Since 2011. An occasional commonplacing of the U.S. Circuit Courts of Appeal.
Neither an authoritative statement of the law nor legal advice. Quick work.
Returning to the academic and job search dojo for a bit. Good to get a couple weeks (234 decisions) of batting practice in. Still a going concern, and my goal is to accomplish the summaries in one or two hours every weekday morning.
But now, there's a large stack of books on the desk. Cheers.
CB
Claim is ineligible for patent, because it recites abstract mathematical concepts without practical technological improvements beyond increasing statistical accuracy, and, taken as a whole, is embodied as well-known, routine and conventional actions of performing an algorithm on a computer.
(Perhaps. We don't know many things, but we especially don't know Patents.)
As the statutory bar to receiving duplicate funding doesn't look to current eligibility status, a veteran who received funding through one program and therefore chose to forgo another funding source can't later seek to receive the second funding after the eligibility for the first was determined to be erroneous, though non-recoupable.
Habeas petitioner filing after the statutory cutoff on a form filing where the untimeliness was facially apparent had an opportunity to challenge the propriety of the court's taking judicial notice of the dates on the state's docket for their convictions by having leave to reopen at the district court level to argue error, equitable tolling, or actual innocence. Court did not abuse its discretion in initially dismissing the petition as untimely without a reply brief or magistrate's review.
Travis D. Turner v. Secretary, Department of Corrections, et al.
Amended opinion, Concurrences and Dissents from Denial of En Banc.
CONCURRING WITH DENIAL OF EN BANC:
Sufficient injury to the organization for standing.
Substance and revision of opinion congruent with usual en banc process.
DISSENT FROM DENIAL OF EN BANC:
Court is not a Platonic Guardian of the Constitution and laws.
The organizations did not sustain sufficient injury for standing, since the statute doesn't make it more difficult to provide legal services to immigrants. Redirection of resources and diminished client pool are insufficient.
Generally, the statute holds that anyone can apply for asylum, but gives the Executive discretion as to whether to grant it. Panel conflates the right to apply with the right to receive.
DISSENT FROM DENIAL OF EN BANC:
Published motions panel opinions are precedential, and make law of the case.
(En Banc, 215 pp.)
Pro se plaintiff's claim that never explicitly makes the as-applied challenge is correctly read as a facial challenge, since the briefing and argument was conducted with the assistance of counsel.
(Extensive list of English statutes and edicts made against the carrying of (fire)arms from the 14c. onward.)
Colonial history suggests early American acquiescence to firearms limitations outlined in the Statute of Northampton.
Early state enactments generally held that firearms small enough to be concealed could be kept from the public square.
State courts & treatises inconclusive, but generally recognize the government's power to regulate.
The government may regulate, and even prohibit, in public places the open carrying of small arms or arms capable of being concealed. This does not impede the protection of homes or businesses. It is peculiarly the duty of the state to defend the public square. The states assumed primary responsibility for maintaining the king's peace.
Exceptions to regulations were made for persons, places. Surety operated not as a minor penalty but as a strong discincentive to carry arms.
That handguns may be used for defense does not change their threat to the king's peace. The mere presence of such weapons creates terror in the public space. Hawaii's statute makes provision for public officers, hunters and recreational users, and those with a legitimate cause for fear.
Single-officer approval regulatory scheme is not subject to challenge by prior restraint, as the regulations are not presumptively invalid.
Procedural due process claim is speculative, since no licence has yet been denied.
DISSENT:
Unprecedented and extreme holding. First circuit to hold that carrying a weapon in public falls outside of the protections of the Amendment.
Plain text of the Amendment requires right to carry arms. 19 c. State caselaw and federal legislation recognized the right to carry arms.
Statute of Northampton allowed carrying of common arms, not for the purpose of terror. English law was more restrictive of the right to carry arms than was the American. Surety was only actually invoked in extreme cases, implicitly legitimating the norm of peaceably carrying weapons.
"Weapons capable of being concealed" is a novel standard. Heller explicitly contemplates self-defense as a legitimate reason. The responsibility for keeping the peace lies with the people, not with the states.
The right openly to carry arms is within the core of the Amendment. As the regulation destroys the right, it is necessarily unconstitutional.
Pro se complaint should be construed as an as-applied challenge to the enforcement against the plaintiff.
DISSENT:
Should be either construed as as-applied, or allowed to amend. County regulations limiting licenses to working security guards are facially unconstitutional.
Statute that allows for penalties for any violation of a certain section does not permit multiple penalties for multiple aspects of the violation of a single obligation, but rather establishes that any of the violations specified in the statute and associated regulations are subject to the penalty.
Materially similar provision for willful violations of the same obligation that allows for multiple penalties cuts against the idea that multiple penalties should be allowed in the section of the statute that doesn't explicitly mention them.
Tax statutes should be strictly constructed where they impose an obligation.
DISSENT:
The reporting requirement is a procedural element, but the substance of the statute is that each of the foreign bank accounts should be reported.
The use of "violation" as defined by its context in the similar provision establishes that the term should have that definition throughout the statute.
Majority's reading is not strict, but strained.
In ruling the proposed social group insufficiently particular, the IJ erred in not considering the clinical definition of people with intellectual disabilities; the common law definition does not necessarily control.
Although the proposed group of people with intellectual disabilities might commonly be mixed with people with mental illness generally, the relevant question for social distinctiveness is whether the difference can be discerned sufficiently for that subset to face increased persecution. Discrimination based on the manifest symptoms is equivalent to discrimination against the group.
Proposed second social group was insufficiently responded to by the agency, and its rejection was insufficiently reasoned by the IJ.
Petitioner's claim of risk of torture insufficient under the Convention, since the attacks by police are cases of mistaken identity, and maltreatment by the medical workers because of overcrowding and lack of knowledge.
As the petitioner was sufficiently represented by counsel during the earlier criminal proceedings that resulted in the predicate convictions, claiming that the charging documents allege a mental state different from that of the offense charged is an impermissible collateral attack from a second forum.
Court did not plainly err in holding that no mental state was required for the predicate serious drug offenses under the statute.
Concise Daubert analysis is distinct from conclusory Daubert analysis, and therefore is analyzed for abuse of discretion.
Merely establishing the qualifications of the expert is insufficient; the principles and methods used must be analyzed as well. Expert testimony involving theories that had not been tested on that type of machine were within the discretion of the court to exclude, even given subsequent remedial measures by deft. Expert testimony as to causation legitimately excluded, since the expert was speculating as to the amount of weight that caused the machine to unbalance; there was no requirement to let the question of causation go to the finder of fact, since the court has a gatekeeper function with expert testimony.
Absent expert testimony, the strict liability defective design claim didn't present a genuine issue of material fact for trial, since consumer expectations are insufficient objective proof when it comes to industrial machines.
Loss of employment is insufficient harm to establish a claim under substantive due process, as employment is not a fundamental right.
Negligence in not listening to emergency radio dispatches doesn't state a substantive due process claim for a police officer later injured due to lack of assistance. The state-created danger exception to the private danger exclusion in due process analysis can't be invoked here, since it only applies when the state disables people from protecting themselves.
Disregarding a known risk to a public employee or altering work records after the fact are insufficiently conscience-shocking to state a substantive due process claim, and the emotional injury from the latter is insufficient to support a S1983 claim.
Plaintiff did not identify procedural shortcomings in protections sufficient to state a claim under procedural due process.
Monell claim against the municipality wasn't supported by showing of pattern or practice beyond individual acts subject to respondeat superior, which is not a basis for liability in S1983.
Court did not abuse its discretion in denying compassionate release petitioner a reply brief under Due Process after government brief with new medical evidence, since the motion was denied on other grounds.
Denial order did not need to recite basis for denial as to each medical susceptibility, or holding as to each sentencing and factual history element.
Court might have exercised a bit more Constitutional avoidance. Few Lanham Act disparagement claims would succeed if the manufacturers were considered limited purpose public figures.
Although the state's law doesn't distinguish personal libel from trade libel, since there are few examples of the latter in the caselaw, it is reasonable to follow the Restatement rule requiring injurious falsehood -- false statements of specific unfavorable facts -- for trade libel, a standard which requires reckless disregard of the truth.
Reference in sentencing colloquy to an ethnicity shared with the defendant was sufficiently counterbalanced by race-neutral reasoning on the subject, establishing that the court did not rely upon impermissible factors.
Incomplete brain development in the late teens and early twenties is a generic, stock argument, and not a valid mitigating factor.
Because evidence establishes a business plan for eventual profitability undercapitalization is not per se proof of being a mere instrumentality of another corporation.
As there is no culpable conduct establishing that the foreign corporation used their control over the domestic corporation to effect a fraud or wrong on the complainant, there is insufficient basis to piece the corporate veil.
Jurisdiction is proper in the district under the FRCP, since the cause of action arises under federal law, the foreign entity is not within the jurisdiction of any other state, and the exercise of jurisdiction is consistent with the US constitution and laws.
Under Fifth Amendment due process, foreign company sufficiently purposefully availed itself of the American market generally by launching the domestic company and retaining a measure of control over it. The marketing faxes at issue sufficiently relate to the purpose of these minimum contacts, even though the foreign company might not be culpable for the sending of the faxes. Asserting first US jurisdiction over the foreign company is reasonable, since there is a federal interest in the enforcement of the laws, and the plaintiff will not be able to find financial redress from the domestic corporation.
The regulation making culpable under the statute the person whose goods and services are advertised only applies to persons who have some level of knowledge that an unsolicited fax has been sent.
Consistent with agency findings, fax-to-computer transmissions are within the Act, as the receiving machine has the capacity of transcribing the image to paper.
Given proffer of eventual admissibility, the class was correctly certified using unauthenticated telephone logs, as nonexpert evidence may be sufficiently probative at the early stages of the litigation.
As the logs were generated by a machine, they were not hearsay -- hearsay requires the assertion of a person. Court correctly excluded expert testimony.
List of affected phone numbers reasonably necessitated the claims administration procedure.
In a federal class action, the court need not have personal jurisdiction over the defendant as to each plaintiff. The question of jurisdiction looks to the relationship between the defendant, the forum, and the litigation -- it does not depend on unnamed class members.
CONCURRENCE/ DISSENT:
As state courts couldn't resolve the clams of out of state class members, neither can federal courts resolve the claims of those outside its jurisdiction.
14A Determines the due process limits on federal jurisdiction under the 5A in federal court.
The statute doesn't apply to faxes received on computers, since, on its own, a computer can't receive messages from a phone line or print the fax on paper; additionally, Congress listed computers as senders, but not receivers.
Board did not abuse its discretion in discounting the value of affidavits with an attestation that didn't swear to the veracity of the affidavit, although the form used would be acceptable in an Article III court in the circuit.
Board's presumption of delivery is not so irrational as to become arbitrary, especially given the factual context, including lack of return to sender and previous successful deliveries to the address.