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Preview: Appellate Law & Practice

Appellate Law & Practice

A blog devoted to appellate law and advocacy

Published: 2008-12-10T16:15:09-05:00


Giving it up.


I am going to be discontinuing my participation in this blog in the next week or so. If you want someone to blame, blame 1) non-lawyers; 2) furries; and 3) the victims rights/tort reform industry.

CA1: large law firm loses case on behalf of client


US Securities & Exch v. Tambone, No. 07-1384. This is a close case. On the one hand, the government is bringing an enforcement action regarding misleading prospectuses to sell mutual funds. On the other hand, the defendants are represented by...

CA1: It’s official. Everything is mail fraud.


US v. Hebshie, 07-2339 (12/4/08). This is a federal arson case. As you know, the framers of the constitution really envisioned the federal government prosecuting insurance fraud (or, as they say, “mail fraud”). The first says that pretty much any...

CA1: no preemption where no conflict – just assistance


Fitzgerald v. Harris, No. 08-1306 (12/5/08) holds that the Allagash Wilderness Waterway ("AWW"), Me. Rev. Stat. Ann. tit. 12, § 1882 is not preempted by the Wild and Scenic Rivers Act ("WSRA"), 16 U.S.C. § 1271 et seq (which they...

CA1: Drinking and driving isn’t accepting responsibility


U.S. v. Jordan, No. 08-1432 (12/5/08). The defendant committed some criminal acts while out on bail – namely drinking and driving. At sentencing, the District Court denied an offense level reduction under § 3E1.1 based on his putative acceptance of...

Another thing the Victims Rights Industry is Silent About


Most people know that the Victims Rights Industry exists to troll lay people into think that lawyers care about them. In reality it is a way for lawyers to earn money writing briefs without having to be accountable to actual...

CA1: proper punishment for a stalker that refused to retain a lawyer before not paying taxes


USA v. Steirhoff, 08-1183. Selya tries to be dramatic. He says “The tale of how the stalker became the stalked follows.” Anyway, the defendant seems like a bad guy because he talked to the police without a lawyer. And he...

CA1: what to do about a shooting of a mentally ill person


Est. of D. Bennett v. Wainwright, No. 07-2169. Mentally ill guy off his meds shoots at some cops. Mentally ill guy gets shot by cops. There issues here of notes. The estate appeared to make a “loss of consortium” argument,...

CA1: surprise! creating false invoices to defraud Uncle Sam is corrupt


U.S. v. Marek, No. 07-2437 (11/26/08). This is sort of interesting. There was an audit by the IRS. The defendants appeared to participate in the audit in good faith. Problem was that they went so far as to procure back-dated...

CA1: making non-lawyers step outside hotel rooms okay


US v. Parker, No. 07-2776. This is some kind of fight between drug dealers, so the First is going to have little sympathy for them. So, being asked to step outside one’s hotel room is not considered a “seizure.” Strangely,...

Can you say this without giggling?


Second, the Commission concluded that the broadcast of Jackson’s exposed breast was shocking and pandering. At least eight government attorneys can, and they put it on p. 8 of the petition for cert. in the Janet Jackson case.

CA1: Plea waiver enforceable


US v. Acosta-Roman, Nos. 07-1238, 07-1239 dismisses an appeal based on an appeal waiver. The defendant argued that because an enhancement wasn’t a condition of the agreement, that the issue can still be raised. But, the First looks at the...

Taft: Video


A video about President Taft can be found here.

CA1: laches and holocaust painting case


Vineberg v. Bissonnette, No. 08-1136. This is a holocaust case. The Nazis forced someone to give up a painting because they were not German enough (strangely this sounds like some of the rhetoric I heard in the last election). Eventually...

CA1: data-mined prescription information not protected speech


IMS Health, Inc. v. Ayotte, No. 07-1945. This is a big case. Essentially pharmaceutical salespeople were using doctors prescription histories (in databases) to generate sales leads and shape their sales pitches. Then, New Hampshire said that was a bad idea...

CA1: Medicare fight over research ends in heroic victory for government


RI Hospital v. Leavitt, No. 07-2673. There is a medicare reimbursement fight. Essentially, teaching hospitals get paid more for the procedures they perform, because everyone seems to agree that it costs more to run a hospital that teaches. The question...

CA1: moody teens, ERISA, and shortening the limitations period


Island View Residential Treatment Center et al v. Blue Cross Blue Shield of Massachusetts, 08-1287. Okay, before I begin, I gotta get something off my chest: I am sorry for what I said about the people that are both partners...

CA1: Girl interrupted was “molested” not “exploited”


National Union Fire v. West Lake Academy, Nos. 07-2190, 07-2204 (11/13/08). This is a fun insurance coverage case. It is pretty rare that case begins with the words “Fourth-party plaintiff Jane Doe (“Doe”)). Westlake Academy is one of those places...

CA1: vindicative license revocation okay due to preclusion


Giragosian v. Ryan, No. 08-1067. One upon a time there once was a gun shop that would give lessons in the sports of shotting-stuffs-man-ship. While being taught the art of shooting, a customer committed suicide. The police chief revoked his...

CA1: declaratory judgments not that preclusive


Andrew Robinson v. Hartford Fire, No. 08-1255. This is an insurance coverage dispute. It would be interesting if this area of practice had more dedicated lawyers, but everyone I meet in it seems obsessed with non-law stuff and does not...