tag:blogger.com,1999:blog-68488398597854467222024-02-18T21:52:38.385-05:00Full Court Passnorman olchhttp://www.blogger.com/profile/08341333463074109432noreply@blogger.comBlogger151125tag:blogger.com,1999:blog-6848839859785446722.post-7410578397969389332012-11-30T10:45:00.000-05:002012-11-30T10:45:40.909-05:00Ahead for the Court of Appeals: Change<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> The composition of the New York Court of Appeals is starting to change. We will get our first look at what lies ahead on December 1. </span><br />
<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> There are two vacancies to be filled in the next few months. Carmen Ciparick has reached the mandatory retirement age of 70, and must step down from the Court on December 31. And the sudden death of Theodore T. Jones has created the second vacancy. A number of the judges are approaching 70 years of age, so even more vacancies lie ahead for the seven-member court in the next few years. </span><br />
<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> While the the Court of Appeals is not as ideologically divided as the United States Supreme Court, Judges Ciparick and Jones were generally seen as two of the more liberal members of the Court along with Chief Judge Lippman. Replacements more conservative then they would, therefore, work an ideological shift in the Court. </span><br />
<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> In accordance with the State Constitution and the Judiciary Law, New York has a 12-person Commission on Judicial Nomination whose members are appointed by the Governor, the Chief Judge of the Court of Appeals, the Speaker of the State Assembly, the president of the State Senate, and the minority leaders of the Assembly and the Senate. Former Chief Judith Kaye is the chair of the Commission.</span><br />
<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> To fill a Court of Appeals vacancy, the Commission must first recommend to the Governor at least three, and not more than seven, persons. At least eight of the Commission members must vote for each person recommended.</span><br />
<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> To fill the vacancy created by Judge Ciparick's retirement, the Commission must make its recommendations by December 1. The Governor must then select one person no sooner than January 1 and no later than January 15. That person's name is then sent to the State Senate for a vote. On March 7 the Commission will make its recommendations to fill the vacancy created by the death of Judge Jones. </span><br />
<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> In recent years there has been much criticism that the Commission recommendation process has been a closed or predictable affair. To create a wider pool of people for the Commission to consider, Judge Kaye has publicly encouraged applications. We will know on December 1 whether her efforts have been successful.</span><span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> </span><br />
<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> Judge Ciparick's retirement has reopened the debate over New York's mandatory retirement age for judges. While Appellate Division judges who reach 70 years of age can be certified two years at a time to continue serving until they are 76 years old, there is no similar procedure for the Court of Appeals. </span><br />
<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> Those favoring the mandatory retirement at 70 maintain that it allows new blood to flow into the judicial system, while those opposed to it note the loss to New York of experienced judges. While age is plainly no disqualification--look at the United States Supreme Court--it is politically unrealistic to expect that New York will amend its Constitution to entirely eliminate mandatory retirement for judges.</span><br />
<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> In light of the political realities, I favor increasing the age to 76. I am concerned that a mandatory retirement age of 70 </span><span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;">creates a smaller pool of candidates for the Court of Appeals</span><span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;">. Court of Appeals judges sit for 14 years, but if an outstanding prospect for the Court of Appeals is 64 or 65, it is highly unlikely that a Governor would select that person for only 5 or 6 years of service. Because Governors want to shape the Court for the long-term, mandatory retirement at 70 eliminates many highly talented lawyers and sitting judges from consideration for the Court of Appeals. </span><br />
<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> Finally, I think New York should enlarge the period of time for public comment on the Commission's recommendations. The Commission will make its recommendations on December 1, and the Governor can make his selection as soon as January 1. If the Commission recommends as many as seven people, 30 days is simply too short a period of time for serious public comment on so many people. </span><br />
<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> A few days ago I wrote about the interview of Justice Scalia at the appellate law conference in New Orleans. Justice Scalia was confirmed by the United States Senate by a 98-0 vote. When asked about more fractious confirmation battles, to my surprise he said they were a good thing: as unelected judges weigh in more and more on matters with social and political consequences, it is a good thing to have members of the public make their views known to the United States Senators who will vote on the nominee. Thirty days to comment on seven recommendations for a position which can affect New York law for the next 14 years, is, in my view, too short a period of time. </span>norman olchhttp://www.blogger.com/profile/08341333463074109432noreply@blogger.com0tag:blogger.com,1999:blog-6848839859785446722.post-15884195652996573392012-11-27T12:10:00.000-05:002012-11-27T12:15:48.962-05:00CLE in the Big Easy<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> There are many conferences and continuing legal education programs for appellate lawyers and judges. In the past I have written that the best I have attended is the annual conference sponsored by the American Bar Association's Council of Appellate Lawyers (CAL). </span><br />
<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> About a week ago I returned from a four-day appellate law program in New Orleans sponsored by CAL, and I will say it again: this is, in my opinion, the best. In attendance were federal and state judges, and appellate lawyers, from across the United States, as well as other countries. I found everyone open, friendly, and frank. </span><br />
<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> From early in the morning to early evening there were excellent programs: musings about the United States Supreme Court from a panel of journalists who report on the Court; discussions of the technology changing appellate practice both for the lawyers and the judges; serious discussions on brief writing and appellate law ethics; reviews of the past Term of the Supreme Court; a look forward at the Court's current Term; and a reception at the Supreme Court of Louisiana. In the Supreme Court building there was a fascinating exhibit on <i>Plessy v. Ferguson, </i>163 U.S. 537 (1896), the United States Supreme Court's "separate but equal" case which began in Louisiana. </span><br />
<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> At last year's program a highlight was a one-hour interview of Justice Sonia Sotomayor. This year it was Justice Antonin Scalia's turn and he, too, was captivating. Most striking for me was his statement that his most important decision on the Court has been <i>Crawford v. Washington, </i>541 U.S. 36 (2004)<i>, </i>the seminal criminal Right of Confrontation case. The ruling has been under attack by some of the other Justices, <i>see e.g., Williams v. Illinois, </i>132 S.Ct. 2221 (2012), and when I spoke briefly to Justice Scalia at the reception which followed the interview, he expressed concern about <i>Crawford's </i>future. </span><br />
<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> An added delight was New Orleans. Jacqueline and I had never been to the city before, and when we arrived I was not immediately impressed. But the hotel in which the conference was held is located in the French Quarter, and with each passing day the city became more and more alluring: music in the air, excellent restaurants, friendly people, the gentle roll of the Mississippi River, and except for Bourbon Street, a relaxing tranquility.</span><br />
<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> The next conference will be held in San Diego from November 14-17, 2013. Mark your calendar and be there. You will not be disappointed. </span><span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> </span>norman olchhttp://www.blogger.com/profile/08341333463074109432noreply@blogger.com0tag:blogger.com,1999:blog-6848839859785446722.post-33719814831339267032012-11-03T14:30:00.000-04:002012-11-03T14:30:54.545-04:00Recovering from Sandy <span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;">As the lights come back on in Manhattan below 34th Street, and subway service returns, I hope all of my readers and their loved ones were safe during the storm, and I wish you a swift return to normalcy.</span><br />
<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> The appellate courts were not immune from Hurricane Sandy. The Appellate Division, First Department, and the United States Court of Appeals for the Second Circuit were closed this past week. The Appellate Division, Second Department, was open most of the week, as was the New York Court of Appeals, which handed down a number of decisions on Tuesday.</span><br />
<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> The Appellate Divisions for the First and Second Departments have issued orders relating to filing deadlines for briefs and other papers affected by the storm. The First Department order can be found on its home page <a href="http://www.courts.state.ny.us/courts/ad1/">here</a>, and the Second Department order can be found on its home page <a href="http://www.courts.state.ny.us/courts/ad2/">here</a>. </span><br />
<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> The Chief Judge of the Second Circuit has also issued an order relating to filing deadlines affected by the storm. The order can be found <a href="http://www.ca2.uscourts.gov/Docs/News/Hurricane%20Filing%20Extension%20Ordr%20103112.pdf">here</a>.</span><br />
<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> As with all such matters, it is important to go to a court's website for the latest information.</span><br />
<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> Finally, Governor Cuomo has issued an executive order temporarily suspending and modifying statutory provisions establishing time limitations for such matters as the commencement of civil and criminal actions, and the time to take an appeal. The Governor's order can be found <a href="http://www.governor.ny.gov/executiveorder/52">here</a>. </span>norman olchhttp://www.blogger.com/profile/08341333463074109432noreply@blogger.com0tag:blogger.com,1999:blog-6848839859785446722.post-35109640345513007392012-10-02T16:20:00.000-04:002012-10-02T16:29:35.281-04:00Second Circuit CLE<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> For attorneys accustomed to practicing in the New York State courts, a case in the federal courts can be a daunting and uncomfortable prospect. The federal courts have a rhythm of their own, determined by the Federal Rules of Civil Procedure, the Federal Rules of Criminal Procedure, and the Federal Rules of Evidence.</span><br />
<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> The same is true at the appellate level: an appeal to the United States Court of Appeals for the Second Circuit will introduce an attorney to rules and procedures unseen in the Appellate Divisions and the New York Court of Appeals: the Federal Rules of Appellate Procedure, local rules of the Second Circuit, case managers, and the Pacer System.</span><br />
<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> Making sense of it all is, however, important. As the sheer volume of federal legislation grows, more and more attorneys find themselves in the federal courts, and more and more attorneys must face the prospect of being in the Second Circuit whether as an appellant or an appellee.</span><br />
<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> But making sense of it all is possible: the Committee on Courts of Appellate Jurisdiction of the New York State Bar Association is offering two programs this month on Second Circuit practice, <i>The Comprehensive Second Circuit. </i></span><br />
<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> The first program will be held Wednesday afternoon, October 10, in Syracuse, and the second program will be held Friday afternoon, October 26, in Manhattan. Both programs will feature experienced Second Circuit practitioners, and a Q & A session with judges sitting on the Second Circuit.</span><br />
<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> Information on the Syracuse program is available <a href="http://www.nysba.org/2dcircuitoct10syracuse">here</a>. Information on the Manhattan program is available <a href="http://www.nysba.org/2dcircuitoct26nyc">here</a>. (Disclosure: I will speak at the Manhattan program.)</span><br />
<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> Programs which focus on Second Circuit practice are rare. Take advantage of the opportunity. </span><span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> </span>norman olchhttp://www.blogger.com/profile/08341333463074109432noreply@blogger.com0tag:blogger.com,1999:blog-6848839859785446722.post-81735907266751786952012-09-28T17:20:00.000-04:002012-09-28T17:24:33.916-04:00The Fall: A New Appellate Season<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> With the arrival of Labor Day came the unofficial end of summer, and a few weeks later its official conclusion. The arrival of fall brought on a new appellate court season.</span><br />
<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> After a summer break the Court of Appeals in Albany is again hearing oral arguments, as are the Appellate Divisions for the First and Second Departments in New York City. And on Monday, October 1--the traditional first Monday in October--the United States Supreme Court begins hearing oral arguments in its new Term. </span><br />
<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> The Court will begin its first week hearing arguments in six cases covering a wide range of issues such as maritime jurisdiction, an interpretation of the Clean Water Act, and the circumstances under which compensation must be paid under the Fifth Amendment's Takings Clause.</span><br />
<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> The case attracting the most attention this first week is <i>Kiobel v. Royal Dutch Petroleum, </i>in which the Court addresses whether corporations are immune from tort liability under the Alien Tort Statute (28 U.S.C. § 1350) for violations of the law of nations, such as torture, extrajudicial executions, or genocide. </span><br />
<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"><i> </i>One development which has received considerable attention is the declining number of cases decided by the Supreme Court. By one count, last Term, which ran from October 2011 to June 2012, the Court issued only 64 full, signed opinions, purportedly the small number in at least the past 50 years. Because the Court continues to address certiorari petitions as the Term progresses, it is too soon to know whether the number of cases will change this Term.</span>norman olchhttp://www.blogger.com/profile/08341333463074109432noreply@blogger.com0tag:blogger.com,1999:blog-6848839859785446722.post-25177583732189330032012-07-05T11:16:00.001-04:002012-07-05T11:27:38.733-04:00The Declaration of Independence, Trial by Jury, and Immigration <span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;">Every Fourth of July I re-read the Declaration of Independence to remind myself why brave people agreed to put at risk "our Lives, our Fortunes and our Sacred Honor."</span><br />
<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> Beyond its iconic language, the Declaration is a list of the "repeated injuries and usurpations" which justify severing ties with England. I always pause at one of the causes "which impel ...the separation": the King has assented to laws "For depriving us in many cases, of the benefits of Trial by Jury."</span><br />
<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> That the "benefits of Trial by Jury" was central to the thinking of the Founding Fathers is apparent not only from the Declaration, but from the Constitution of 1787 as amended by the Bill of Rights in 1791. The right to trial by jury appears in three separate places in the Constitution: Article III, Section 2 (jury trial for crimes), the Sixth Amendment (the right to an impartial jury in criminal prosecutions), and the Seventh Amendment (the right to trial by jury in civil cases). </span><br />
<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> For the revolutionaries of 1776 and the later Constitution writers, trial by jury was integral to a free society. The point of trial by jury is that important legal decisions, such as guilt or innocence, should not be made by government officials--judges--but by the community which the jury represents. In our hurried lives we may grumble when we receive a notice to report for jury duty, but it is worth pausing at least once a year to appreciate the high importance Jefferson and his contemporaries attached to trial by jury.</span><br />
<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> To their credit, in recent years appellate courts have endeavored not to stray from the jury trial message in the Declaration and the Constitution. In cases such as <i>U.S. v. Gaudin, </i>515 U.S. 506 (1995) and <i>Apprendi v. New Jersey, </i>530 U.S. 466 (2000),<i> </i> the Supreme Court has emphasized that juries and not judges must make the critical factual determinations at trial, and the New York Court of Appeals has held that even in civil cases a jury's announced verdict is not final until we receive the assurance of its accuracy provided by polling the jury. <i>Duffy v. Vogel, </i>12 N.Y.3d 169 (2009). </span><br />
<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> It is generally not noted that the Declaration of Independence also has something to say about a current political issue, immigration. The Declaration notes that "We have reminded [our British brethren] of our emigration and settlement here," and complains that the King "has endeavored to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands."</span><br />
<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> Jefferson and others understood the immigrant roots of the thirteen colonies, understood the importance of continuing immigration, and understood the societal importance of "foreigners" becoming citizens. Here, too, the Declaration has something to tell us 236 years later. </span><span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> </span>norman olchhttp://www.blogger.com/profile/08341333463074109432noreply@blogger.com1tag:blogger.com,1999:blog-6848839859785446722.post-14895155542707690112012-06-29T14:11:00.001-04:002012-06-29T14:16:53.400-04:00The Holocaust, Law, Morality, and Stolen Property<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> In recent years there has been t</span><span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;">here considerable litigation over property seized by the Nazis before and during World War II. The members of a Jewish family, or descendants of a Jewish family, which owned valuable paintings or other property, will claim that the paintings or property were either stolen by the Nazis, or the original owners were forced by draconian Nazi laws to sell the paintings or property to non-Jews for a pittance.</span><br />
<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> The cases provide an easy confluence of law and morality: the law says a thief cannot pass good title, and property taken by the Nazis should be returned to its true owner or his descendants.</span><br />
<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> The Appellate Division, Second Department, has just granted leave to appeal to the New York Court of Appeals in a case which presents an unusual legal twist on property stolen during World War II, </span><span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"><i>Matter of Flamenbaum.</i></span><span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> </span><br />
<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"><i> </i>When Riven Flamenbaum died in 2003, among his possessions was a small inscribed gold tablet which research disclosed dates to the years 1243-1207 BCE. The tablet was discovered by a team of German archaeologists prior to World War I in what is now northern Iraq. The tablet was loaded on a freighter bound for Germany, but with the outbreak of World War I the ship was forced to stop in Lisbon where the tablet was stored until 1926. (This sounds like an Indiana Jones script.) The tablet eventually was shipped to Germany where it was put on display in a German museum from 1934 until the outbreak of World War II in 1939, when it was put in storage. </span><br />
<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> At the end of the war the tablet was found missing. While not mentioned in the Appellate Division decision, news accounts state that after Flamenbaum was released from a concentration camp he obtained the tablet from Russian soldiers who purportedly stole it from the museum. When the tablet came to light after Flamenbaum's death, the museum made a claim for the tablet in Surrogate's Court, Nassau County.</span><br />
<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> The Surrogate ruled that while the museum established a superior legal claim to the tablet, its claim is barred by laches. The Appellate Division reversed, ruled for the museum, and has now sent the case to the Court of Appeals for a final determination.</span><br />
<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> The appeal has all the ingredients of a World War II case: concentration camp victim, Russian soldiers, stolen property, German museum. But there is the fascinating twist: the concentration camp survivor is not the victim of the theft; he is the recipient of property stolen from a German museum. How do law and morality resolve this?</span><br />
<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> The Appellate Division decision can be found <a href="http://www.courts.state.ny.us/courts/ad2/calendar/webcal/decisions/2012/D34585.pdf">here</a>. </span>norman olchhttp://www.blogger.com/profile/08341333463074109432noreply@blogger.com0tag:blogger.com,1999:blog-6848839859785446722.post-42626489319281351472012-06-28T13:36:00.000-04:002012-06-28T13:37:23.121-04:00Predicting Supreme Court Decisions<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> Predicting decisions of the United States Supreme Court is a chancy affair, especially with an ideologically divided Court on an ideological issue.</span><br />
<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> While I do not ordinarily like to boast, I did predict the outcome of today's ruling on the Affordable Care Act, <i>National Federation of Independent Business v. Sebelius.</i></span><br />
<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> For months I have been telling people two things. First, the Court will uphold the statute--and particularly the individual mandate--under the Congress' taxing power.</span><br />
<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> Second, I have been saying that Chief Justice John Roberts will vote with the majority. In fact, I said this to my wife Jacqueline as I left the house this morning. </span><br />
<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> From Chief Justice Roberts' point of view this is a legacy case. Just as the Warren Court is remembered for <i>Brown v. Board of Education </i>and <i>Miranda v. Arizona, </i>the Roberts Court will be seen in the future as the Court which ruled on health care in the United States. By many accounts, Roger Taney was a great Chief Justice, but he is best remembered for his <i>Dred Scott </i>decision a few years before the Civil War. </span><br />
<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> I have always thought that Chief Justice Roberts did not want his Court to be seen as being on the wrong of history with respect to medical care for Americans. He achieved this result skillfully, ruling that the individual mandate, by forcing people <i>to do something</i>--buy insurance--was beyond the commerce clause powers of the federal government, but that the imposition of a tax on people who do not have health insurance is a reasonable exercise of the taxing power. By also ruling that the federal government cannot coerce the states into providing greater Medicaid coverage, he made a point regarding federalism which is important to conservatives. The decision can be found <a href="http://www.supremecourt.gov/opinions/11pdf/11-393c3a2.pdf">here</a>. </span>norman olchhttp://www.blogger.com/profile/08341333463074109432noreply@blogger.com0tag:blogger.com,1999:blog-6848839859785446722.post-85218515609927610102012-05-17T14:00:00.000-04:002012-05-17T14:05:22.018-04:00Should Appellate Judges Discuss Cases Prior to Oral Argument?<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> On a number of occasions I have heard Justices of the United States Supreme Court say that prior to oral argument the members of the Court do not discuss a case among themselves, and that the first time they become aware of another Justice's views about an appeal is during oral argument.</span><br />
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<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> I have also heard Justices of the Appellate Division, Second Department, say the same thing (although in the past apparently there were some Justices on that Court who made it a point to discuss cases on the calendar before oral argument).</span></div>
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<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> In my view, this is how it should be. After reading the briefs and records appellate judges undoubtedly form an opinion, </span><span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;">before they attend oral argument,</span><span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> on how a case should be decided. But that is very different from discussing the case with other members of the panel which will hear a case: such preargument discussions may lead to conclusions among the judges on how to rule even before the lawyers have been heard, and may make it difficult for a judge to tell his colleagues he has changed his mind based on what he heard at oral argument. In short, it makes a judge less open to persuasion by the lawyer at oral argument.</span></div>
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<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> All of this came to mind when I read Dan Wise's blog report that there is a "schism" among the Justices of the Appellate Division, First Department, over whether the Justices scheduled to sit together on a panel should, prior to oral argument, discuss the cases they will hear. Wise was a reporter for 28 years with the <i>New York Law Journal </i>and he uses the sources he has cultivated to put together an insider's view of the judiciary. You can see his article <a href="http://wiselawny.wordpress.com/">here</a>.</span></div>
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<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> </span></div>norman olchhttp://www.blogger.com/profile/08341333463074109432noreply@blogger.com0tag:blogger.com,1999:blog-6848839859785446722.post-23119177256249269862012-04-10T13:55:00.016-04:002012-04-10T14:03:10.625-04:00American "Supermax" Prisons and the European Court of Human Rights<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> It is not often that we are aware of an overseas appellate ruling, but today's decision of the European Court of Human Rights in <i>Case of Babar Ahmad and Others v. The United Kingdom </i>is worth some attention.</span><br />
<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> In the ruling, the court, which sits in Strasbourg, France, holds there will be no violation of human rights if five individuals are extradited by England to the United States to stand trial on charges of being involved in terrorism. The charges are made in a federal indictment in Connecticut, and two indictments in the United States District Court for the Southern District of New York. One of the New York indictments alleges various degrees of involvement in the 1998 bombings of the United States embassies in Nairobi and Dar es Salamm in East Africa.</span><br />
<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> The first matter of note is the structure of the court's opinion: the decision is set forth in a series of 258 numbered paragraphs and will, therefore, look to an American reader as a litigant's pleading, and not the decision of an appellate court. </span><br />
<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> The second matter of considerable interest is the court's extensive discussion of the federal "supermax" prison in Colorado where the five defendants can expect to be incarcerated if they are convicted after trial in federal court. </span><br />
<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> The defendants maintained that the nature of the incarceration in a supermax prison--in particular, the isolation from contact with other humans--would be a violation of their human rights. The court rejects the claims, and in doing so sets forth in great detail how a supermax prison is run. The court cites extensively to American case law interpreting the Eighth Amendment's prohibition against cruel and unusual treatment, and to the Fifth Amendment's Due Process Clause. The court also shows its familiarity with federal court decisions which have addressed conditions in a supermax prison.</span><br />
<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> American supermax prisons have been the source of some controversy, and there is much misinformation about them. This opinion offers an excellent description of them, from the size of the cells, to recreation time, to contact with other inmates. There have been some differences among the Justices of the United States Supreme Court over to what extent, if any, American courts should rely on the opinions of the courts of others nations in constitutional adjudication. Regardless of these differences, I expect that future American litigation regarding supermax prisons will cite this decision of the European Court of Human Rights. The decision can be found <a href="http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=905791&portal=hbkm&source=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649">here</a>. </span><span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> </span>norman olchhttp://www.blogger.com/profile/08341333463074109432noreply@blogger.com0tag:blogger.com,1999:blog-6848839859785446722.post-23628911593430362662012-02-14T17:50:00.007-05:002012-02-14T17:57:20.296-05:00Appealing a Motion to Reargue <span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;">A recurring error arises in New York when an attorney loses a motion and he wants to appeal the order denying the motion while also moving to reargue in the lower court the motion he lost. </span><br />
<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> There are two simple New York rules to keep in mind: 1) making a motion to reargue does not extend the time to file a notice of appeal from the order denying a motion; and 2) </span><span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;">there is no appeal from an order which denies a motion to reargue.</span><span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> </span><br />
<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> I am reminded of this because only last week the Appellate Division, First Department, had occasion to repeat rule 2 in <i>Williams v. Tatham, </i>which can be found <a href="http://www.nycourts.gov/reporter/3dseries/2012/2012_00900.htm">here</a>.</span><br />
<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> The rules are traps for the unwary: by the time a motion to reargue is decided it will ordinarily be too late to file a notice of appeal from the original order denying the motion.</span><br />
<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> What should be done? After a motion is denied file a notice of appeal in accordance with the time limits laid out in CPLR § 5513. <i>Then </i>file the motion for reargument. If the motion for reargument is denied there is no appeal from the denial, but the attorney can still perfect an appeal from the original order because he filed a timely notice of appeal. </span><br />
<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> Final note: if the court <i>grants </i>the motion for reargument but adheres to its original ruling, that order is appealable. <i>See, </i>CPLR § 5701(a)(2)(viii). </span><span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> </span><span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> </span>norman olchhttp://www.blogger.com/profile/08341333463074109432noreply@blogger.com0tag:blogger.com,1999:blog-6848839859785446722.post-67919971592467239082012-02-10T10:00:00.002-05:002012-02-10T10:23:35.828-05:00Shades of Daniel Webster<div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgVKNhxZQ-7rOH-VwLivXqOMhdv5H_DAdLRnH7KtrshLBXy4iE7-G3KsM7jbN8H-SqvnZsNge0iLE0yFOtC0loybIeS7jYwRGQtThv9xU8_1JrIOMT9dc001gAC72hKbVgZB5VZrlXdjwM/s1600/Daniel+Webster.jpg" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgVKNhxZQ-7rOH-VwLivXqOMhdv5H_DAdLRnH7KtrshLBXy4iE7-G3KsM7jbN8H-SqvnZsNge0iLE0yFOtC0loybIeS7jYwRGQtThv9xU8_1JrIOMT9dc001gAC72hKbVgZB5VZrlXdjwM/s1600/Daniel+Webster.jpg" /></a></div><span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> When I read histories of the United States Supreme Court one matter that jumps off the page is the length of oral arguments before the John Marshall Court in the early part of the nineteenth century.</span><br />
<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> I have read of arguments by Daniel Webster and others which went on for days. I even read an account which stated that Webster and others argued one case for <i>ten days!</i></span><br />
<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"><i> </i>I was reminded of this when the Supreme Court announced it would hear three days of oral argument on the challenges to the Patient Protection and Affordable Care Act which requires that beginning in 2014 virtually every person must obtain a minimum amount of health insurance or pay a tax penalty.</span><br />
<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> Oral argument will be heard on "Obamacare" on March 26, 27 and 28, and a decision is expected by the end of June--just as the presidential race becomes more intense. </span><br />
<span style="font-family: 'Trebuchet MS';"> The hours of oral argument scheduled by the Court on the constitutionality of the health care law serve, in my view, to illustrate the importance of appellate oral argument. As appellate court dockets have grown, less and less time has been allotted for oral argument, and many attorneys consider oral argument a waste of time. I strongly disagree.</span><br />
<span style="font-family: 'Trebuchet MS';"> However brief the time a court allots for oral argument, attorneys--particularly those representing an appellant--should not forego an appearance. It is the only opportunity to address concerns appellate judges may have. In my experience judges have not been hesitent to use the opportunity to clarify or probe matters with the attorneys, and different judges have said that oral argument changes their mind five to fifteen per cent of the time. I only complain about oral argument when a court decides a case on a point the judges did not raise during the argument and which, therefore, an attorney had no opportunity to address. </span>norman olchhttp://www.blogger.com/profile/08341333463074109432noreply@blogger.com0tag:blogger.com,1999:blog-6848839859785446722.post-13345160666927533722012-02-03T14:55:00.000-05:002012-02-03T14:58:57.088-05:00The Influence of the New York View of GPS Surveillance<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> Back on May 12, 2009, I noted the decision of the New York Court of Appeals in <i>People v. Weaver, </i>12 N.Y.3d 433 (2009), in which the Court in an opinion by Chief Judge Lippman for the majority, ruled that the government cannot install a global positioning system device (GPS) on an person's automobile without a warrant.</span><br />
<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> The opinion <span class="Apple-style-span" style="line-height: 20px;">harked back to Justice Brandeis' invocation of "the right to be let alone" in his prescient dissent in</span><span class="Apple-style-span" style="line-height: 20px;"> </span><span class="Apple-style-span" style="line-height: 20px;"><span class="Apple-style-span" style="font-style: italic;">Olmstead v. United States, </span></span><span class="Apple-style-span" style="line-height: 20px;">277 U.S. 438 (1928), and noted the intrusive nature of GPS surveillance which </span></span><span class="Apple-style-span" style="font-family: 'trebuchet ms'; line-height: 20px;">allows the government to obtain all sorts of information about a person's private life such as "trips to the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment, the strip club, the criminal defense lawyer, the mosque, the synagogue or church, the gay bar and on and on."</span><br />
<span class="Apple-style-span" style="font-family: 'trebuchet ms'; line-height: 20px;"> This past November I noted that the United States Supreme Court was about to hear oral argument in <i>U.S. v. Jones </i>which raised the question of warrantless GPS surveillance, and I wondered whether the Court would follow Chief Judge Lippman's lead.</span><br />
<span class="Apple-style-span" style="font-family: 'trebuchet ms'; line-height: 20px;"> Happlily on January 23rd a unanimous Superme Court did conclude that the warrantless installation of a GPS device in an automobile violates the Fourth Amendment. I will not engage in an extended discussion here of Justice Scalia's opinion for the Court, or Justice Alito's concurring opinion for four Justices. I do note, however, that in her concurring opinion Justice Sotomayor cited the above-quoted language of Chief Judge Lippman's opinion in <i>Weaver</i> to emphasize the intrusive nature of GPS surveillance and what it can disclose about a person's private life. </span><br />
<span class="Apple-style-span" style="font-family: 'trebuchet ms'; line-height: 20px;"> At a recent bar association dinner I congratulated Chief Judge Lippman on his impact on <i>Jones. </i>I write here with the hope that the impact of <i>Weaver </i>is more widely appreciated. </span><span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> </span>norman olchhttp://www.blogger.com/profile/08341333463074109432noreply@blogger.com0tag:blogger.com,1999:blog-6848839859785446722.post-59513141961548124122011-11-22T18:50:00.001-05:002011-11-22T18:54:29.179-05:00Appealing a Sua Sponte Order<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> One of the practical problems which trial counsel confront is a <i>sua sponte </i>order which has an adverse effect on a party. </span><br />
<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> The situation can arise, for example, at a pretrial calendar conference when a judge sanctions a party for failure to comply with discovery deadlines established by court order or by stipulation of the parties. The sanction may consist of the imposition of attorneys' costs on the offending side, or even, in an extreme situation, the dismissal of a claim.</span><br />
<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> It is well-established </span><span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;">under New York law</span><span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> that there is no right to appeal a <i>sua sponte </i>order. The rule follows from CPLR § 5701(a)(2) which indicates that a party has a right to appeal from an order "where the motion it decided was made upon notice." Because a <i>sua sponte </i>order is not the result of a motion made on notice, the courts conclude that there is no right to appeal the order. </span><br />
<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> The solution for the aggrieved party? Make a motion on notice to vacate the <i>sua sponte </i>order, and if the motion is denied, appeal the order denying the motion to vacate. <i>See, Sholes v. Meagher, </i>100 N.Y.2d 333 (2003); CPLR § 5701(a)(3).</span><br />
<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> Happy Thanksgiving. <i> </i> </span>norman olchhttp://www.blogger.com/profile/08341333463074109432noreply@blogger.com2tag:blogger.com,1999:blog-6848839859785446722.post-17722705326712403022011-11-18T12:05:00.022-05:002011-11-18T12:14:02.962-05:00An Outstanding CLE Program<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> Now that Continuing Legal Education is ensconced as a cottage industry, lawyers are deluged with brochures and e-mails assuring us that if we do not immediately enroll in a particular CLE course we </span><span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;">surely</span><span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> will be consigned to the dustbin of legal history. </span><br />
<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> Amidst the deluge it is always refreshing to find a CLE program which is not only informative and useful, but actually enjoyable. I attended one last week and </span><span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;">I strongly recommend it</span><span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> when it comes around next year.</span><br />
<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> For four days I attended an appellate practice program in Washington, D.C., sponsored by the American Bar Association's Council of Appellate Lawyers (I sit on its executive committee), the Appellate Judges Education Institute, and SMU Dedman School of Law. Hundreds of lawyers and appellate judges from across the country attended. Judge Eugene F. Pigott of the New York Court of Appeals was a member of a panel on how appellate judges approach decision making. </span><br />
<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> The program began on Thursday afternoon with two lawyers interviewing Justice Sonia Sotomayor for one hour, and it concluded on Sunday morning with a talk by </span><span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;">Harvard Law School</span><span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> Professor Jack Goldsmith on the impact of war (including 9/11) on constitutional law. In between there were talks on developments and trends in civil and criminal law, a luncheon talk by Scott Turow on law and literature, panels on various aspects of appellate practice, and predictions by the attorneys involved in the </span><span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;">challenges to the health care law</span><span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> regarding whether and when the Supreme Court would agree to hear the case (the predictions were accurate).</span><br />
<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> A fascinating topic was the impact of technology on appellate practice. I learned, for example, that iPads have been distributed to all the judges of the United States Court of Appeals for the Ninth Circuit and the judges use them rather than carry around briefs and records on appeal. Does the fact that judges are reading from a screen affect how attorneys should write and structure their briefs? Should footnotes be avoided?</span><br />
<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> Next year this appellate "summit" will be held in New Orleans. It will be one of the very best CLE programs you can attend.</span><span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> </span>norman olchhttp://www.blogger.com/profile/08341333463074109432noreply@blogger.com1tag:blogger.com,1999:blog-6848839859785446722.post-66765747066942902962011-11-04T12:50:00.000-04:002011-11-04T12:50:10.350-04:00GPS Surveillance: Will the Supreme Court Go New York's Way?<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> Back on May 12, 2009, I reported here that the New York Court of Appeals had that day ruled that the police cannot attach a global positioning system (GPS) tracking device to a person's automobile without a search warrant. <i>People v. Weaver, </i>12 N.Y.3d 433 (2009). I noted that the opinion by Chief Judge Jonathan Lippman was a resounding invocation of "the right to be let alone" enunciated by </span><span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;">Justice Louis Brandeis</span><span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> in his prescient dissent in <i>Olmstead v. United States, </i>277 U.S. 438 (1928).</span><br />
<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> I also noted that because <i>Weaver </i>was based on provisions of the New York State Constitution the decision was beyond review by the United States Supreme Court.</span><br />
<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> Next Tuesday, however, the Supreme Court will have the opportunity to address the issue when it hears oral argument in <i>United States v. Jones, </i>a Government appeal from a ruling by the United States Court of Appeals for the D.C. Circuit that a warrant was required to install the GPS tracking device which monitored Jones' movements in his car for approximately four weeks. Decisions in at least four other federal circuit courts have upheld the warrantless installation of a GPS tracking device. </span>norman olchhttp://www.blogger.com/profile/08341333463074109432noreply@blogger.com0tag:blogger.com,1999:blog-6848839859785446722.post-82839167823145165422011-10-28T14:55:00.001-04:002011-10-28T14:55:18.555-04:00Next Week in the Supreme Court: Criminal Justice<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> The United States Supreme Court will hold three days of oral argument next week and hear six cases, all touching on issues central to the criminal justice system.</span><br />
<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> Two cases will deal with the constitutional right to the effective assistance of counsel during plea bargaining (<i>Lafler v. Cooper </i>and <i>Missouri v. Frye</i>); one will deal with a matter of growing concern--the due process protections against unreliable eyewitness identification testimony (<i>Perry v. New Hampshire</i>); another will address the deadline imposed on state inmates for filing federal habeas corpus petitions (<i>Gonzalez v. Thaler</i>); a fifth case will address governmental immunity when a governmental official testifies falsely before a grand jury which then issues an indictment (<i>Rehberg v. Paulk</i>); and the sixth will consider suits against individuals who work for companies which have contracted with the government to provide prison services <i>(Minneci v. Pollard</i>). </span>norman olchhttp://www.blogger.com/profile/08341333463074109432noreply@blogger.com1tag:blogger.com,1999:blog-6848839859785446722.post-27899071139927810422011-10-28T14:25:00.003-04:002011-10-28T14:25:27.207-04:00Summer Travel and the Law: Looking Back<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> Now that the chill of fall is here, and the appellate courts are back in session, it is time to take a pause from drafting briefs and preparing for oral argument, to look back to the days of summer. </span><br />
<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> Summer is, of course, a good time to travel, and when I do I try to catch the local sites of legal interest. Jacqueline and I have always enjoyed Virginia, so we decided to see parts of the state we had not explored: the Shenandoah Valley, the Blue Ridge Mountains, and other places in the far west of the state. One of the things we quickly learned is that the Civil War is ever present wherever we went.</span><br />
<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> The first stop on the drive from New York was the town of Frederick in western Maryland, the scene of much Civil War conflict. Sitting on a quiet street is the Roger Brooke Taney House, home of the fifth Chief Justice of the United States Supreme Court and the author of the <i>Dred Scott </i></span><span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;">decision. Traveling south from Frederick one passes through Harpers Ferry, West Virginia, the scene of John Brown's famous 1859 raid on the federal armory designed to incite a slave insurrection.</span><br />
<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> Our first stop in Virginia was Winchester, a town which reportedly changed hands 72 times during the Civil War, including 13 times in one day! In the center of town there is a statue of a Confederate soldier, and behind the statue sits an impressive courthouse which served as a hospital during the Civil War.</span><br />
<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> The layout of the courtroom was particularly striking: the jury would sit directly below the judge's bench facing the courtroom, and the witness would sit directly in the front of the jury facing the jurors. This face-to-face arrangement is, of course, very different from the modern courtroom in which the witness sits to the side of the judge's bench and the jurors sit perpendicular to the witness. Jurors must weigh credibility, and I wondered as I viewed the Winchester courtroom whether the face-to-face arrangement is actually better suited to this purpose than the modern configuration.</span><br />
<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> On the second floor of the courthouse is a museum which displays not only the weaponry of the Civil War, but recounts the terrible suffering of the troops. We tend to forget that over 600,000 soldiers died during the war, many because battlefield medicine was simply inadequate to the task.</span><br />
<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> From Winchester we traveled south, stopping at the New Market battlefield: the stillness was haunting as we looked over a plain grass field which was the scene of an 1864 Confederate victory. From there we visited the Virginia Quilt Museum in Harrisonburg, and then on to the Woodrow Wilson Presidential Library and Museum in Staunton. I had frequently read that Wilson was a racist, but only in Staunton did I realize that he was a southerner.</span><br />
<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> Next was Hot Springs, high in the Alleghany Mountains. Not only did we stay in a wonderful inn, but we bathed in the Jefferson Springs which have been bubbling up</span><span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> </span><span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;">at 98 degrees</span><span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> for hundreds of years. It is said that Thomas Jefferson bathed here, but there seems to be some difference of opinion whether he found it beneficial. We loved it.</span><br />
<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> A detour took us into White Sulphur Springs, West Virginia--site of a secret underground bunker built in the 1950s to house members of Congress in the event of a nuclear attack--and from there we went back to Lexington, Virginia, home of Virginia Military Institute, Washington and Lee University, and the George C. Marshall Museum and Library. I had always thought that Marshall--Army chief of staff during World War II and later Secretary of State--was a West Point graduate, but he actually attended VMI. VMI, of course, was the school at the center of the Supreme's Court's ruling in <i>U.S. v. Virginia, </i>518 U.S. 515 (1996), holding its males-only admissions policy a violation of equal protection of the law.</span><br />
<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> We left the Shenandoah Valley, and traveled east through Lynchburg to Appomattox Court House, the town in which Lee surrendered to Grant in the parlor of the Wilmer McLean home. The town is now a National Historical Park and contains a number of restored buildings, including two law offices. Outside the town is a small cemetery with the remains of 13 unknown Confederate soldiers and one unknown Union soldier. Very moving. </span><br />
<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> We traveled further north to Montpelier Station, the site of James Madison's estate, Montpelier. The 2,700 acres are magnificent, and the tour of the main house particularly meaningful for any student of the Constitution. I was so inspired that I purchased and have read <i>James Madison and the Struggle for the Bill of Rights </i>by Richard Labunski (Oxford Univ. Press).</span><br />
<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> From Montpelier we headed west to the Blue Ridge Mountains and turned north for the 100 mile Skyline Drive--a stunning ride with beautiful, unobstructed mountain vistas. A calm, leisurely conclusion to a wonderful summer journey. </span><span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> </span>norman olchhttp://www.blogger.com/profile/08341333463074109432noreply@blogger.com0tag:blogger.com,1999:blog-6848839859785446722.post-55680321843908603892011-06-14T13:30:00.015-04:002011-06-14T13:34:31.753-04:00Defamation and the Internet<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> With the exponential growth of websites and blogs society has been forced to address defamatory abuses on the internet: sometimes wild and unsubstantiated statements about individuals which would be the basis for tort liability if published in a newspaper or a book.</span><br />
<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> Ordinarily, the publisher of defamatory material authored by a third person is subject to tort liability. But in 1996, in the Communications Decency Act (CDA), 47 U.S.C. § 230, Congress created an exception to this general rule for internet publication. In substance, if one is a "provider or user of an interactive computer service" he is not liable in tort for publishing material authored by third parties.</span><br />
<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> Today in <i>Shiamili v. The Real Estate Group of New York, Inc., </i>a divided New York Court of Appeals took its first look at the CDA and ruled that Section 230 immunity applies to those who run a blog dedicated to the New York City real estate industry. The allegedly defamatory comments were written by readers of the blog, not the administrator of the blog. In the view of the majority of the Court, simply publishing the comments could not create tort liability in light of Section 230. A dissenting opinion by Chief Judge Lippman maintained that the defendants had gone further than merely publishing the material: they abused their power as website publishers to "promote and amplify defamation targeted at a business competitor." The dissent is noteworthy because Chief Judge Lippman is seen as a strong advocate of First Amendment free speech.</span><br />
<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> The majority opinion in </span><span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"><i>Shiamili </i>contains an excellent survey of cases from across the country interpreting Section 230. The decision can be found <a href="http://www.nycourts.gov/ctapps/Decisions/2011/Jun11/105opn11.pdf">here</a>. </span><span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> </span>norman olchhttp://www.blogger.com/profile/08341333463074109432noreply@blogger.com0tag:blogger.com,1999:blog-6848839859785446722.post-68778290941508500942011-06-10T14:00:00.008-04:002011-06-10T14:13:49.108-04:00Lincoln, Slavery, and the Law<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> I was about a quarter of the way through <i>The Fiery Trial </i>when the announcement came that the book was awarded this year's Pulitzer Prize in history. </span><br />
<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> Written by Eric Foner, the DeWitt Clinton Professor of History at Columbia, the book recounts in fascinating detail the evolution of Abraham Lincoln's thinking about slavery and the action government could legitimately take to address the issue. Most striking for me was the role that constitutional law played in Lincoln's thinking over three decades. </span><br />
<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> Lincoln was morally repelled by slavery but he thought that the law imposed serious constraints on what could be done about the "peculiar institution." The Constitution drafted in 1787 plainly recognized slavery without actually using that word: the three-fifth compromise allowed a state to count 60% of its slaves towards the state's total population for determining its representation in the House of Representatives (and its Electoral College vote), and the fugitive slave clause permitted slave owners to legally secure the return of runaway slaves. </span><br />
<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> Because the Constitution recognized a property right in slaves, Lincoln could not adopt the abolitionist view. Instead, he, like many others, opposed the <i>expansion </i>of slavery and had to deal with such knotty legal questions as whether a slave secured his freedom if the slave owner traveled with the slave into a state which had abolished slavery. </span><br />
<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> The Civil War and the Emancipation Proclamation brought Lincoln's legal dilemma to the fore: as President he was decreeing the manumission of slaves without providing for compensation to the owners--a policy he considered a necessity of war. Until his death Lincoln was concerned that the Supreme Court would declare the Proclamation unconstitutional. According to Professor Foner he named Secretary of Treasury Salmon P. Chase the Chief Justice of the Supreme Court "to guarantee that the Court did not challenge the constitutionality of the Emancipation Proclamation." The legal question was put to rest, however, when the Thirteenth Amendment abolishing slavery (without compensation to slave owners) was finally ratified several months after Lincoln's assassination. </span><br />
<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> This is history at its best: deeply informed, scholarly but readily accessible, and very well written. Take it to the beach this summer. </span><span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> </span>norman olchhttp://www.blogger.com/profile/08341333463074109432noreply@blogger.com0tag:blogger.com,1999:blog-6848839859785446722.post-91148075699733179282011-05-26T13:35:00.004-04:002011-05-26T13:43:40.227-04:00Appellate Tips From Supreme Court Justices<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> There is a cottage industry in America--continuing legal education courses, tapes, lectures, and books--which promises to teach both the experienced and novice appellate lawyer how to write a persuasive brief and how to make a winning oral argument. Some of these materials are specific to a particular court, while others offer generic advice which is applicable regardless of the jurisdiction in which the appeal will be heard.</span><br />
<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> Some of the best material comes from appellate judges, although few can improve on Justice Robert H. Jackson's 1951 speech "Advocacy Before the United States Supreme Court," which can be found <a href="http://www.roberthjackson.org/files/thecenter/files/bibliography/1950s/advocacy-before-the-united-states-supreme-court.pdf">here</a>. </span><br />
<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> Scribes, The American Society of Legal Writers, has just published in its journal interviews with eight United States Supreme Court Justices </span><span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;">about appellate advocacy</span><span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> . The interviews are conducted by Bryan A. Garner, co-author with Justice Scalia of <i>Making Your Case: The Art of Persuading Judges. </i></span><br />
<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"><i> </i>I have just started to make my way through the interviews--which run over 180 pages--and I will share the nuggets in future blog entries. You can access all the interviews <a href="http://www.scribes.org/sites/default/files/Scribes-Journal_Volume-13_Garner-transcripts.pdf">here</a>. A <i>New York Times </i>article<i> </i>on the interviews can also be found <a href="http://www.nytimes.com/2011/05/21/us/politics/21court.html?_r=1&scp=1&sq=Supreme%20Court%20Briefs&st=cse">here</a>.</span><br />
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<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"><b>Today's Decisions: </b>the United States Supreme Court issued four decisions today. In <i>Chamber of Commerce of the United States of America v. Whiting </i>the Court ruled 5-3 that the federal Immigration and Reform Control Act did not preempt Arizona's Legal Arizona Workers Act, a decision certain to add fuel to the controversy over whether states can enforce their own laws directed at immigrants. </span><br />
<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> <i>U.S. v. Tinklenberg </i>addresses the application of the federal Speedy Trial Act; <i>Camreta v. Greene </i>addresses when a party which has prevailed in a United States Court of Appeals can still seek review in the United States Supreme Court because it is displeased with one aspect of the Court of Appeals ruling; and <i>Fowler v. United States </i>provides an interpretation of the federal witness tampering statute, 18 U.S.C. § 1512(a)(1)(C). </span>norman olchhttp://www.blogger.com/profile/08341333463074109432noreply@blogger.com0tag:blogger.com,1999:blog-6848839859785446722.post-6432570860267269132011-05-20T12:45:00.013-04:002011-05-20T12:56:44.992-04:00Strauss-Kahn and Bail: Getting It Right<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> On Tuesday I wrote that I was surprised that Dominique Strauss-Kahn was not released at his arraignment in the New York City Criminal Court "on a high bail with serious restrictions on his movements." I also said that "other judges will look at the matter."</span><br />
<div><span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> Yesterday another judge did look at the matter: Strauss-Kahn's lawyers made a motion for bail review in the Supreme Court, New York County, and the judge there got it right. He ordered Strauss-Kahn's release on high bail with serious restrictions on his movements.</span></div><div><span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"></span><span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> Bail is, after all, designed to assure the defendant's future appearance in court. The decision of the first judge to remand Strauss-Kahn without bail was a judicial determination that no conditions could be set to assure his future appearance in court. This is implausible, as the release on bail in the past of high profile defendants has shown. One of the conditions set for Strauss-Kahn's release is virtual house arrest with security paid for by him to keep him put. The press is reporting that it will be the same security firm which watched over Bernie Madoff when he was released on bail by a federal judge.</span></div><div><span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> It was also reported in court yesterday that the grand jury voted to indict Strauss-Kahn on various sexual assault charges, although it appears that the indictment has not yet been formally filed. In New York the grand jury consists of 16 to 23 members, and a vote of at least 12 is needed for an indictment. </span></div><div><span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> The fundamental criticism of grand jury proceedings is that they are secret, and there is no judge or representative of the accused present. New York has sought to address the criticism by requiring a judge, upon request of the defendant, to make an <i>in camera </i>inspection of the grand jury minutes to determine whether there was sufficient evidence before the grand jurors to indict the defendant. <i>See, </i>CPL § 210.30. The required judicial inspection of the minutes will generally result in a judicial ruling of sufficient evidence to indict. But it is not a <i>pro forma </i>proceeding: indictments have been dismissed.</span></div><div><span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> As I noted on Tuesday, in light of the Strauss-Kahn "perp walk" and the denial of bail, there has been widespread overseas criticism of the criminal justice system in New York. The order granting bail should blunt some of this criticism. </span><span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> </span></div>norman olchhttp://www.blogger.com/profile/08341333463074109432noreply@blogger.com0tag:blogger.com,1999:blog-6848839859785446722.post-27034747344279549882011-05-17T11:55:00.012-04:002011-05-17T12:03:58.525-04:00Strauss-Kahn, the "Perp Walk," and Bail<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> The arrest of Dominique Strauss-Kahn, managing director of the International Monetary Fund, on charges that he sexually assaulted a chambermaid in his </span><span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;">hotel </span><span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;">room on West 44th Street in Manhattan, will throw an international spotlight on the criminal justice system in New York.</span><br />
<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> Strauss-Kahn is a player on the world stage. As head of the I.M.F. he has been at the forefront of the financial bailouts for Greece, Portugal, and Ireland. He was widely expected to step down from his I.M.F. post this summer to seek the Socialist party nomination for the president of France in elections to be held in 2012. He is so well known that newspaper headlines in the foreign press simply refer to him as DSK. The case is a magnet for press attention: a world figure, salacious details, and claims that political intrigue is behind events leading to the arrest. </span><br />
<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> In the circumstances, the American legal system, and the New York City system in particular, will be put under an intense international microscope. Some recent high profile cases in New York which have garnered international attention have involved financial scandals whose courtroom presentations were affected by a maze of sometimes abstruse market and banking data. The Strauss-Kahn case, however, has a simple story line--what allegedly occurred in a hotel room--which everyone can follow and about which everyone will have an opinion.</span><br />
<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> I was interviewed for background on the American legal system by <i>France 24</i>, an internet and television enterprise based on the CNN model. Two matters immediately were raised: the police escorting a handcuffed Strauss-Kahn before the waiting press photographers--the "Perp Walk"-- and the bail system. From the European perspective the Walk seemed intentionally designed to humiliate the accused and to plant "Guilty" in the minds of members of the public who may end up on the jury months later. The view was expressed that Strauss-Kahn had been singled out for this treatment but I assured the interviewer, as any reader of the tabloid press knows, that this sort of display of the accused in high profile cases is common.</span><br />
<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> There has been litigation over perp walks. In <i>Lauro v. Childs, </i>219 F.3d 202 (2nd Cir. 2000), the United States Court of Appeals for the Second Circuit ruled that a "staged perp walk"--one in which the accused is displayed solely for the benefit of the press and which serves no legitimate law enforcement purpose--violates an individual's Fourth Amendment right to be free of unlawful seizures. But in <i>Caldarola v. County of Westchester, </i>343 F.Fd 570 (2nd Cir. 2003), the court held that the perp walk of a former corrections officer--a videotape of the walk was distributed to the press--served the legitimate governmental purposes of informing the public of efforts to root out wrongdoing by public employees, enhancing the transparency of the criminal justice system, and deterring others from wrongdoing.</span><br />
<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> There is also foreign disbelief that at his arraignment Strauss-Kahn was denied release on bail. I, too, was surprised that he was not released on a high bail with serious restrictions on his movements--surrender of his passport, electronic monitoring, and so forth. But bail conditions do change as cases progress through the system: other judges will look at the matter, and appellate review of bail is available.</span><br />
<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> So far, therefore, </span><span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;">in two ways </span><span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;">the New York criminal justice system has come up short in foreign eyes : the perp walk and the flat denial of bail. This sort of close scrutiny by those not familiar with the system nor beholden to it will continue, as it should in a free society. </span><span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> </span>norman olchhttp://www.blogger.com/profile/08341333463074109432noreply@blogger.com0tag:blogger.com,1999:blog-6848839859785446722.post-10579181670761926022011-05-10T13:55:00.002-04:002011-05-10T13:59:52.143-04:00The Race to the Supreme Court<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> Ever since the passage of the Affordable Care Act in 2010 there has been a common understanding that the United States Supreme Court will have to determine the constitutionality of the law.</span><br />
<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> Litigants have not disappointed us. According to the Department of Justice, 31 lawsuits have been filed across the country challenging a law which President Obama made the centerpiece of his first years in the White House. These cases are starting to reach the United States Courts of Appeals, and from there it is only a certiorari petition away from the Supreme Court which has not been in a hurry to hear them: the Court denied a request from the Attorney General of Virginia that the Court invoke a rarely used procedure to allow Virginia to skip over the United States Court of Appeals and go directly from a United States District Court to the Supreme Court.</span><br />
<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> So this morning Virginia and another party challenging the law found themselves instead in the United States Court of Appeals for the Fourth Circuit in Richmond, Virginia. The court was long seen as the most conservative federal circuit court, but appointments by President Obama have made it more evenly divided ideologically. </span><br />
<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> The central issue in most of the challenges to the statute is the claim that Congress does not have the authority under either the Commerce Clause or its taxing power to require that people obtain health care insurance. In the cases argued this morning one District Judge ruled that the insurance provision is constitutional, while another District Judge ruled that it is not. In June, the United States Courts of Appeals for the Sixth and Eleventh Circuits will also hear oral arguments in cases challenging the statute. </span><br />
<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> The two cases argued this morning are <i>Liberty University, Inc. v. Geithner </i>and <i>Commonwealth of Virginia v. Sebelius. </i>A <i>New York Times </i>article on the cases working their way up to the Supreme Court can be found <a href="http://www.nytimes.com/2011/05/09/us/09appeals.html?scp=1&sq=appellate%20courts&st=cse">here</a>. </span>norman olchhttp://www.blogger.com/profile/08341333463074109432noreply@blogger.com0tag:blogger.com,1999:blog-6848839859785446722.post-26116917147010631932011-05-06T10:05:00.001-04:002011-05-06T10:28:16.189-04:00Law in the Movies: The Lincoln Assassination Trial<div class="separator" style="clear: both; text-align: center;"></div><div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiljEykvaTzbP5TlPCKw5Ulc_PNeYcJcnpLDA8oOy4D1uLhGtnP5efeNW00kzoJAUFN65yc5xasautiTaV4zz53EjYKQf7wHDdceoZBo8esWAiIgEU7N0jINvCvccuxBrTAlUKlpdvm0JU/s1600/Mary+Surrat+3.jpg" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" height="640" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiljEykvaTzbP5TlPCKw5Ulc_PNeYcJcnpLDA8oOy4D1uLhGtnP5efeNW00kzoJAUFN65yc5xasautiTaV4zz53EjYKQf7wHDdceoZBo8esWAiIgEU7N0jINvCvccuxBrTAlUKlpdvm0JU/s640/Mary+Surrat+3.jpg" width="412" /></a></div><span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> If you think you have tough cases consider this: A long and bloody civil war is over; the leader of the winning side is assassinated; those alleged to be involved in the assassination plot are sympathetic to the losing side; the tribunal impanelled to try the alleged conspirators consists of army officers grieving the loss of their commander-in-chief; and the defense counsel is a former member of the army on the winning side of the civil war</span><br />
<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> The trial, of course, is of those charged in the plot to assassinate President Abraham Lincoln after General Robert E. Lee surrendered to General Ulysses S. Grant at Appomattox Court House in Virginia.</span><br />
<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> The lawyer was Frederick Aiken who represented Mary Surratt, one of the alleged conspirators, and the center of Robert Redford's movie <i>The</i> <i>Conspirator.</i></span><br />
<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"><i> </i>Surratt owned the Washington boarding house where the conspirators met, and the movie argues for her tenuous connection to the conspiracy. The film apparently hews to the trial record.<i> </i></span><br />
<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"><span class="Apple-style-span" style="font-family: Times;">I</span>nevitably, however, a film script will eliminate many details. I thought the movie a bit flat dramatically, although it can be argued that the film's strength is that it lets the record speak for itself. </span><br />
<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> The film implicitly raises contemporary issues which arise in the wake of September 11, and I suspect that was the director's intent. How does a public trauma such as the assassination of a president or a violent attack on the United States affect the legal system's ability to render fair and impartial judgments? Should these matters be tried by military commissions or civilian juries? A postscript to the film reports that Mary Surratt's son was tried by a civilian jury, the jury was hung, and he was released--a very different fate from that meted out to his mother Mary.</span><br />
<span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif;"> Historians have rightly focused on the political effects of Lincoln's assassination while the legal aftermath receives little attention. For a large audience <i>The Conspirator </i>will lift the trial from the obscurity it does not deserve. It is a worthwhile and informative trip to the local movie house for lawyer and nonlawyer alike. </span>norman olchhttp://www.blogger.com/profile/08341333463074109432noreply@blogger.com0