Category Archives: Appellate Law

Not Dead Yet

The Volokh Conspiracy links to this opinion by Judge Boyce Martin of the Sixth Circuit, where she declares:

Because collateral estoppel precludes future litigation of one specific issue, and because that is what the state effectively asks us to find, we construe their argument as one for collateral estoppel rather than res judicata, despite the substitution of one term for the other in the state’s brief.

Noting in a footnote: “Because Latin is a dead language anyway.”

But wait! Judge Alice Batchelder rides to the rescue! In her concurring opinion, she writes:

I concur in Judge Martin’s opinion.
I write separately only to express my suspicion that, like the reports of Mark Twain’s death, see The New Dictionary of Cultural Literacy (Third Edition, 2002), the report of the death of Latin in the majority opinion’s footnote 5 is greatly exaggerated.

Hooray for Judge Batchelder! Lingua latina per aeternam!

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AltLaw Beta: Free Boolean-searches of SCOTUS/Federal Courts of Appeal Decisions

AltLaw

AltLaw, the newest and one of the more promising internet legal resources to hit the scene, is now up and running and available for free public advanced searches of case law.

It’s a sort of Google for Supreme Court and Federal Circuit Courts of Appeal decisions, and clearly holds promise to democratize the availability of relevant and useful case law in the States. LEXIS and Westlaw, of course, have long monopolized the availability of such information in any searchable or useful form, and have charged a pretty penny to those that want to easily search case or other resources (via “Natural Language” or the far more powerful, but underused, advanced/Boolean search engines). AltLaw now makes Boolean searching entirely free.

The catch: at startup, AltLaw’s coverage of SCOTUS case law extends fully only back to May 1991, and the Federal Courts of Appeals in a more irregular spread–the 7th Circuit back only to October 1999, and at best, the 1st Circuit back to 1992. Complete details about AltLaw’s initial coverage are posted HERE.

AltLaw is a joint project of Columbia Law School and the University of Colorado Law School. The site touts, amazingly, advanced searching options akin to LEXIS and Westlaw, including proximity searching, Boolean searches, concentration searches, wildcard searches (my fave), among others. The site also intimates that West Reporter Citations will be added.

Yet another step in making U.S. case law readily available to the citizenry, along the lines of what Cornell’s indispensible Legal Information Institute has done, for example, in making the U.S. Code and Code of Federal Regulations, among LII’s many other items, very quickly searchible and accessible for free.

Thanks to fellow appellate litigator Greg May at The California Blog of Appeal, and Harvard’s Info/Law for the story.

Lime

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U.S. Court of Military Commission Review: U.S. v. Khadr

The first hearing of the U.S. Court of Military Commission Review is scheduled to hold its first hearing on 24AUG07. The hearing will hear argument regarding the dismissal of charges against Omar Ahmed Khadr because of a flaw in the Combatant Status Review Tribunals for Guantanamo Bay prisoners. See United States v. Khadr.

yojoe

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Crack v. Cocaine: The Supreme Court to Rule on Decreased Punishment for Powder Cocaine

The Supreme Court added to its docket United States v. Kimbrough, 06-6330, which involves the application of the United States Sentencing Guidelines (“Guidelines”).

Note – Crack cocaine (hereinafter “crack“) is cocaine hydrochloride that is processed with baking soda to form of cocaine capable of being smoked. Cocaine in powder form will be referred to as “cocaine.”

Synopsis – Kimbrough was sentenced to 120 months for possession of 50 grams of crack cocaine. The range under the Guidelines was 168 – 210 months. The judge made the downward departure from the Guidelines based upon his disagreement with the sentencing disparity between crack cocaine and powder cocaine. This disparity in sentencing is known as the “100:1 crack/powder ratio,” which means that a defendant who deals 100 pounds of powder cocaine faces the same punishment as the defendant who deals 1 pound of crack.

Issue – The Court will decide whether a judge may deviate from the Guidelines if he disagrees with the decreased punishment for powder cocaine by giving a shorter sentence than required.

State of the Law – In United States v. Booker, the Supreme Court held that sentence enhancements, under the Guidelines, based upon facts found by the sentencing court and not a jury, violated the Sixth Amendment. The Booker majority remedied this Continue reading

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NMCCA: US v. Ledbetter (Aug 07)

The Navy-Marine Corps Court of Criminal Appeals released U.S. v. Ledbetter, No. 200500009, unpublished op. (N.M.Ct.Crim.App. 14 Aug 2007). SPCM, military judge alone, guilty pleas, Arts 80, 81, 91, 95, 108, and 134. Sentence: 5 months, E-1, forfeiture of $500 pay per month for 6 months, and BCD. Appellant claimed (1) improvident plea to resisting apprehension, (2) he was deprived of right to counsel because trial defense counsel never contacted him regarding submission of clemency matters after NMCCA’s remand, (3) ineffective assistance of counsel prior to first CAX, and (4) post-trial delay.

The Court held: assignments of error 1 and 3 were without merit, and withheld ruling on 4. NMCCA resolved AOE 2 by setting aside the convening authority’s action (the 2nd one) and returned the case to the JAG for “proper post-trial processing.” On remand, the trial defense counsel, LT W, received the second SJAR and indicated by Continue reading

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Lawyering Tip: RSS Legal Feeds

If any of you use RSS readers or depend on the internet for news related to your profession (or simply for enjoyment), you should be familiar with Netvibes. Netvibes is perhaps one of the more elegant and streamlined RSS readers out there. It’s been my intention to post a full review of the site in a future posting.

Until then, I’m publishing my law-related feeds in the shared section of Netvibes. The feeds, almost 50 sites in all, are a compilation of several dozen of the best legal sites and blogs out there, and via Netvibes, makes reading the content quite easy.

Simply float your mouse over a given headline, and you’ll get a bubble with a paragraph selection of the news item or blog post. Click on the headline, and you’ll be given a mini-RSS reader within Netvibes, without actually having to exit to another website. I’ve played around with software-based and web-based readers, including Windows Live, Google, and others, but I’ve continued to return to Netvibes as my main reader. The interface is very fast, and makes quickly locating the articles of interest a breeze.

Harry Lime’s Legal Feeds via Netvibes. Enjoy! And please send any good sites my way, I’d be glad to add to the pot.
HL

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Filed under Appellate Law, Criminal Law, Law, Military Justice, Military Law, Supreme Court, Tech, Windows Vista

Ex-Military Smackdown: Court of Federal Claims Cracks the Whip Against “Razor’s Edge of Frivolity” Claims

In five recent cases last week, two of which are by ex-military members , the Court of Federal Claims has dismissed the cases because “Plaintiff’s counsel has submitted filings which contain numerous errors and exhibit a fundamental misunderstanding of this Court’s jurisdiction.” (emphasis added).  The court referred the matters, along with three other cases, to the Chief Judge under Rule 83.2(d), the rule governing diciplinary proceedings for “misconduct or allegations of misconduct” by the attorney.

The two cases involving ex-military plaintiffs are Janaskie v. United States, No. 06-602C (Fed. Cl. July 31, 2007) and Pope v. United States, No. 06-446C (July 31, 2007).  The other three cases were Locke v. United States, No. 06-629T (Fed. Cl. July 10, 2007), Leshin v. United States, No. 06-637T (Fed. Cl. Jan. 11, 2006), and Cherbanaeff v. United States, No. 06-640T (Fed. Cl. July 12, 2007).  Four, and I would presume all five of the cases have the same plaintiffs’ counsel (though I cannot locate the fifth, Leshin). 

In the two miltary cases, involving a retired U.S. Air Force senior master sergeant and a discharged member of the California National Guard, the plaintiffs both claimed that the Government was required to compensate them for violations of the Uniform Code of Military Continue reading

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