grew up to be doctors and lawyers. He points out that there were local kids that grew up in the same environment that he did, but they chose a different path. Ball looks at present day South Los Angeles, and he does not see the same opportunities that he had as a child. "There were opportunities for young people to pursue things if they chose," Ball said. "Those opportunities are no longer available to youth in the community because of budget cuts, which basically reduced the resources in places like Parks and Recreation. The outlets that allowed people like me to peruse positive things." Ball believes that there is a direct link the amount of opportunities available to youth in the community and the amount of youth who rise above to do positive things. Without very many opportunities there will be less youth who will succeed. "There needs to be an outreach," Ball said. "There needs to be an effort at reaching the kids at schools. It is difficult to reach them at home sometimes, but there needs to be an effort to also get to the parents. There's no parent that would not want the best for their kids. If they don't know how to get access to certain programs, it is like they do not exist. Ball's experience at USC was very eye opening. "I was in school with individuals who were groomed for that environment since the time they were four and five years old," Ball said. "I was competing with people who had their eye on this very prize since they where children. I was there, and I competed very well." After that experience Ball knew that he could compare to anybody, no matter their race or background. Even though a Black man has been elected President, Ball points out that this country still has a ways to go in term of race relations. "Just because we have President Obama, that's one person, for the masses, they have to deal with the same stereotypes and biases that people had to in the '60s," Ball said. "The majority of the other races do not view the average Black person as they do Obama. "The problem from my stand point is that American is designed so that the average white person can make a decent living and raise his family. But if you're Black you still have to be better than the average white person. It shouldn't be like that." Ball enjoys helping others, including some of the gang members that he grew up with. He has represented some of them in court cases. "I feel like a soldier," Ball said. "A soldier that is going to battle for people who cannot other wise fight for themselves, because I have been given the tools to be that warrior for them." Categories: Local Mayor Villaraigosa Announces Over 1,300 Apprentices Placed Into Jobs Obama Southland Visits and Ben Affleck Prediction Recalled Service Opportunities, Celebrations Mark MLK Day L.A. County Unemployment Continues to Rise Man Won’t Be Charged in Deadly Shooting Attorney General Brown Sues Bakersfield Contractor for Violating Rights of ...

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EU Brings Antitrust Claims Against Utilities European Commission regulators have initiated legal proceedings against French energy companies Suez SA and Electricite de France, alleging that the utility companies conspired to fix prices in Belgian and French markets. The Commission said on Thursday that it had launched an investigation of Electrabel, the Belgian arm of French company Suez, and EDF, France's government-sponsored energy company, for allegedly abusing dominant market position. Regulators will look into contracts required by Electrabel and EDF that allegedly prevent industrial customers from switching energy providers. The Commission said that these contracts “significantly foreclose” the Belgian and French energy markets. In its investigation of the two companies, regulators said they would take into account conclusions reached in the investigation of Belgian gas provider Distrigas, another subsidiary of Suez SA that was involved a case that raised similar issues. In April, Distrigas, Belgium’s main gas distributor, took steps to alleviate antitrust concerns over its long-term gas supply contracts. Under its commitments, Distrigas promised that 70% of the gas it supplied in Belgium would be contestable for competitors each year and that no individual contract would last over five years. Nonetheless, it will be allowed to tie under long-term gas supply contracts of up to 30% of its existing gas supply or up to 20% of the market. This will “protect Distrigas from having to re-open existing long-term gas supply agreements if the volume of gas it supplied decreased,” the Commission said. Because Distrigas is a unit of Suez SA, the European Commission also addressed the possible Gaz de France/Suez merger. If the merger goes through and Distrigas is divested, then the commitments will apply to the sales in Belgium of Distrigas and its purchaser, the Commission said. If the merger does not go ahead, then the commitments will apply to Distrigas and the other members of the Suez group that are active on the Belgian gas market. [http://competition.law360.com/Secure/ViewArticle.aspx?id=30634] Michael G. Van Arsdall Senior Counsel – Washington, D.C. Email: [email protected]

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2016-50/4330/en_head.json.gz/8843

Supreme Court aboutsearch liibulletin subscribe previews RAILROAD AND WAREHOUSE COMMISSION OF MINNESOTA et al. v. DULUTH STREET RY. CO. RAILROAD AND WAREHOUSE COMMISSION OF MINNESOTA et al. v. DULUTH STREET RY. CO. Argued: March 14, 15, 1927. Decided: April 11, 1927. opinion, HOLMES [HTML] Messrs. J. B. Richards, of Duluth, Minn., and E. C. Carman and Clifford L. Hilton, both of St. Paul, Minn., for appellants. Mr. Oscar Mitchell, of Duluth, Minn., for appellee. This is an appeal from a decree of the District Court in favor of the plaintiff, the appellee, that prohibits the enforcing of a rate for the carriage of passengers established by the appealing Commission and authorizes the plaintiff to charge not exceeding six cents for carrying passengers within the City of Duluth, subject to conditions not needing mention. 4 F.(2d) 543. The Commission's order allowed a charge of six cents for a single fare but required the plaintiff to issue tickets or tokens at not to exceed twenty-five cents for five rides. The difference, it will be seen, is somewhat narrow and the only question that we have any need to consider is whether the plaintiff had a right to come into the Court of the United States when it did, and whether its suit was not at least premature. The plaintiff, an existing street railway company, elected to comply with and come under to terms of Chapter 278, General Laws of Minnesota 1921, by filing the declaration and consent required. Thereby it gained a right to apply to the above-mentioned Commission to fix the rates of fare to be charged in place of the five cents to which it had been limited before it came in under the Act. It applied to the Commission; the City of Duluth was made a party; and after a hearing the Commission determined the value of the plaintiff's property used and useful in the street car service in Duluth, found that a return of seven and one-half per cent. was a reasonable rate of return, and fixed the fares that we have stated as sufficient to yield that rate. This was on July 13, 1922. Five days later the plaintiff filed this bill, setting up that the Commission's order was confiscatory and in violation of the Fourteenth Amendment of the Constitution of the United States. The objections to the bill are based on the provisions of the Minnesota statute for an appeal. Both the city and the street railway are given the right to appeal to the District Court of the county, and there the whole matter, fact and law, is to be tried before three judges, without a jury. They are to find all material facts, including the fair value of the property and the reasonable rate of return, and to affirm, modify or reverse the order of the Commission, as may be required by law, the Commission being directed to conform to their judgment in its final order. There is a further resort to the Supreme Court. It is said that plaintiff was bound to exhaust the appeal thus granted before going elsewhere, and that it could not cut off the similar right of the City of Duluth. It is said that this is so not only on general principles but is binding on the plaintiff by its assent to the statute, which, it is said, constituted a contract and amounted to an acceptance of the statutory proceedings as the only mode of relief. The Supreme Court of the State has declared the proceedings in Court to be judicial not legislative in their nature, and therefore consistent with the constitution of the State, Duluth v. Railroad & Warehouse Commission, 167 Minn. 311, 209 N. W. 10. See Janvrin, Pet'r, 174 Mass. 514, 55 N. E. 381, 47 L. R. A. 319. If then the State Court should affirm the rate fixed by the Commission and the matter should become res judicata, a resort to the federal Court would be too late. But the plaintiff if it prefers to entrust the final decision to the Courts of the United States rather than to those of the State has a right to do so. Reagan v. Farmers' Loan & Trust Co., 154 U. S. 362, 391, 14 S. Ct. 1047, 38 L. Ed. 1014; Prentis v. Atlantic Coast Line Co., 211 U. S. 210, 228, and cases cited, 29 S. Ct. 67, 53 L. Ed. 150. It might be said that this Court would have to exercise its own judgment as to how the proceedings in the State Court should be characterized and not impossibly might regard them as legislative. Keller v. Potomac Electric Co., 261 U. S. 428, 43 S. Ct. 445, 67 L. Ed. 731. Or again it might be said that however characterized the judgment does not operate as such, but is taken up into the subsequent order of the Commission and therefore is subject to review after has been given that form. But as against these considerations it must be remembered that the requirement that state remedies be exhausted is not a fundamental principle of substantive law but merely a requirement of convenience or comity. Where as here a constitutional right is insisted on, we think it would be unjust to put the plaintiff to the chances of possibly reaching the desired result by an appeal to the State Court when at least it is possible that as we have said it would find itself too late if it afterwards went to the District Court of the United States. Pacific Telephone & Telegraph Co. v. Kuykendall, 265 U. S. 196, 44 S. Ct. 553, 68 L. Ed. 975; Oklahoma Natural Gas Co. v. Russell, 261 U. S. 290, 43 S. Ct. 353, 67 L. Ed. 659. The argument that the plaintiff is barred by contract needs but a word. We will assume for the purposes of decision that the plaintiff by coming in under the State law made a contract, and as part of it adopted the statutory method of getting its rates changed. But it would be extravagant to say that it did more than adopt that method in its general character and with its ordinary incidents. If apart from the supposed contract a party would have been entitled to go to the Court of the United States at the stage when the plaintiff went there, no reasonable interpretation of the contract forbad the plaintiff to go, and there is no need to consider whether the contract could have forbidden it if it had tried. Finally as to the rights of the appellants. It is said that the appeal of the City is cut off by the course the plaintiff has taken. But of course the City would not appeal except on the ground that the plaintiff already was given too favorable terms. The City is in the present case and when as here the plaintiff succeeds in showing that these terms are inadequate on constitutional grounds, the City has had its day and has failed, and the loss of its appeal is merely a consequence of a trial in which it has been heard and has lost. Mr. Justice BUTLER took no part in this case.

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Home Frost party organizer sentenced strict warning: Non-static method view::load() should not be called statically in /home/addison/public_html/sites/all/modules/views/views.module on line 1118. MIDDLEBURY — The organizer of a Dec. 28 underage drinking party that caused $10,600 in damage to the former summer home of Robert Frost in Ripton will not serve any jail time, but will pay $3,500 in restitution, perform 100 hours of community service and be on probation for two years. Those were the main components of a plea agreement negotiated between Addison County State’s Attorney John Quinn and 18-year-old Ripton resident Andrew Ford, who fainted during a courtroom discussion with Addison County District Court Judge Helen Toor as she accepted the plea deal on Tuesday. Ford suddenly collapsed and appeared to lose consciousness as judge Toor queried him on his reasons for organizing the party at the Homer Noble House that drew more than two dozen people, many of them Middlebury Union High School students. Most of those students have already accepted court diversion as punishment for their roles in the destructive party, which has garnered national publicity. Court officials quickly cleared the courtroom after Ford’s collapse, but called off an ambulance after he quickly regained composure and completed the sentencing hearing, with his parents at his side. “I have never scared someone so much that someone fainted in my courtroom,” Toor told Ford in a brief light moment after order had been restored. “I was trying to scare you a little bit, but not that much.” Ford’s punishment includes a suspended jail term of six- to 12 months and an educational course that he and the other culprits will have to attend. Quinn confirmed on Tuesday that he is speaking with Jay Parini, author and D. E. Axinn Professor of English and Creative Writing at Middlebury College, about leading the course to enlighten the youths about Frost’s iconic status as an American poet. “It’s so they can learn why Robert Frost is a poet laureate and, if not a national treasure, at least a Vermont treasure,” Quinn said of the course, which is still in the works. Ford had been cited for unlawful trespassing and enabling the consumption of alcohol by a minor in connection with the Dec. 28 party at the Homer Noble Farmhouse. Ford admitted giving Patrick Deering, 23, of Middlebury around $100 to buy beer for the party. Ford acknowledged he had become acquainted with the Homer Noble Farmhouse when he was a summer worker on Middlebury College’s Breadloaf Campus in Ripton. The college owns the Homer Noble Farmhouse and the nearby cabin where Frost did his writing and which was untouched during the Dec. 28 party. More people than anticipated showed up at the party — some reports pegged the number of partygoers at 50 — prompting Ford to tell them it was a friend’s summer house “so they would respect and not damage the home,” according to court documents. But that didn’t stop the vandalism, which included chairs being tossed through windows, fire extinguishers being set off and furniture being burned in the fireplace, according to court records. Some of those attending the party vomited on the floor. Twenty-eight people were cited in connection with the party, mostly for unlawful trespassing. Had he been convicted on the charge of unlawful trespassing, Ford could have received up to three months in jail, a $500 fine, or both. The charge of enabling the consumption of alcohol by a minor carried a possible sentence of up to two years in jail, a fine of $500 to $2,000, or both. Quinn said he believes the Ford plea deal reflects a level of restitution, punishment and education appropriate for a crime committed by a youth who was “otherwise a good kid, from all reports.” Quinn added that two other youths whom prosecutors have deemed also played a large role in the crime will be asked to pay an equal amount of restitution ($3,500) to Middlebury College. Quinn said he could not yet reveal the names of the other two youths who will pay restitution. Middlebury College has endorsed the restitution plan. “The college is satisfied that the legal system has run its proper course,” said Sarah Ray, Middlebury College’s director of public affairs. Ford took responsibility for organizing the party and told Toor he would stay out of further trouble. More trouble would run him afoul of probation and potentially land him in jail, Toor warned. When asked to explain his actions in court, Ford said he had not originally intended to have a large party. “I was originally planning to find a party that multiple cliques in our senior class could attend and I never actually planned to go to the Noble Farm,” Ford said. That plan changed, he said, when his friend (and another defendant in the case) Bryan Parks, a Middlebury 19-year-old, called Ford and said it was his birthday and that they should celebrate. It was at that point, Ford said, that he considered the Homer Noble Farm. “It was a nice house,” Ford said. On the evening of the party, however, “multiple groups showed up who I didn’t know who they were,” Ford said, to which Toor replied, “I could have told you that would happen.” Asked what his advice would be to other youths pondering a party, Ford said, “Do not do what I did. Don’t organize or go to any underage drinking parties.” The judge also asked Ford, an MUHS senior, about his future plans and voiced concerns about his current academic struggles. Ford attributed his poor marks to “motivational issues,” adding a grade five/six teacher “pretty much ruined school for me.” “My suggestion to you is that you try to get over that and try to work a little harder to figure that out,” Toor told Ford, who plans to go to college this fall. “You’re obviously a smart young man, it seems to me. “I think whatever the problem is, this is the time to figure that out, so you can figure out how to stay out of trouble and not go down the road with some other people who are sort of aimless that end up seeing me too much,” she added.

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P.J. O’Rourke Defends ‘Truthiness’ Before the Supreme Court Tuesday, March 4, 2014By Joe Carter The Supreme Courts is hearing a case that involves a First Amendment challenge to an Ohio law that makes it a crime to “disseminate a false statement concerning a candidate, either knowing the same to be false or with reckless disregard of whether it was false.” During the 2010 elections, the Susan B. Anthony List, a pro-life advocacy group, published ads in Ohio claiming that then-Rep. Steven Driehaus supported taxpayer-funded abortions (because he had voted for the Affordable Care Act). Driehaus filed a complaint with the Ohio Election Commission over the ads. The SBA List challenged the constitutionality of the law, which is now before the Supreme Court. In support of the SBA List, P.J. O’Rourke, humorist and national treasure, contributed to an amicus brief defending our constitutional right to “truthiness”: How IKEA and Innovation Help Refugees in Iraq Tuesday, March 4, 2014By Joe Carter When looking for solutions to humanity’s problems, conservatives and libertarians tend to prefer turning first to free markets rather than government. The reason for such a preference is often misunderstood, and can be difficult to explain since it appears paradoxical: free markets are often better at serving human needs than governments because free markets make it easier to fail. As Arnold Kling explains, the best way to deal with failure depends on the institution. An individual needs to fail with a fallback position, a small startup firm needs to fail quickly, and a large, established firm needs to fail gracefully. But government, says Kling, cannot do any of these things well. Of the many things that governments do poorly, failing is probably the worst. That is why governments rarely produces significant innovations. To produce innovative ideas, products, processes, or services requires testing what works and adjusting what doesn’t until you find the right formula. In a free market, the actions of consumers provide a signal to individuals and firms that they are doing well – or that they are failing. If a company is failing, they have an incentive to adjust — and are pressured by competitors to adjust quickly — in order to give the customer what they need. They are often faced with a brutal, binary choice: innovate or fail. Government agencies, in contrast, tend to lack such feedback mechanisms and the ability to adjust quickly precisely because they have a low fear of failure. Even if they are unable to innovate and serve the needs of their “customers” they will likely stay in business due to bureaucratic inertia. Religious Liberty and Business as Culture-Making Tuesday, March 4, 2014By Joseph Sunde Offering yet another contribution to a series of recent discussions about the religious liberties of bakers, florists, and photographers, Jonathan Merritt has a piece at The Atlantic warning that the type of protections Christians were fighting for in Arizona “could come back to hurt the faithful.” “These prophets of doom only acknowledge one side of the slope,” Merritt writes. “They fail to consider how these laws could be used against members of their own communities. If you are able to discriminate against others on the basis of religious conviction, others must be allowed to do the same when you are on the other side of the counter.” Merritt sets things up with the following hypothetical: “I’d like to purchase a wedding cake,” the glowing young woman says as she clutches the arm of her soon-to-be husband. “We’re getting married at the Baptist church downtown this coming spring.” “I’m sorry, madam, but I’m not going to be able to help you,” the clerk replies without expression. “Why not?” the bewildered bride asks. “Because you are Christians. I am Unitarian and disapprove of your belief that everyone except those within your religion are damned to eternal hell. Your church’s teachings conflict with my religious beliefs. I’m sorry.” Would conservative Christians support this storeowner’s actions? (more…) Video: Kishore Jayabalan on the Changing Face of the Roman Catholic Church Tuesday, March 4, 2014By Marc Vander Maas Pope Francis recently installed 19 new cardinals in a ceremony at the Vatican, the first that he has chosen in his pontificate. Most of the new Cardinals hail from outside Europe and North America, and the group includes the first Cardinal from the long-impoverished nation of Haiti. Kishore Jayabalan, Director of Istituto Acton in Rome, spoke with the BBC about what this new group of Cardinals means for the Roman Catholic Church, and how they reflect the changing face of the church in the 21st century. This interview originally aired on February 22, 2013. The Bigger The Government, The Smaller The Citizen Tuesday, March 4, 2014By Elise Hilton Dennis Prager at Prager University reminds us that big government makes everything else (goodness, charity, self-reliance) smaller. Big government also creates a sense of entitlement amongst citizens, creating ingratitude and resentment – hardly what one wants in society. Apple’s Tim Cook: Profits Aren’t The Only Thing Tuesday, March 4, 2014By R.J. Moeller From The Independent: He leads a company that some would consider the epitome of ruthless global capitalism. But Apple chief executive Tim Cook has shocked some in the US with an impassioned attack on the single-minded pursuit of profit – and a direct appeal to climate-change deniers not to buy shares in his firm. Eyewitnesses said Cook, who succeeded Steve Jobs as boss of the technology giant in 2011, was visibly angry as he took on a group of right-wing investors during a question-and-answer session at a shareholders’ meeting. And what were these (presumably) egregious and inappropriate questions levied by the “right-wing investors”? Responding to calls from the National Centre for Public Policy Research (NCPPR), a conservative think tank and investor, for Apple to refrain from putting money in green energy projects that were not profitable, he shot back that Apple did “a lot of things for reasons besides profit motive”. The chief executive added: “We want to leave the world better than we found it.” Addressing he NCPPR representative directly, he said: “If you want me to do things only for ROI [return on investment] reasons, you should get out of this stock.” So some Apple investors were concerned that the company might be throwing good money after bad (but socially chic) investments into green energy, and that is what set off the CEO of one of the world’s largest companies? Really? (more…) PowerLinks 03.04.14 Tuesday, March 4, 2014By Joe Carter The Conscience of Thomas More and the Little Sisters Of The Poor Sandra Laguerta, First Things With the battle raging between the Little Sisters of the Poor and the Federal government on the HHS Mandate, some writers have likened their case to the trial of St. Thomas More as seen in Robert Bolt’s play A Man for All Seasons or Fred Zinnemann’s famous film adaption. Zinnemann’s film and Bolt’s play, however, inaccurately convey Thomas More’s idea of conscience. What Is the Right to Religious Freedom? Fr. Dylan Schrader, Homiletic & Pastoral Review The most fundamental right in the area of religion is that which should be attributed to God, what we owe to God. God is absolutely sovereign. The Rich Get Married, the Poor Get Poorer Peter Jon Mitchell and Andrea Mrozek, Public Discourse The Canadian dialogue on marriage and economic prosperity lags behind the American conversation, but a new report aims to change that. An Argument to Turn to Jesus Before the Bar Mark Oppenheimer, New York Times Americans like to sue. But many evangelicals believe that they should turn first to Jesus, not the bar. “If another member of the church sins against you,” Jesus says, according to the Gospel of Matthew, “go and point out the fault when the two of you are alone.” 6 Quotes: John Glenn on Faith, Service, and Government (1,056 views)by Joe Carter Work is a gift our kids can handle (885 views)by Joseph Sunde Republicans and conservatives are trading free markets for cronyism (421 views)by Joe Carter

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| United States v. Herring United States v. Herring UNITED STATES OF AMERICAv.CHARLES LEE THEROUX HERRING, ROBERT JOSEPH (LAST 4 DIGITS) SOCIAL SECURITY NO. 4 1 3 4 JUDGMENT AND PROBATION/COMMITMENT ORDER MONTH DAY YEAR In the presence of the attorney for the government, the defendant appeared in person 10 14 2010 X WITH COUNSEL Jay L. Lichtman, Panel (Name of Counsel) CONTENDERE NOT GUILTY There being a finding/verdict of GUILTY, defendant has been convicted as charged of the offense(s) of: 21 U.S.C. § 846, 841(a)(1), 841(b)(1)(A)(viii): CONSPIRACY TO POSSESS WITH INTENT TO DISTRIBUTE AND TO DISTRIBUTE METHAMPHETAMINE as charged in Count One of the Indictment. Pursuant to the Sentencing Reform Act of 1984, it is the judgment of the Court that the defendant, Charles Lee Theroux, is hereby committed on Count One of the Indictment to the custody of the Bureau of Prisons to be imprisoned for a term of 60 months. Upon release from imprisonment, the defendant shall be placed on supervised release for a term of three years under the following terms and conditions: The defendant shall comply with the rules and regulations of the U. S. Probation Office and General Order 05-02; The defendant shall participate in an outpatient substance abuse treatment and counseling program that includes urinalysis, breath, and/or sweat patch testing, as directed by the Probation Officer. The defendant shall abstain from using illicit drugs and alcohol, and abusing prescription medications during the period of supervision; As directed by the Probation Officer, the defendant shall pay all or part of the costs of treating the defendant's drug dependency to the aftercare contractor during the period of community supervision, pursuant to 18 U.S.C. § 3672. The defendant shall provide payment and proof of payment as directed by the Probation Officer; The Court authorizes the Probation Office to disclose the Presentence Report to the substance abuse treatment provider to facilitate the defendant's treatment for narcotic addiction or drug dependency. Further redisclosure of the Presentence Report by the treatment provider is prohibited without the consent of the sentencing judge; FINE: Pursuant to Section 5E1.2 (e) of the Guidelines, all fines are waived as it is found that the defendant does not have the ability to pay a fine. SPECIAL ASSESSMENT: It is further ordered defendant shall pay to the United States a special assessment fee of $100, which is due immediately to the Clerk of the Court. SENTENCING FACTORS: The sentence is based upon the factors set forth in 18 U.S.C. § 3553, including the applicable sentencing range set forth in the guidelines. The Court RECOMMENDS a BOP facility as close to the Southern California vicinity as possible. The Court RECOMMENDS participation in the 500-hour drug program, if the defendant qualifies. It is ordered that the Clerk deliver a copy of this Judgment and Probation/Commitment Order to the U.S. Marshal or other qualified officer. John A. Chambers Filed Date Deputy Clerk While the defendant is on probation or supervised release pursuant to this judgment: The defendant shall not commit another Federal, state or local crime; the defendant shall not leave the judicial district without the written permission of the court or probation officer; the defendant shall report to the probation officer as directed by the court or probation officer and shall submit a truthful and complete written report within the first five days of each month; the defendant shall answer truthfully all inquiries by the probation officer and follow the instructions of the probation officer; the defendant shall support his or her dependents and meet other family responsibilities; the defendant shall work regularly at a lawful occupation unless excused by the probation officer for schooling, training, or other acceptable reasons; the defendant shall notify the probation officer at least 10 days prior to any change in residence or employment; the defendant shall refrain from excessive use of alcohol and shall not purchase, possess, use, distribute, or administer any narcotic or other controlled substance, or any paraphernalia related to such substances, except as prescribed by a physician; the defendant shall not frequent places where controlled substances are illegally sold, used, distributed or administered; The defendant shall pay interest on a fine or restitution of more than $2,500, unless the court waives interest or unless the fine or restitution is paid in full before the fifteenth (15th) day after the date of the judgment pursuant to 18 U.S.C. §3612(f)(1). Payments may be subject to penalties for default and delinquency pursuant to 18 U.S.C. §3612(g). Interest and penalties pertaining to restitution , however, are not applicable for offenses completed prior to April 24, 1996. As directed by the Probation Officer, the defendant shall provide to the Probation Officer: (1) a signed release authorizing credit report inquiries; (2) federal and state income tax returns or a signed release authorizing their disclosure and (3) an accurate financial statement, with supporting documentation as to all assets, income and expenses of the defendant. In addition, the defendant shall not apply for any loan or open any line of credit without prior approval of the Probation Officer.

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Lawsuit: Powell to receive $200 million from Avoca creosote plant settlement By Bob Kalinowski, Staff Writer Attorney Robert Powell, a central figure in the notorious kids-for-cash scandal in Luzerne County, is poised to share up to $200 million his law firm is owed for representing Avoca residents in a national environmental contamination lawsuit, according to a racketeering lawsuit filed by his former business partner. Powell’s former business partner Gregory Zappala claims Powell’s awaiting windfall is the product of Luzerne County corruption and is asking a federal judge to freeze any payments to the convicted felon. Zappalla is seeking an injunction to stop Powell, his law firm and former law partner, Jill Moran, from getting paid. A federal judge on Wednesday set a hearing date for Aug. 22 in federal court in Pittsburgh. The Powell Law Group had represented a group of Avoca residents who were plaintiffs in a national class action lawsuit against Anadarko Petroleum Corp. regarding environmental contamination from toxic waste that injured thousands. Its subsidiary Kerr-McGee Corp. once had a creosote plant in Avoca. In April, Anadarko agreed to pay $5.15 billion to settle the case. For its work, the Powell Law Group is owed nearly $200 million in attorneys fees, according to Zappala’s lawsuit. In 2002, Powell teamed with Zappala, an Allegheny County investment banker, to build their first juvenile detention center, Pennsylvania Child Care, in Pittston Township. They later built a second center in Butler County called Western PA Child Care. Zappala, son of a former state Supreme Court chief justice and brother of the Allegheny County district attorney, abruptly ended the partnership in June 2008 after The Citizens’ Voice reported the FBI was investigating financial ties between Powell and two Luzerne County judges. Zappalla was never accused of any wrongdoing and has maintained he was kept in the dark regarding Powell’s illegal acts. The judges, Mark Ciavarella and Michael Conahan, were later charged with taking $770,000 in kickbacks from Powell and failing to report $2.1 million in finder’s fees paid by the developer, whose construction company built the facilities in Pittston Township and Butler County. Ciavarella is serving 28 years in federal prison, while Conahan is jailed for 17 years. Powell served 18 months in prison after he pleaded guilty to failing to report a felony and being an accessory to tax conspiracy. As part of the plea, he agreed to forfeit his law license, his $2.6 million private jet and his $1.3 million yacht, named “Reel Justice. Powell and his wife now live in Palm Beach Gardens in Florida, according to court documents. In his suit, Zappala claims Powell, Moran and the Powell Law Group “stole” $2.9 million from their shared companies to bribe Luzerne County judges. It also alleges they used $6.175 million to bankroll the litigation in the Kerr McGree case in Avoca. “The Avoca fees are proceeds from the millions of dollars that Robert Powell, Moran, and PLG stole from Plaintiff,” Zappala’s suit says. Zappala’s lawsuit said he and his companies suffered more than $285 million in damages.

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EUROPAEU law and publicationsEUR-LexEUR-Lex - r13011 - EN DG ECHO: Annual Report 2006 Language 1 German (de) This report outlines the principal activities of the EC's Directorate-General for Humanitarian Aid (DG ECHO) in 2006. The year was marked by the crisis in Lebanon, the earthquake in Indonesia, drought in many African states and Afghanistan, and a worsening of the humanitarian situation in certain existing crises. Report from the Commission of 29 September 2006 - Directorate-General for Humanitarian Aid (DG ECHO): Annual Report 2006 [COM(2006) 555 final - Not yet published in the Official Journal]. Main interventions In 2006 DG ECHO allocated a total budget of 671 million, the main recipients being African, Caribbean and Pacific (ACP) states, followed by Eastern Europe, the Mediterranean, the Middle East and the New Independent States. The most important actions in the ACP countries took place in Sudan (worsening of the Darfur crisis), Northern Uganda, Burundi, the Democratic Republic of Congo and Liberia. In the Mediterranean and the Middle East, DG ECHO provided assistance to victims of the war between Israel and Hezbollah in Lebanon and continued to help Palestinian refugees in Syria, Jordan and Lebanon as well as the most vulnerable populations in the Occupied Palestinian Territories. In Asia, DG ECHO's activity focused primarily on the Thai-Burma border (Burmese refugees) and on providing assistance to Afghan refugees in Pakistan and Iran. In Latin America, DG ECHO again provided assistance to populations affected by the violence in Colombia. As always, DG ECHO continued to pay particular attention to forgotten crises *, using a method of analysis based on both quantitative and qualitative factors. The forgotten crises identified in 2006 were Algeria (Western Sahara), Myanmar, Nepal, Chechnya and India (Kashmir). With regard to disaster preparedness activities, DG ECHO reinforced its institutional resources to facilitate mainstreaming disaster preparedness in humanitarian relief and rehabilitation programmes. It also allocated 10 million for pastoralist populations in the Horn of Africa (Djibouti, Ethiopia, Eritrea, Kenya, Somalia, Sudan and Uganda), to help them prepare for drought. DG ECHO also continued to support programmes to reinforce the institutional capacities of the main international humanitarian agencies, e.g. the refugee registration programme operated by the United Nations High Commission for Refugees (UNHCR). To implement its operations, DG ECHO relied on some 200 partners in the field, most of them NGOs (54%), UN agencies (32%) and other international organisations (11%). Financial Perspectives 2000-2006 - Financial Perspectives for 2007-2013 The report found that over the period 2000-2006: the humanitarian aid budget was kept a quite stable and minimal amount, which meant that DG ECHO had to seek reinforcement every year, mainly through use of the Emergency Aid Reserve;the funds allocated to the different regions varied sharply from year to year, reflecting the short-term orientation of DG ECHO's interventions;the relative share of funds allocated to the ACP States increased over the period, and by 2006 accounted for nearly half the DG's total budget, the sole exception being in 2005, when Asia received the lion's share of funding, on account of the tsunami and the earthquake in Kashmir. For the period 2007-2013, the integration of food aid and aid to uprooted people will enable DG ECHO to manage all humanitarian activities through a single instrument. In the context of linkage between relief, rehabilitation and development (LRRD), this will facilitate the transition from food aid to food security. The report underlines the significant change in the international humanitarian situation. On the one hand, the extent and number of natural disasters have increased, and conflicts last longer and are more destructive. On the other hand, there are new actors on the humanitarian aid stage, including non-traditional donors (companies and States) and the civil protection services and armed forces of the Member States. In this context, the EC launched a consultation between its partners and the Member States to strengthen the effectiveness and coordination of EU policies in the field of humanitarian aid. The results of this process fed into a Communication defining a European Consensus on the principles and best practice of humanitarian action. In 2006 DG ECHO refined its methodology for assessing global humanitarian needs, splitting the GNA into vulnerability and crisis indicators for the 140 developing countries considered, on the basis of factors such as human development, malnutrition and natural disaster risk. As regards its strategy for reinforcing the EU's response capacity in the event of disasters and crises in third countries, DG ECHO increased the number of experts in the field and further improved its operational and contractual procedures. DG ECHO also continued to pursue its communication and information strategy and to develop its security and safety policy for staff engaged in the delivery of humanitarian aid. Key terms used in the act Forgotten crises: Crises that receive little or no media attention and whose victims receive relatively little or no international assistance. Key figures given in the act Total aid allocated in 2006: 671 million.Main aid recipients: ACP countries (322 million / 48%), Eastern Europe, the Mediterranean, the Middle East and the New Independent States (177.9 million / 27%), Latin America and Asia (105.5 million / 16%).

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Charlie McCreevy, Commissioner for Internal Market and Services, gave a speech today on the future of IPR in Europe - updating in particular his plans for patents in Europe. No formal proposals were made, other than a commitment to produce a Communication before the end of the year. However, there was some more positive mood music for the EPLA.The speech was held at an IPR Conference which was part of an informal ECOFIN Council meeting, organised by the Finnish EU Presidency.In Brief Commissioner McCreevy believes that the time is right to make a serious attempt to improve the IPR system in Europe. He welcomed the fact that the Finnish Presidency has singled out innovation as the key factor for Europe's future and said that a good IPR environment is, in turn, a key factor for innovation.He praised the success of the community trade mark and, more recently, the community design, but contrasted this with the "far from satisfactory" situation regarding patents. "How can you on the one hand say we want the European economy to be the most competitive in the world when on the other hand we have a patent system that is outdated and expensive to enforce? " McCreevy proposes a two pronged approach: advancing the Community Patent and, in parallel, involving the Community in the EPLA negotiations to bring them to finality. "The Community Patent and the EPLA are not mutually exclusive initiatives. They are both aiming for the same goal: a better, cheaper, more reliable patent system."Community Patent McCreevy effectively confirmed that the 2003 Common Political Approach on the Community Patent is now dead. However, he proposed no concrete alternatives other than saying that he wants to be imaginative and to "move this debate along", working with the Finnish Presidency, the upcoming German Presidency and the European Parliament. It seems, therefore, that the Commission is unwilling to give up on the Community Patent even though, without a radical breakthrough, it is unlikely to provide the short (or medium) term solution demanded by industry.The EPLA The mood music for this sounds more positive. Commissioner McCreevy recognised that the EPLA offers a unified jurisdiction for European patents and would offer valuable cost savings and increased certainty in regard to patent application. He considered that the EPLA needs Community involvement but that with an active, constructive approach by the Commission, there could be a momentum to achieve a successful outcome.The comment that "in terms of the jurisdictional arrangements the challenges are similar for both of them" could be taken as lending support to the view held by some that if agreement can be reached on the EPLA, its structure may in turn be "adopted" by the Community Patent if agreement can be reached on that in the future.Enforcement Directive Commissioner McCreevy concluded with a stong plea for the implementation of the enforcement directive, which has been patchy so far.Peter Hill, Simmons & Simmons, London

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Elisha Scott, Sr. African American attorney. 1890-1963 Elisha Scott, Sr, was born in Memphis Tennessee in 1890. His family later moved to Lane Street in west Topeka, in the community of Tennessee Town. As a youth he possessed a strong drive and a quick wit, which attracted the eye of the prominent minister Charles M. Sheldon. Scott was one of the students who attended the Tennessee Town kindergarten. Sheldon helped Scott enroll at the Kansas Technical Institute, which was an all African American vocational school. With financial support from Sheldon and his own abilities to succeed, Elisha Scott went on to earn his law degree from Washburn College in 1916. He was the third African American to graduate from Washburn, and the only African American student in his class. During his long career as an attorney, he argued many civil rights and school segregation cases throughout Kansas and the Midwest. Scott provided legal help for the victims of the Tulsa lynchings in 1921. He represented plaintiffs in the Kansas Supreme Court case Thurman-Watts v. The Board of Education of the City of Coffeyville in 1924. Scott represented families in Johnson County in the Kansas Supreme Court case Webb v. School District No. 90, which gained entrance for black students in a local elementary school. He gained a reputation in Kansas as taking the most impossible cases, and winning them. Scott's two sons, John and Charles, joined him in his law firm of Scott, Scott, Scott, and Jackson. His sons would make history by helping to prosecute at the local level the landmark case of Brown v. Board of Education. We invite readers to contribute to this article. Elisha Scott trading card Entry: Scott, Elisha Sr. Author: Kansas Historical Society Date Created: May 2009 Date Modified: January 2016 The author of this article is solely responsible for its content. Featuring 1949 articles. Our newest article is George E. Nettels. Select a random article. McKinley BurnettLucinda ToddBrown v. Board - KansapediaKansas History - Autumn 2004Ronald Walters http://www.kshs.org/kansapedia/elisha-scott-sr/12198 SHOP Home » Research » Kansapedia » People

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Furloughed federal workers can collect unemployment by Annalyn Kurtz @AnnalynKurtz May 29, 2013: 8:15 AM ET Bill Coleman, a mechanical engineer who works for the Navy, expects to be furloughed for 11 days this summer. He will try to recoup some of his $4,400 in lost pay through unemployment claims. Should federal employees on furlough be allowed to collect unemployment benefits? Workers at a Navy engineering station in Philadelphia think so. The local union affiliate of International Federation of Professional & Technical Engineers has signed an agreement with the Navy which would allow their civilian federal workers to group furlough days in one-week blocks. It's a strategy with one key goal: enable those employees to recoup some of their lost wages through unemployment checks. Here's how it works. Bill Coleman, a mechanical engineer who works for the Navy, makes around $104,000 a year, before taxes. Like most Department of Defense employees, he expects to be furloughed for 11 days between July and September. He will lose roughly $4,400 in pay during that stretch. If his furlough days are scattered throughout the three month period, he will not qualify for unemployment benefits in Pennsylvania. Workers in that state cannot earn more than $745 in one week and still qualify for unemployment benefits. Based on government pay grades, the Pennsylvania Department of Labor and Industry estimates most federal employees will not be eligible for benefits unless they work less than 28 hours per week. Indeed, if Coleman works just four days a week -- he would surpass the $745 limit. However, the scenario changes completely now that Coleman can group his furlough days together in five-day blocks. In that case, he will lose a full week of wages at a time, and the state would consider him like any other worker on a temporary layoff. Coleman hopes this will allow him to collect roughly $1,100 in unemployment checks this summer. "I went through a very expensive divorce, I have five kids -- two of them are in college -- and I can't afford this," he said. "When you take away 20% of my salary during those three months, it's putting me into the range where I do not have money left for gasoline and food." Related: Federal workers under fire Nationwide, it's unclear how many federal employees will be eligible for unemployment benefits. The furlough arrangements vary by agency and unemployment rules differ widely by state. It's also controversial. After all, the furloughs were intended as a budget-cutting mechanism. Doesn't paying unemployment benefits defeat the purpose of the furloughs in the first place? To that, workers point out they're recouping only a fraction of their pay. "It's not a pound for a pound thing. It's essentially something people get in order to live on while they're going through this tough time," said Gregory Junemann, international president of the IFPTE union. "Remember, these are essentially middle class people. They don't take this money and invest it in property in the Bahamas. They're buying groceries." Blue Angels grounded by budget cuts The Department of Labor has advised and encouraged federal workers to research the rules in their area. It also cautioned federal employees that some states may become bogged down with these types of claims. "You should expect longer than normal wait times due to the large volume of UCFE claims that may be filed," the department said in a statement. UCFE stands for the Unemployment Compensation for Federal Employees program, in which federal taxpayer dollars reimburse the states after they pay unemployment benefits to federal workers. This differs slightly from the private sector, in which either the employer or the employee contributes to the state unemployment insurance fund. Related: IRS workers say 'Stop the spending cuts!' California, Virginia, Texas and the District of Columbia -- the four places with the most federal workers -- have not yet reported a notable pickup in unemployment claims from federal employees. But there has been a small increase in New York. In that state, a worker whose hours are cut through no fault of their own may qualify for partial unemployment benefits if they earned below $405 during a shortened work week. About 176 federal workers filed for unemployment benefits in the week ending April 20 -- the week furloughs went into effect for Labor Department employees. That's up from an average of 79 claims filed in each of the seven prior weeks. "The best advice we tell everyone is that they should file a claim and our reps will determine if they are eligible," said Chris White, a spokesman for the New York Department of Labor. "There are many factors that can affect a claim, as you can imagine." The rules in every state are very complicated and differ based on a worker's salary, but if you are a federal employee hoping to make a claim, there are a few things that can speed up the process. Have copies of your Standard Form 8 and Standard Form 50, when you submit the claim. These are documents that federal employers issue to describe the nature of a worker's unemployment. The U.S. Department of Labor also has more tips on its site. CNNMoney (New York) First published May 29, 2013: 5:54 AM ET Comments Social Surge - What's Trending

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San Jose City Council Revisits Thorny Issues Surrounding Pot Clubs By Mike Colgan Filed Under: Cannabis clubs, Chuck Reed, Marijuana, Medical marijuana, Mike Colgan, Pot, Pot clubs, San Jose, San Jose City Council Marijuana is poured from a jar at at medical marijuana dispensary. (David McNew/Getty Images) SAN JOSE (KCBS) – The San Jose City Council was poised to take another step in the long process of legalizing the sale of medical marijuana; still, a number of questions were yet to be resolved surrounding the matter. For instance, how many pot clubs should be allowed? There are at least 100 currently operating in the city. “There’s a great deal of effort that goes into setting up a regulatory system and being able to make sure that people are complying with the law, being able to monitor that, make sure they’re following the law. We have the capacity right now with the staffing we have and the funding we have, to deal with ten,” stressed Mayor Chuck Reed. “Once we’re successful and we have control, it’s possible we can increase the number in later years but we’ve just got to do the amount that we can handle and that’s ten.” KCBS’ Mike Colgan Reports: An even more controversial proposal would require collectives to grow their pot on-site. Critics say that’s unrealistic because it would require too big of an operation than most can manage. Also at Tuesday’s meeting, councilmembers will consider where the pot clubs should be located. Mike Colgan Mike Colgan, who has worked in Bay Area radio for more than 40 years, has been at KCBS since 1988. Other stops include a 13 year stint at KFRC, then known as the Big 610. Mike is assigned to the KCBS Silicon Valley Bureau. He has covered many of t...More from Mike ColganComments

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The University of Sydney - Sydney Law School Sydney Law School NewsEvents Podcasts You are here: Home / Sydney Law School / News & Events Browse Academics in the NewsJuristDictionLatest Research NewsPostgraduate Intensive UnitsSydney Law School NewsNews Archives 2016 Archive2015 Archive2014 Archive2013 Archive2012 Archive2011 Archive2010 Archive2009 Archive2008 Archive ShortcutsRSS feedsSubscribe News What next for jailed Australian journalist Peter Greste?By Professor Ben Saul, first published in the Sydney Morning Herald24 June 2014The seven-year jail sentence meted out to Peter Greste by an Egyptian court was rightly condemned by governments, media organisations, and human rights activists. The charges were highly irregular and inconsistent with media freedoms and free expression. The trial was unfair and did not meet minimum standards, including on the disclosure of evidence and the right of defence. The verdict was not reasoned. The sentence was heavy handed and aimed to chill criticism of the regime.The harsh verdict has surprised many because the trial was under intense scrutiny from the global media, foreign governments, and fair trial monitors. The Australian government, including Prime Minister Tony Abbott, had vigorously communicated with the Egyptian authorities about its expectations of a fair trial, and received assurances about judicial independent. Under international law, Australia has a diplomatic right to insist that other countries respect human rights standards and protect its citizens. Foreign Minister Julie Bishop expressed shock at the result.There were, however, warning signs and the outcome should not be such a surprise. Only days ago, another Egyptian court upheld 183 death sentences, after an earlier mass trial condemning 683 people to death, including many tried in absentia. The Egyptian government sees itself in a struggle for survival against the Muslim Brotherhood. Greste and his colleagues are collateral damage. Being foreign does not bring special treatment. Despite the recent promise of democracy, Egypt has had exceptionally harsh security laws for many decades and its judiciary is habituated to using them. Old habits die hard. Democracy, an independent judiciary, and the rule of law do not happen overnight under these conditions.For Greste and his family, the question is what comes next. All avenues under Egyptian law will be considered, including a judicial appeal and, as a last resort, a request for a political pardon. There is always a chance that a higher court will correct this mistake, but equally Egypt's national security could dig in its heels.What more can Australia do? Unlike with some other Australians in trouble overseas, so far in Greste's case the government has pulled out all stops to secure his fair treatment. Undoubtedly this is because there has been strong media interest in protecting one of its own, which has pressured the government to act. Greste also seems to have done nothing wrong, unlike some Australians whose behaviour is more questionable and less sympathetic. There are also vital principles of media freedom and a fair trial at stake, which Australia is right to defend.The Australian government has handled the case well by showing good judgment in its representations to Egypt. It gave the Egyptian courts the benefit of the doubt by being open to the court demonstrating its fairness.Now that the court has shown its true colours, it is appropriate for Australia to escalate its response. While a country has no right to politically interfere in a fair trial before an independent foreign court, Australia must now demand Greste's immediate release. There can be no confidence in further court proceedings. It is not just a question of a process, the very charges are suspect. Vague offences of "spreading false news" and association with the Muslim Brotherhood are not consistent with international human rights standards.While the Greens have suggested considering sanctions, the government is right not to pursue that path yet, for fear of closing off channels to influence Egypt. The politics must be handled sensitively. Abbott is right to suggest "megaphone diplomacy" would not work. Australia has summoned Egypt's ambassador, and is attempting to contact the President. The case is delicate, because elements in Egypt will not wish to bow to foreign pressure, or give special treatment to Westerners.If political pressure does not work, however, further escalation may be needed. Apart from sanctions, Australia could bring diplomatic pressure on Egypt through the various United Nations human rights bodies in Geneva, as well as by working with the countries of the Organisation of Islamic Co-operation.Australian barrister Geoffrey Robertson has suggested Australia could sue Egypt in the International Court of Justice, hot on the heels of Australia's victory in the whaling case against Japan. Both Egypt and Australia have accepted the binding jurisdiction of the court. Both are also parties to the International Covenant on Civil and Political Rights, which protects the right to a fair trial.Such a case would be novel. In the world court's near 70-year history, countries have very rarely sued each other on human rights grounds alone. Countries often fear that doing so would invite reciprocal claims. Australia has plenty of human rights skeletons in the closet, not least of which is the indefinite detention of 54 refugees on undisclosed national security grounds, most for five years already. The UN Human Rights Committee found last year that this is illegal detention without due process, inhumane treatment, and a failure of judicial protection.Australia is right to protest Greste's treatment, but we can hardly moralise about an uncivilised Egypt. Egypt may well answer that its legal processes are not so different from Australia's.None of this is a reason not to sue Egypt. Countries should more actively enforce human rights in the international court. Human rights should matter to us as much as whales or territory. If that encourages other countries to shine a legal light on our human rights record, that too is a good thing.First published in the Sydney Morning Herald. Read the original article. © 2002-2015 The University of Sydney. ABN: 15 211 513 464. CRICOS Number: 00026A. Phone: +61 2 9351 2222. Authorised by: Dean, Faculty of Law. Contact the University | Disclaimer | Privacy | Accessibility

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TSPR Playlists Federal Judge Rules NSA Bulk Phone Record Collection Unconstitutional By Carrie Johnson Dec 16, 2013 TweetShareGoogle+Email Originally published on December 16, 2013 3:31 pm A federal judge in Washington says the National Security Agency's program for bulk phone record collection violates Americans' reasonable expectation of privacy. The ruling (pdf), however, has been stayed pending a likely appeal. Judge Richard Leon says the sweeping NSA collection of U.S. phone metadata constitutes an unreasonable search or seizure under the Fourth Amendment. The judge says the Smith v. Maryland Supreme Court ruling the Obama administration has used to underpin that program involved only a short period of collection, not the years-long approach the NSA has been taking based on advances in technology. In sometimes blistering language, Leon, who was appointed by President George W. Bush, says times have changed since 1979, when Maryland was decided. Leon says advances in technology and people's use of cellphones mean that old case law no longer holds. In the Maryland case, the Supreme Court found that dialing a number was akin to calling an operator and asking to be connected to someone. When you hand that information to a third party, the court found, a person loses his expectation of privacy. Police, therefore, did not need a warrant to obtain "pen register" data from phone companies. The Obama administration has argued that the metadata — things like number dialed, time and duration of call — it collects in bulk are likewise exempted from Fourth Amendment protection. In his opinion, Leon also questions the government's assertion that this program is designed to protect Americans. "Turning to the efficacy prong, the Government does not cite a single instance in which analysis of the NSA's bulk metadata collection actually stopped an imminent attack, or otherwise aided the Government in achieving any objective that was time- sensitive in nature," the judge writes. The judge has ordered authorities to stop collecting data on two Verizon cellphone accounts. One belongs to conservative lawyer Larry Klayman, a plaintiff in the case. But the judge has agreed to hold off on enforcing his decision to give the Justice Department time to appeal. A spokesperson for the Justice Department said they reviewing the court's decision. "We believe the program is constitutional as previous judges have found," Andrew Ames said. "We have no further comment at this time." A similar case filed by the ACLU is moving through the courts in New York, but no ruling has emerged yet. One of the challenges could wind up at the U.S. Supreme Court. Update at 3:08 p.m. ET. Without Trampling Civil Liberties: Colorado Sen. Mark Udall, who has led the charge along with Sen. Ron Wyden of Oregon, in opposing some NSA programs, hailed the decision. "The ruling underscores what I have argued for years: The bulk collection of Americans' phone records conflicts with Americans' privacy rights under the U.S. Constitution and has failed to make us safer," Udall said in a statement. "We can protect our national security without trampling our constitutional liberties. This court ruling only underscores the urgent need for Congress to act and pass my bipartisan bill to ensure the NSA focuses on terrorists and spies — and not innocent Americans."Copyright 2014 NPR. To see more, visit http://www.npr.org/. TweetShareGoogle+EmailView the discussion thread. © 2016 Tri States Public Radio

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Estás aquíPrincipal - Internet Intermediary Liability in Nigeria: New legislation threatens internet freedom Internet Intermediary Liability in Nigeria: New legislation threatens internet freedom Average: Select ratingCancel ratingPoorOkayGoodGreatAwesome Your rating: Ninguno Average: 4.3 (3 votes) Por Maureen Nwobodo para APCNews NIGERIA, 26 August 2013 Maureen Nwobodo, a Google policy fellow supporting APC’s work on intermediary liabilities from Nigeria, analyses how new legislation is using the private sector to police the flow of information online. Many countries have made moves to make internet intermediaries (such as cybercafés, internet service providers and telecom operators) liable for the sort of content posted at their web-space/network by its users, thereby indirectly using them to police the flow of information. These practices, which have a negative impact in the users freedom of expression, information and association, are currently under debate in many African countries. If internet intermediaries are made liable for information shared by third parties on their network, the potential of the internet as a platform to access and produce information could be hampered. In Nigeria the issue of intermediary liability has become increasingly pressing. Recently, text messages and phone calls were used to coordinate a bomb explosion in the country. As a result of the ensuing insecurity and unrest in the country, telecommunications companies, now almost as popular as Internet Service Providers, have come under greater scrutiny. This prompted discussions around the role of telecom service providers as intermediaries for planning violence and other illegal activities, and currently a new law is being proposed through the Telecommunications Facilities (Lawful Interception of Information) Bill 2010 at the House of Representatives in the Nigerian National Assembly. Before the emergence of telecom operators as providers of internet services to the general public, cybercafés were the most available means of accessing the internet. But their vulnerability to criminal activities prompted the Economic and Financial Crimes Commission to extend the parameter of its work to include the raid of cybercafés that were suspected to be havens for cybercriminals and putting into place provisions that threatened clients privacy and burdened owners with costly administrative practices. A further measure affecting internet intermediaries is the proposed Copyright Amendment bill, which previously included a limitation of liability clause. The bill would introduce liability to intermediaries and also oblige intermediaries to police copyright infringement without making provisions for appeals by people who are accused of breach. The bill may also put cybercafés at risk of disconnection of service for copyright infringements by their patrons, such as downloading and sharing. With regards to enforcement, the bill indicates that the Nigerian Copyright Commission (NCC) may have a major role to play. Should this bill become law, it might seriously impact the ability of Nigerians to access and share information on the internet, and would counteract positive developments, such as the introduction of the Freedom of Information Act (FOI)3 in 2011. At the moment, the Copyright Amendment bill is still in its early days. Intermediaries, content owners and the general public still have time to take part in debate and advocacy which will determine the final form of the bill. APC is currently working with Paradigm Initiative Nigeria on a project to support this public discussion. The project will contribute to ensuring access to information by creating two guides on intermediary liability: a ‘need to know’ guide for the media and other content producers to help them understand and navigate internet intermediary liability in African contexts and a ‘best practice’ guide for ISPs and internet regulators to aid in drafting internet intermediary laws. APC will also be hosting events to stimulate discussion, which will be shared and circulated widely as the project continues. Photo by Yishay Mor via Flickr . (FIN/2013)

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CNN Europe CNN Asia On CNN TV About CNN.com The Supreme Court ponders coerced confessions and the Fifth Amendment By Sherry F. ColbFindLaw ColumnistSpecial to CNN.com FINDLAWFOR THE PUBLICSelect a topicAutosBankruptcyConsumerCriminal LawDivorceEmploymentEstate PlanningFamilyImmigrationLandlord-TenantPersonal InjuryTaxes Legal commentary from FindLaw's WritLAW DICTIONARY (FindLaw) -- This term, in Chavez v. Martinez, the U.S. Supreme Court will decide a question that has divided federal judges for some time. The question is whether police officers violate the Fifth Amendment when they coerce a confession out of a suspect. To be more precise, the question is whether a failure to adhere to the "Miranda warning" requirements -- the suspect being told the he/she has the right against self-incrimination -- violates the Fifth Amendment, even if the confession is never introduced in court. Or, put another way, does the violation happen when the confession is coerced, or when it is offered in Court against the defendant? A person unfamiliar with the nuances of Supreme Court precedent might think the question an easy one. From a cultural standpoint, a person in custody has the "right to remain silent." Everyone who has watched a police TV show knows that. If police do not respect that right, they violate the Constitution � and they do so as soon as they fail to give the warnings. Isn't that correct? The answer is not as simple as it might seem. The Fifth Amendment right against compelled self-incrimination has taken three doctrinal paths that are sometimes in tension with one another. The case now pending before the Supreme Court brings attention to that conflict and thus requires the Court to clarify the meaning of the Fifth Amendment privilege. Custodial Interrogation: The first doctrinal path The 1966 decision in Miranda v. Arizona tells us that to protect an arrested suspect from custodial pressures, the police must administer a set of familiar warnings. They tell the suspect that he or she has a right to remain silent; that if that person gives up their right to remain silent, anything he or she says may be used against him or her in court; that the accused has a right to an attorney's presence during interrogation; and that if that person cannot afford to pay an attorney, the court will appoint one. The Supreme Court created this array of rights as a "prophylactic" measure intended to safeguard an underlying constitutional right against compelled self-incrimination. Previously, judges had been having a difficult time determining on a case-by-case basis whether an arrested suspect's confession was "voluntary" or not. Accordingly, in Miranda, the Court designed a script that would relieve judges of that burden, while simultaneously giving suspects greater control over their custodial environment. If police failed to adhere to the Miranda rules, the Court said, then the suspect's statements in response to interrogation would be inadmissible at trial. The truth is that no one ordinarily has a "right to remain silent." When police ask us questions about events that do not call for self-incriminating statements, we must answer those questions. It is every person's duty to cooperate with law enforcement and to facilitate the process of investigating a crime. Suppose the police investigating a homicide were to ask you, for example, "did your friend John Doe tell you anything about what he did to his wife?" You probably do not have the right to remain silent. You have recourse to the Fifth Amendment privilege only if your speaking will put you at risk for prosecution. Similarly, imagine that you are called to testify against your friend John Doe at his subsequent murder trial. You still do not have a general right to remain silent; indeed, a judge can order you to answer the prosecutor's questions and jail or fine you if you nonetheless persist in refusing. As in the context of investigation, assuming that your answers to the questions would not be self-incriminating, you have no Fifth Amendment right to refuse to cooperate at trial. Why then does Miranda provide greater protection to suspects in custody? It does so because we make two reasonable assumptions about a situation in which the police interrogate a person in custody. First, we assume that the purpose (and effect) of the questions is to call for self-incriminating disclosures. Second, we presuppose that the experience of being in custody is inherently coercive enough to suggest that a police officer's questions carry an implicit order to answer them. These two assumptions, taken together, lead to the conclusion that a suspect who responds to interrogation while in custody is presumptively providing compelled, self-incriminating disclosures. As such, these disclosures are inadmissible at the suspect's criminal trial in the absence of the Miranda safeguards. Immunity: The second doctrinal path Remember, it is only self-incriminating statements that cannot be compelled. Accordingly, the Supreme Court has said that removing the possibility of a future criminal prosecution effectively eliminates a suspect's Fifth Amendment privilege. Take a simple case: I commit the crime of "outdoor pretzel eating," banned by statute in my state. Police confront me and ask "Are you now or have you ever been an outdoor eater of pretzels?" I refuse to answer the question on Fifth Amendment grounds. Given existing law, that refusal represents a legitimate exercise of my Fifth Amendment rights, and the same would hold true if I were asked the question in a court of law. Now assume that the legislature of my state later repeals the statue banning outdoor pretzel eating, and the Supreme Court of the state announces that under the Nutritional Due Process Clause of the State Constitution, any statute banning outdoor pretzel eating is and always has been null and void. If police (or lawyers in court) now confront me and ask whether I ate pretzels outdoors, I can no longer successfully invoke the Fifth Amendment. My statement has been cleansed of its "self-incriminating" content and may now be compelled without violating the Fifth Amendment privilege. On the basis of such reasoning, the Supreme Court has held that when a person refuses to answer a question on Fifth Amendment grounds, the State can overcome that refusal with a grant of what is called "use and derivative use" immunity. "Use and derivative use immunity" means that neither the statements of the witness nor any evidence derived from the making of those statements may be used in a future criminal prosecution of the witness. Once granted such immunity, a person must answer even questions calling for what would otherwise be self-incriminating disclosures. The immunity doctrine appears to rest on a particular view of the Fifth Amendment. Under this view, the Amendment does not grant a right against being forced to say particular facts about oneself. What it grants instead is a right against being forced to provide material for current or potential future prosecution of oneself. It would seem that on this approach, the constitutional violation takes place � if at all � at the moment when the compelled speaker's words (or some evidence derived from those words) are introduced against him at a criminal prosecution of him. The Fifth Amendment right, in other words, is a trial right that ripens only at a prosecution, not a right against compelled self-incrimination per se. The penalty cases: The third doctrinal path Though the immunity cases � as noted above � suggest that without a criminal prosecution, there can be no Fifth Amendment violation, we must also confront the penalty cases, which tell a different story. These are cases in which the Supreme Court addressed the following scenario: a government employer tells an employee to answer a question calling for self-incriminating information, or else, if she refuses to answer, lose her job. The Supreme Court held in these cases that giving an employee such a choice violates her Fifth Amendment right against compelled self-incrimination. Therefore, the government employer who has burdened an employee in this way cannot fire her for refusing to answer the question. (If the employee does answer the question, moreover, her answer is automatically immune from use and derivative use in any future prosecution of the employee.) The penalty cases pose a challenge to the "Fifth Amendment as merely a trial right" theory. If the employee had no right to remain silent, but only a right not to be prosecuted with compelled statements, then the employer would, contrary to the Court's holdings, be able to fire the employee for refusing to answer its question. Only if the employee agreed to answer the question would there be a constitutional mandate: the exclusion of her answer (and any evidence deriving from her answer) at a future prosecution of the employee. The fact that the firing may not be carried out without violating the Fifth Amendment, however, suggests that even in the absence of any criminal trial, the compulsion alone � here, the "incriminate yourself or else I'll fire you" threat � is in itself objectionable. So what do we make of these three paths? In summary, then, the Court's three doctrinal paths have developed as follows: First, the Supreme Court has said that when a suspect is in custody, she has a special right to remain silent (on the assumption that any questions will call for self-incrimination and that any answers given will be less than voluntary). Second, outside of custody, the Fifth Amendment privilege may be eliminated by removing the risk of criminal prosecution, either through immunity or through law reform: removing the risk of prosecution thus renders the statements non-self-incriminating for Fifth Amendment purposes. And third, a government employer may not subject an employee to the choice of self-incrimination or termination, regardless of which way the employee reacts to that choice. The three lines of cases can be read to point to a very specific definition of the Fifth Amendment privilege. It is a right not to be compelled to say anything that could potentially � from the perspective of a suspect at the time she experiences compulsion � expose her to future prosecution. Not only does the precedent suggest this definition of the privilege, but also the definition is a sensible one. It guards against the evil of placing a person in a position of having to provide statements that put him at risk of prosecution. This position is cruel because of the fear and uncertainty it necessarily imposes upon a suspect. Thus, if there has been a prior immunity grant, or prior, final judicial invalidation of the criminal law at issue, the Fifth Amendment right does not apply. Otherwise, however, it is the compelled risk itself that is prohibited � whether or not it is ultimately realized through prosecution or firing. That leads us, finally, to the question the Supreme Court must answer this Term: If a suspect is subjected to questioning that compels self-incriminating statements in custody � including compulsion that takes the form of a Miranda violation � has he suffered a Fifth Amendment violation at the moment of that compulsion? The answer, the Court should hold, is yes � whether or not the suspect is ever brought to trial. That is the best reading of the precedents, and it suggests that in the case before the Court, the respondent's Fifth Amendment claim should prevail. Sherry F. Colb, a FindLaw columnist, is a professor at Rutgers Law School in Newark, New Jersey.

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Peterson faces arraignment Wednesday Scott has denied killing his wife Laci and their unborn child. Prosecutors: Peterson used truck to move Laci's body Audio Slide Show: Peterson case • Judge rules Scott Peterson to stand trial • Peterson skips testimony about wife's remains • Transcript of Peterson, Frey phone call • Criminal complaint: People v. Scott Peterson (FindLaw, PDF) • Court TV.com: Case coverage YOUR E-MAIL ALERTS Laci Peterson MODESTO, California (CNN) -- A year ago, Laci Peterson was living anonymously in the quiet confines of Modesto, looking forward to the joys of the Christmas season and the birth of her first child, a boy that she and her husband, Scott, had decided to name Conner. Nearly a year has gone by and still the nation is riveted by the saga of her disappearance and death. Scott Peterson will stand before a judge Wednesday to be arraigned on charges he killed his wife and their unborn child -- charges that could one day result in his own death. During what is expected to be a lengthy and hard-fought hearing in Stanislaus County Superior Court, Scott Peterson's high-profile defense attorney, Mark Geragos, will argue a flurry of motions, including a demand that his trial be moved away from Modesto. The hearing is scheduled to get under way at 8:30 a.m. (11:30 a.m. EST). Geragos is also expected to argue the charges be dismissed because of insufficient evidence, even though Superior Court Judge Al Girolami ruled just two weeks ago that prosecutors had introduced enough evidence to bind Peterson over for trial, after a 12-day preliminary hearing. (Full story) Peterson, 31, has pleaded not guilty, insisting he did not kill Laci or their unborn son. Wednesday's arraignment will also include setting a trial date, although prosecutors say a trial could be delayed by the defense's legal motions. In June, Girolami ordered participants in the trial, including attorneys and investigators, not to talk to the media in an attempt to combat the explosion of pre-trial publicity. Wednesday, the judge will decide whether to continue that restriction. He will also consider whether Peterson's truck and nearly $15,000 in cash -- seized as evidence in the case -- should be returned. The defense contends the truck and the money should be returned because they are not critical evidence and because the seizures have created a financial hardship for Peterson's family. But prosecutors filed court papers Tuesday saying Peterson's Ford F-150 pickup truck was "an instrument used in the murder of Laci Peterson" -- and contained Scott's blood in the cab, a possible sign of a struggle in the killing. "Such evidence is relevant and admissible here in that the people contend that the pickup truck was an instrument used in the murder of Laci Peterson," the prosecutors say in some of the most detailed information about their case to date. (Full story) The judge is also expected to set a schedule for hearings on defense motions challenging evidence in the case, including information generated by wiretaps, tracking dogs, a hypnotized witness and devices used to track Peterson's vehicles. Laci Peterson, 27, was last heard from last Christmas Eve. Scott Peterson told police that he left to go fishing in San Francisco Bay that morning and she was not there when he returned late that afternoon. Her disappearance set off a massive search that triggered nationwide media interest -- publicity which, in turn, alerted a Fresno massage therapist named Amber Frey that her new boyfriend, Scott Peterson, had a missing wife in another city. Frey went to police and began recording her phone calls with Peterson. Though she was not called to testify during the preliminary hearing, she is expected to be a key prosecution witness in the trial. (Transcript: Frey-Peterson phone call) In April, the bodies of Laci Peterson and the couple's unborn son washed up on the eastern shore of San Francisco Bay, just miles from where Scott Peterson told police he had been fishing Christmas Eve. Days later, he was arrested in San Diego and brought back to Modesto to face murder charges. He remains in jail. Prosecutors plan to seek the death penalty. CNN's Rusty Dornin contributed to this report. Area of Practice Divorce

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The scandal of civil forfeiture If it didn’t involve police and the holy war on drugs, Massachusetts conservatives would be outraged over the multi-million dollar slush funds, seized from private citizens in a mockery of due process, that some politicians and heads of municipal departments can use, without transparency or oversight, for pet projects and favored constituents.The civil forfeiture system in Massachusetts generated $33 million for district attorneys and local police forces over three years, an investigation by the Daily News has found. And that’s not counting the millions seized by the feds, including Carmen Ortiz, who has taken prosecutorial overreach to new heights. Her attempt to seize a Tewksbury motel from its elderly owners just because a few drug deals took place there earned a rare judicial slap-down.As I argue in an editorial today, the civil forfeiture system is a mess on constitutional, political and practical grounds. Reform is overdue, and it should begin by taking decisions over property seizures away from the people who would receive and spend the money.

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You are here:HomeNews and EventsEquity NewsFrankie Boyle wins libel case Frankie Boyle wins libel case Comedian Frankie Boyle has won £54,900 in damages after a High Court jury concluded that the Daily Mirror had libelled him by describing him as "racist", the BBC has reported. He told the court that the paper had defamed him with an article published on 19 July 2011. The Mirror's defence was that the comments were made "on the basis of truth and fair comment" but the jurors did not agree. Boyle was awarded £50,650 after concluding that the racist description was defamatory. He was given further damages of £4,250 after the jury found the Mirror's report saying Boyle had been "forced to quit" Mock the Week was defamatory. The comedian said The Daily Mirror newspaper had "misunderstood" the context of his use of language in jokes, adding the accusation of racism "goes against everything I've tried to do in my work, to do in my life". He said he had been "pretending" to be someone with racist views during the episode. He said he had "actively campaigned" against racism and he thought it was "important" to highlight the issue in his routines by mocking the attitudes of racists, whom he "despised". Equity, which has a strong policy in favour of the freedomn of artistic expression, has welcomed the judgement. Equity News Equity Magazine

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http://www.freedomworks.org/content/riaa-sledgehammer Press Release The RIAA Sledgehammer The battle between the Recording Industry Association of America (RIAA) and Internet music downloaders continues to rage, and is beginning to take its toll, not just on musical mutineers, but on the Internet community as a whole. Using the broad reach of the Digital Millennium Copyright Act (DMCA), the RIAA is pressing Internet Service Providers (ISPs) into service, demanding they turn over the names of potential copyright violators. The problem is, however, that the RIAA is using a sledgehammer on a pin, and, unfortunately, that sledgehammer is available to virtually anyone who cares to wield it. The DMCA was passed by Congress in 1998 with strong support from copyright holders to staunch the free flow of copyrighted materials online. The advent of file swapping technologies such as Napster and Kazaa only made the task more challenging. Napster, with an aggressive attitude and a central repository of material for download, was quick to draw fire and vulnerable to legal challenges. However, newer file sharing technologies like Kazaa are less tangible; they have no central database of downloads. Instead, files reside on the hard disks of individual users, making the job of tracking down copyright violators that much more difficult. This makes them a more elusive legal target, and the courts have refused to ban these file-sharing technologies simply because they can be used for illegal purposes. So, using the DMCA, the RIAA is forcing ISPs—from broadband providers such as Verizon to college network administrators—to do their dirty work and ferret out illegal file sharing. One victim, college student Jesse Jordan, has become somewhat of a folk hero, according to Rolling Stone. After creating a search engine to facilitate file sharing, he was sued, along with three other college students who made similar search engines. The RIAA sought $150,000 for each illegal download, for a total of $900 million. Jordan settled for $12,000 (roughly what he had saved in high school to pay for college), and the others settled for similar amounts. Since then the online community has responded with donations to Jordan that total covered full $12,000. While music fans may be sympathetic, the RIAA has used the courts to pursue these cases whenever possible, and subpoenas have been served to broadband providers, colleges, and others that may be able to provide the names of individual music downloaders. Online sites, such as the Electronic Frontier Foundation have established databases for Internet users to inquire whether their usernames have been subpoenaed. Verizon, a large broadband ISP, has challenged the use of these subpoenas every step of the way. To date, however, the courts have sided with the RIAA, which has only encouraged more aggressive action. The RIAA has unleashed a blitz of subpoenas against ISPs and universities, with the number served already topping 1,000. These actions have led other ISPs to join the opposition to RIAA’s heavy-handed tactics. After receiving more than 200 subpoenas Pac Bell, which owns a large ISP, also filed a lawsuit against the RIAA. Some universities, such as MIT and Boston College have refused to respond to subpoenas, and others may be considering similar actions. Elsewhere, university administrators are incorporating new guidelines and instructions for students in the face of hard-ball tactics from content providers. The University of California, Berkeley, estimates it has already spent more than $15,000 processing DMCA related requests. Beyond the burden of dealing with the RIAA blitz, the subpoena process outlined in the DMCA poses significant privacy problems. In fact, it bears no semblance to what most people consider a subpoena to be. Traditionally, a subpoena is sent to a judge, who examines its merits and then decides whether it should be issued. The DMCA simply requires a copyright owner to submit a one-page request to the clerk of the court who then issues the subpoena, providing the person making the request unlimited access to private information in search of potential copyright violations. To make things worse, the definition of copyright is extremely broad, which offers the potential for abuse from almost anyone seeking access to personal information about others. Fortunately, problems of the DMCA have not gone unnoticed. Senator Norm Coleman (R-Minn.) has called on the RIAA to provide answers about its latest flurry of subpoenas, claiming the net has been cast too widely and that processing the subpoenas is creating a backlog in the D.C. District Court. While copyright concerns are valid in an online world, Congress must revisit the issue and re-assert the primacy of privacy in any attempt to address issues of file-sharing. Internet service providers are being placed in the position of having to intrude on their customers, and those customers are having to relinquish their privacy based on nothing more than allegation. But Congress needs to act quickly; the floodgates are open and the subpoenas are multiplying. The RIAA is also working to export the DMCA, urging the European Parliament to include similar measures in its directive on intellectual property. Ultimately, however, it may take the courts to sort out the interests at stake. Verizon’s appeal will be heard in September, and other cases are moving forward as well. To date, the lawsuits have addressed only the DMCA’s statutory, language; the subpoenas have yet to be challenged as unconstitutional. But, in the end, it may be that the threat to privacy can only be checked through a constitutional challenge to a law that expands private police powers at the expense of privacy.

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» Forums » The FunTrivia Community » Current Events » Latest school shooting Register User Forum List Active Topics FAQ Topic Options #956369 - Wed Dec 19 2012 02:54 PM Re: Latest school shooting [Re: flopsymopsy] Why? Not sure, but the Second Amendment to the US Constitution makes no specifications as to the type of firearm. And in fact, the Brits have similar legal wording from 1688 which says "Subjects which are Protestants may have Arms for their Defense". That was revised over time of course lol.just a few examples of other countries that have a related law?Mexico"Article 10. The inhabitants of the United Mexican States have the right to possess arms within their domicile, for their safety and legitimate defense, except those forbidden by Federal Law and those reserved for the exclusive use of the Army, Militia, Air Force and National Guard. Federal law shall provide in what cases, conditions, under what requirements and in which places inhabitants shall be authorized to bear arms."[Canada (although we don't have a "legal" right to have firearms, it's certainly not illegal to buy one)Cuba: Chapter 1, Article 3 of the Constitution of Cuba states the following: "When no other recourse is possible, all citizens have the right to struggle through all means, including armed struggle, against anyone who tries to overthrow the political, social and economic order established in this Constitution."North Korea: Chapter IV, Article 60 of the Socialist Constitution of the Democratic People's Republic of Korea (North Korea) "The State shall implement the line of self-reliant defence, the import of which is to arm the entire people, fortify the country, train the army into a cadre army and modernize the army on the basis of equipping the army and the people politically and ideologicallyUnder Sharia law, there is an intrinsic freedom to own arms. Switzerland: Under Swiss law, all adult males who have received training in the Swiss armed forces are reservists who are required under law to keep their official firearms at home. According to the gun law of 1999 (larm99), automatic weapons like the Swiss army assault rifle have to be stocked separately of the bolt, which has to be in a locked place. Interestingly, Switzerland has one of the lowest crime rates in the world, and one of the highest gun ownership rates in the world.I'm inclined to think that gun violence is more about "cultural attitude" (as agony stated) rather than laws or the number of guns owned per capita. I sincerely doubt that changing the constitution of the US will have any effect regarding drug lords etc using automatic weapons to get what they want. And don't be so quick to dismiss Mehaul's comments. I'm not a believer in conspiracy theories, but it's been quite obvious that more than a few "wackos" have slipped through the cracks of psych practitioners, the FBI and the Homeland Security system that is costing US taxpayers an enormous amount of money LOL. I'm also inclined to think that the "media" needs to go away. There are too many reporters regurgitating really stupid comments. And yes please, let's not post the name of the shooter and who cares what his/her reasons are? Whatever they are, they're clearly not what a sane person would think. Absolutely no need to "glorify" them. Edited by Jakeroo (Wed Dec 19 2012 03:25 PM) #956373 - Wed Dec 19 2012 03:25 PM Loc: Northampton England UK As you rightly say, we had laws about bearing arms but we have revised them with the passage of time and with changing circumstances. When the USA's Second Amendment was phrased, no one knew about automatic or assault weapons. They envisaged a world of muskets, where the charge was loaded down the barrel with a rod, and gunpowder ignited in the flash pan. Then the barrel would be cleared, another musketball loaded, and gunpowder ignited. (Not necessarily in that order!) It was not a quick process but everyone was slow to the same extent. But while guns have changed beyond all recognition, the USA has kept the same law, has interpreted it as meaning that anyone could own any weapon, and many have fought to keep it as though it was unchangeable and inalienable even though the people who've died because of it are Americans.As you say, the Swiss have high gun ownership because of their military obligations to repel invaders but they are trained to use those weapons and are required to keep them secure. As British holders of guns are required to do. The Mexicans have put a caveat into their law about federal provisions, Cuban law is presumably designed for action against the USA if they get invaded, and I refuse to consider North Korea as being an example of anything except governmental lunacy, lol.It's interesting that if you look at the rates of gun homicide around the world, the USA isn't the worst but almost all the countries that are worse include violent South American states associated with drugs, and South Africa, which is known to have terrible problems of its own. It's not a grouping of countries I'd like my country to be associated with. Christinap Registered: Sun Jul 27 2008 Living in a rural area we have a gun in the house, a rifle. It is used for rodent control - an ongoing problem when you are surrounded by fields, and pigeon shooting, the local farmers often ask local gun owners to help them with pigeon control. In exchange we get the odd haunch of venison or a brace of pheasant. My husband has had a gun licence for over 30 years. Even then it was not easy to get. Two references were required, and they were checked up on. The proposed location of the gun cabinet and security thereof were checked by the Police before it was installed and again afterwards. The ammunition is kept separately, again in a secure location. Both are out of sight and would not be accesible to burglars, the Police were very clear about making sure it could not fall into the wrong hands if something happened. Every year the Police come round and inspect our gun cabinet to ensure that it is secure. The licence is checked against the actual gun to ensure they match, it isn't for just any old rifle, it is for one specific rifle. Change the gun you have to take the licence into the Police to get it amended. Although not a requirement we keep a log of when the rifle is used, and again the Police do look at this when they come round, and there hasn't been a single year when they havn't come round to check everything is in order. Ammunitions sales are reported to the Police by the local gun shops, so any out of the ordinary, extra to normal purchases by us or anyone else would be spotted and, hopefully, checked out and acted on.If we were to have a burglary or something there is no way the gun would be taken out and used. Even if the thought crossed either of our minds by the time everything was unlocked and the gun loaded the burglars would be long gone. No, far more likely to defend ourselves with a cricket bat or kichen knife. [Re: Christinap] Loc: near Stafford, Virginia USA Maybe this story can shed some light as well. If it weren't for proper training, two young people could have been dead. Originally Posted By: dg_daveMaybe this story can shed some light as well. If it weren't for proper training, two young people could have been dead. Yes, but on the other hand the events in Connecticut rather proved that a teenager having access to their parent's weapons is not such a great idea. Proper training can sometimes be a lifesaver, but it's not some magic answer. It's not at all unusual for police to be killed in the line of duty - armed, trained, and usually alert. Any idea that if we just change one thing the problem will go away is, in my opinion, misguided. Instead, reasonable and sane action on several fronts will help, but not not solve, the problem. To do nothing because any one action isn't the complete answer is fool-hardy, though, I thinkWe do have some useful data that can guide the public dialogue. Many countries have some form of gun control - it would seem obvious to track what has happened there, and learn what does and does not work. We also know something about what can happen when there is a gun in a household - while by no means is there injury in every armed household, if someone IS injured, the chances are much higher that it will be a member of the household, not some intruder or enemy. The idea from the NRA yesterday about armed guards at every school strikes me as the height of folly. There are not unlimited funds for this, so who would be hired? Poorly trained and poorly vetted individuals, especially in poorer districts. As a parent, I do not find the idea of the kind of person who would be attracted to strutting around a school with a gun on his hip reassuring. What happened in Connecticut is appalling, but it doesn't change the reality that most children are not harmed by a crazed stranger, but by someone close to them with some authority over them. I'd personally be a lot more afraid of those guards, looking at it statistically.

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