Author: Robert Michael -
Source: articledashboard.com

Most of us already are aware that the change in the bankruptcy law will be effective this October. Those who are already in debt argue that it is unfair. Companies that have suffered profit loss through the years are relieved to hear the news.

The change in the bankruptcy law will force individuals who are in debt or facing debt to file for Chapter 13 bankruptcy. The old way of just erasing debt will no longer be, myeasypayment, an option to most.

How does Chapter 13 bankruptcy work? Well it is a plan that arranges monthly payments of the debtor. The courts calculate what amounts the individual can pay on a monthly basis. Chapter 13 is available to anyone who has some kind of steady income allowing them to come up with money to pay off their debts. It does prevent the debtor from the need to liquidate any of their available assets. The individual does not decide what they can pay and when they can pay it off. The courts will calculate the payment arrangements and the time line in which the debts are to be paid off.

Now that there is a new bankruptcy law people should plan better for the future to prevent their need to file as bankrupt.

There are circumstances that most individuals do not account for when they invest into a home or use credit cards for purchases. One significant cause to debt is suffering some kind of financial loss such as losing a job or investments such as stocks. When this kind of situation occurs people are not equipment to pay their monthly payments such as mortgages leases and credit card bills.

A wise thing to do is to be prepared for the unexpected. Save some money off to the side. Keep it in a separate account in case something that was to happen in the future that effects your income, myeasypayment, . Establishing any kind of financial plan is always a good move to avoid bankruptcy.

There are things that happen that no one ever plans on that can lend him or her in debt. However part of the cause for the change in the bankruptcy law is do to those who have abused the filing power of bankruptcy.

Although there are very many people who never abused the system they will have to suffer the consequences.

Most people may feel that the decision, myeasypayment, is unfair. Especially to those who did all they could from falling into debt. We can not turn back the hands of time and erase the decisions that were made by our government. Regardless of your situation we most pay the same price caused by those, myeasypayment, who abused bankruptcy in the past.

The best step we can take is to be prepared for all financial circumstances.

Make a back up plan of your own and never have the need to even, myeasypayment, consider bankruptcy.

Not wanting to call out the doldrums of boredom, but I may be speaking from.

Economics are matters most of us rather not contemplate.  We do quick rants, throw down the gauntlets of our disgust in a quiet -or flamed- tirade, and then go on about our lives striving for happiness in varying forms.

After digesting my earlier words, and reading an article where the Supreme Court of Canada voted 6-3 in favour of Wal-Mart being ‘just’ in closing a store in Jonquiere, Quebec after the employees voted in favour of unionizing.  Now, I will admit from a strict stance one would have to assume Wal-Mart closed down as a response to say they denied their employees of their Charter rights of unionizing.  One would be fairly naive to believe it was completely circumstantial that they closed down the same day, after spending millions building the store, that it did not have anything to do with the employee’s voting in favour of their right.

Of course, judge’s are not this naive, and can draw a logical conclusion when demanded.  Not being this naive they cited Quebec labour laws which -if at all they found a direct conclusion of Wal-Mart closing as a response- must be in contradiction with the Charter of Rights in Canada.  If I am right in my readings of this then the ‘top court’ should have still backed the employee’s rights and that ruling would have forced Quebec to revise its section of the labour code.

My personal opinion, slanted with my ideological bias.

***

There has been a radical shift in sentiment towards the merit of unions in the years.

Do they hurt business?

They, obviously, will if we take a stance that a corporation is morally neutral and, only, profit-oriented.   Simple economics dictate this.  Has globalization (trade-agreements) changed the dynamics to where companies operating with a union representing their employees causes them to be unable to compete?  I would suggest if the gap in Canada between the rich-and-poor is widening then executive salaries are, also, hurting their ability to compete.

Of course, my ideological slant, that progress in society is not wealth based on merit, but simply equitable living for all not based entirely on merit.  Somewhere in this speaks of a middle ground.  My logical side would say we are moving away from this if the gap is widening.

One must make an assumption of human nature to say that if someone is protected (in this case protected by their union membership) they will become lazy.  A natural association, of course, but I was also taught a simple moral when I was young that I should not presume guilt of an individual based on the gander.

***

This points to another fascinating question . . . what is progress?

Divisive behaviour, upon my definitions, would not be progress.  Generating wealth for only selected people is not progress.  Ignoring rights is far from progress.  Keeping a system alive only to benefit a handful of people would certainly fall very short of my definition.  Justifying denying rights based off this even further.

Are both sides guilty of divisive behaviour?  How could they not be.

Do human beings look after their own lot?  Yes, and no.  Drawn into divisive patterns – of course they do.  The spirit of charity and helping speaks volumes against this notion.  Then why must we assume only negative human nature when discussing these issues?  The language used always seems to land in the divisive nature of sides.  Us versus them.

Can we find ways to protect rights, live equitably -seemingly requiring an equilibrium- and progress as a whole?  I would actually rather rid of the need of a union than side with one.  Do I see us there yet?  No, the gap seems to indicate far from.  A union keeps a balance of power on employers.  Ultimately, an employer needs an employee as much as employee needs an employer – wishful thinking would think that alone would create an equilibrium.

Lack of equilibrium seemingly stems from us valuing innovation.  What innovative idea is widening the gap?  Sure, I want to inspire people to become doctors and a certain amount of remuneration does provide this.   A doctor does have to spend years studying, and with rising education costs, one could assume remuneration should be considered here as well.  A competing want of mine says that I would hope a doctor also has a genuine want to help outside of economic remuneration.

I do not want to diminish merit.  Merit should be working for equitable living wages for all.

Ahh, arguing myself into circles.  I will allow myself to cut this off with only this thought . . .

The path to happiness seems to be through oneself, and not based off measurement of wealth – but the circumstances allowing one to achieve this is determined outside.

http://www.swfbuyersmarket.com
As mortgage foreclosure cases begin leveling out, court officials are worried their main source of state funding may level out as well and fall short of budget projections.

Last spring, Florida legislators passed a law raising filing fees for most civil cases, with the largest increase in foreclosure cases. Courts across the state are relying on those fees to produce 70 percent of the budget, a change from years past, with the other 30 percent of the budget coming from the state’s general revenue fund.

In Lee County, monthly foreclosures for 2009 peaked in March at 2,202. In the past three months, they have lingered around 1,600 filed per month, with 1,555 — the lowest so far this year — filed in October.

According to statistics from the Office of State Court Administrator, clerks across the state collected nearly $34 million in fees in June, then up to $40.5 million in July and between $35 and $36 million in August and September. After a conference Nov. 16, state officials now believe clerks will collect an average of $34 million per month even as foreclosures decline.

The State Courts Revenue Trust Fund has a surplus, but the state’s general revenue fund is $2.3 billion behind, said G. Keith Cary, the 20th Judicial Circuit’s chief judge.
The trust fund pays for administrative costs, while the general revenue fund pays for judge’s salaries. With foreclosure filings dipping, the amount of money that goes into the trust fund is falling with it.

Lee County Clerk Charlie Green said foreclosure cases are on the decline. But he also worries as unemployment lingers higher in Lee County than in past years, foreclosures could spike up again.

“We’re definitely on the downside,” he said. “The number of people who are paying who are upside down and still paying — they may start walking away. I’m hoping that doesn’t happen.”

The bill, which Gov. Charlie Crist signed into law on May 27, increased filing fees for several types of civil lawsuits. Circuit court civil cases increased $180, probate cases $115 and family cases by $80. Mortgage foreclosure cases increased depending on the amount of the claim. For those less than $50,000, the fee is $395; between $50,000 and $250,000, the fee is $900; and more than $250,000, the fee increased to $1,900.

Mark 11:28-33
“By what authority are you doing these things?” they asked. “And who gave you authority to do this?” Jesus replied, “I will ask you one question. Answer me, and I will tell you by what authority I am doing these things. John’s baptism—was it from heaven, or from men? Tell me!” They discussed it among themselves and said, “If we say, ‘From heaven,’ he will ask, ‘Then why didn’t you believe him?’ But if we say, ‘From men’…” (They feared the people, for everyone held that John really was a prophet.) So they answered Jesus, “We don’t know.” Jesus said, “Neither will I tell you by what authority I am doing these things.”

For a man who was going to be betrayed, the kind of things Jesus did at the end seemed insane. Entering on a donkey and getting praise from the lips of common folk certainly did not sit well with those in authority there. Adding insult to injury was when Jesus entered the temple courts and threw all the sellers out and overturned the tables of the money changers. These were people who managed to work their way into the temple courts through befriending the Pharisees and they charged exorbitant rates for sacrifices and money changing because they had exclusive dominion in that place and worshippers had no choice but to buy from them. Worse than all of this was that Jesus sat and taught the people who came into the temple courts about what God wanted for their lives and this shook the very foundation of the faith at that time.

It is clear from the passage above that Jesus was not going to be ‘Shooed’ away and if these temple priests wanted him out, they would have to come up with something more than accusations. The only option they had then was to make falsified charges and take his life which was certainly what Jesus came for. He came to die for sinners and to give us hope of eternity with him through his resurrection. Are you willing to put your trust in Jesus who fought the world to clarify the truth to save us? Are you willing to stand up against the powers of this world and evil to proclaim his name above every other name? Lets not be caught sleeping when he come again. Lets rise us and share the gospel with the lost sheep and help them find their shepherd, Jesus Christ.

In His Loving Service,
Vineet

Fields of Harvest

If there’s one thing I remember from my criminal law class, it was listening to the audio recording of the “(Hold Your) Wee for a Wii” contest. While I find the latest lawsuit involving a video gaming device to be not nearly as upsetting in its tragedy, the plaintiff, and those who empathize with him, may disagree. In a recently filed lawsuit, a gamer from San Jose, California is challenging a Nintendo Wii system update that disables access to unauthorized third-party programs like the Homebrew Channel.

What drove Erik Estavillo to file a lawsuit, you ask? He is upset about losing the ability to use a program that would unlock the character Rosalina in Mario Kart Wii, as, ordinarily, a player needs to have a Super Mario Galaxy save file on the Wii in order to unlock that character. We’ll take his word for it.

As his cause of action, Estavillo alleges that Nintendo is ruining his constitutional right to the pursuit of happiness. Our forefathers are either rolling in their graves or cheering him on–Rosalina is said to be quite the “popular” avatar.

According to Game Spot, the plaintiff’s complaint states, “In federal terms, the plaintiff who relies heavily on video games for happiness, would like the federal court to decide if Nintendo is interfering with certain player’s pursuit of happiness, which is stated in the United States Declaration of Independence.” It continues, stating that the Declaration of Independence was adopted on July 4, 1776, and quotes the portion dealing with the unalienable rights to “life, liberty, and the pursuit of happiness.”

Damages? Another good question. Estavillo wants $5,000 from Nintendo for his “injuries,” and, as equitable relief, an injunction preventing Nintendo from blocking access to the Homebrew Channel, the program he used to unlock Rosalina.

Estavillo is also suing Microsoft, alleging that he cannot afford the $100 fee Microsoft would charge him to fix his Xbox after it suffered the “red ring of death” failure. This portion of the suit claims the plaintiff’s Xbox 360 is “only one of two ways in which he relies on to socialize,” as he suffers from depression, obsessive-compulsive disorder, panic disorder, agoraphobia, and Crohn’s disease. He is asking for $75,000 from Microsoft due to “the stress put on [him for] having to find a way to acquire a new Xbox 360 system and the sadness he will have in the meantime of finding one he can afford.”

This is not Estavillo’s first go-round in a courtroom; in September, a federal judge dismissed a First Amendment lawsuit he brought against Sony because he had been banned from the PlayStation Network. That decision is currently on appeal.

Maybe it’s time to rethink the idea that the Wii or Xbox makes the perfect Chrismakkah gift.

– Nicole Soussan

Image Source

By Rowan Scarborough, FOXNEWS

Navy SEALs have secretly captured one of the most wanted terrorists in Iraq — the alleged mastermind of the murder and mutilation of four Blackwater USA security guards in Fallujah in 2004. And three of the SEALs who captured him are now facing criminal charges, sources told FoxNews.com.

The three, all members of the Navy’s elite commando unit, have refused non-judicial punishment — called a captain’s mast — and have requested a trial by court-martial.

Ahmed Hashim Abed, whom the military code-named “Objective Amber,” told investigators he was punched by his captors — and he had the bloody lip to prove it.

Now, instead of being lauded for bringing to justice a high-value target, three of the SEAL commandos, all enlisted, face assault charges and have retained lawyers.

CONTINTUED…...foxnews.com/

 By Matt Cover, Staff Writer,CNS

Sen. Kent Conrad (D-N.D.) told CNSNews.com that civilian courts are well-suited to prosecute al Qaeda terrorists and that “if people don’t believe in our system, maybe they ought to go somewhere else.” 

Conrad also dismissed a question about the rights of terrorists captured on foreign battlefields and the rules of evidence in terms of a civilian court trial as not serious.

Attorney General Eric Holder announced on Nov. 13 that five suspects in the 9/11 attacks would be tried in a civilian court in New York City instead of facing a military trial.

On Capitol Hill on Nov. 19, CNSNews.com asked Conrad: “We’re going to have a civilian trial of Khalid Sheikh Mohammed. If our troops–the evidence against him is going to be found in Afghanistan, there on the battlefield–if our troops need to enter a house and they think that there’s evidence there, should they have to establish probable cause and get a search warrant from a judge first?”

Conrad said: “You’re not being serious about these questions, are you?”

MORE…...cnsnews.com

In celebration of Thanksgiving, I give you our annual Turkey Torts of a few potential and actual lawsuits from this holiday. From deep-fried Turkeys to salmonella salads, the holiday gives personal injury lawyers a great deal to be thankful for.

IN RE JEAN KASPER (as yet unfiled 2009)

This year, we have a curious product liability and negligence allegation. When Lisa Blair’s mother, Jean Kasper, died, she wanted to carry part of her mother with her. She consulted with a funeral home on the use of heart-shaped lockets for carrying the ashes. She filled identical lockets for her seven daughters and stepdaughters. She alleges that she dropped off the lockets to be sealed and tested by the funeral home.

At Thanksgiving dinner, Blair noticed that the mashed potatoes had small flecks in them, but continued to eat. After consuming most of the potatoes, she looked down and realize that her mother’s ashes had fallen into the mashed potatoes and that she had consumed them. She also discovered that the lockets on her daughters and stepdaughters had also leaked into their food.

Cresmount funeral home will not discuss the allegations. Blair could allege an assortment of torts from negligence to negligent infliction of emotional distress. If the funeral home represented that the lockets were sealed, it might be able to survive a motion to dismiss. There is also the possibility of a products claim. However, these lockets were not made for this purchase and this is not likely a case for foreseeable misuse against the manufacturer.

For the full story, click here.
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APONTE v. CASTOR
155 Ohio App. 3d 553 (2003)

Guests can bring potential liability for alleged attractive nuisances found during a Thanksgiving dinner. At least that is what Michael and Deborah Castor discovered. They invited their niece, Teresa Aponte and her daugher Erica (age 7) to share a Thanksgiving feast. According to the court, “[f]ollowing dinner, accompanied by her cousin, Erica went outside and crawled under/through an electric wire fence that enclosed appellees’ horse paddock area. Erica was subsequently kicked in the face by appellees’ horse, sustaining injury.”

The niece sued her uncle and aunt. The question was Erica’s status as trespasser or an invitee. The case also explored the meaning of an attractive nuisance.

The court held as follows:

In this case, it is undisputed that Erica was invited over for Thanksgiving dinner and that she did not obtain permission from appellees or any other adult to exit the house or visit the horse penned in the paddock. Moreover, it is uncontested that Erica was never permitted by appellees to roam freely in “any part of the subject property without both parental supervision and permission.” Upon a thorough review of the record, and finding no genuine issues of material fact, we find that Erica was only invited to appellees’ home for Thanksgiving dinner and was not invited to freely explore the property. Accordingly, we find that once Erica left the house and entered the horse paddock area, she exceeded the scope of appellees’ invitation and became a trespasser or a licensee on appellees’ property.

Normally, a landowner would only owe a trespasser or licensee the duty to refrain from wanton, willful or reckless conduct which is likely to injure the licensee or trespasser. . . .However, the Ohio Supreme Court has held that the amount of care required of a landowner to discharge a duty owed to a child of tender years, who is exposed to danger on the landowner’s property, is greater than that required to discharge a duty to an adult exposed to the same danger. Di Gildo v. Caponi (1969), 18 Ohio St. 2d 125, 47 Ohio Op. 2d 282, 247 N.E.2d 732, paragraph one of the syllabus; and Bennett v. Stanley (2001), 92 Ohio St.3d 35, 39, 2001 Ohio 128, 748 N.E.2d 41. The rationale for this rule is that HN7″‘Children of tender years, and youthful persons generally, are entitled to a degree of care proportioned to their inability to foresee and avoid the perils that they may encounter ***. The same discernment and foresight in discovering defects and dangers cannot be reasonably expected of them, that older and experienced persons habitually employ; and therefore, the greater precaution should be taken, where children are exposed to them.’” Di Gildo at 127, citing 39 Ohio Jurisprudence 2d 512, Negligence, Section 21. “Even child trespassers are accorded special protection in Ohio tort law.” Bennett, 92 Ohio St.3d at 40.

In recognizing that “children are entitled to a greater level of protection than adults,” the Ohio Supreme Court in Bennett adopted the attractive nuisance doctrine, contained in Restatement of the Law 2d, Torts (1965), Section 339 . Bennett set forth
the attractive nuisance doctrine as follows:

“A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if:

“(a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and

“(b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and

“(c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and

“(d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and

“(e) the possessor fails to exercise reasonable care to eliminate the danger or to otherwise protect the children.”

In determining a landowner’s duty to a child, Bennett held that “whether an apparatus or a condition of property is involved, the key element should be whether there is a foreseeable, ‘unreasonable risk of death or serious bodily harm to *** children.’” Id. at 42, citing Restatement, Section 339(b). However, “even when a landowner is found to have an attractive nuisance on his or her land, the landowner is left merely with the burden of acting with ordinary care” and “does not automatically become liable for any injury a child trespasser may suffer on that land.” Id.

. . . Appellant argues that appellees’ horse created an attractive nuisance and, as such, appellees owed Erica the duty of ordinary care. We, however, find no authority in Ohio law which establishes that an animal is “an artificial condition” which invokes the doctrine of attractive nuisance. Accordingly, we find that the attractive nuisance doctrine is not applicable in this case. Nevertheless, based upon the holdings and rationale in Bennett and Di Gildo, we find that “children of tender years, and youthful persons” are generally entitled to a degree of care commensurate with their inability to foresee and avoid dangers, even when trespassing.

In considering whether appellees breached their duty to Erica, we must first consider whether it was foreseeable to appellees that Erica would trespass into the horse paddock area while on their property. Appellant argues that it was foreseeable that Erica, a child guest at Thanksgiving dinner, would wander out to the horse paddock. We, however, find that the undisputed evidence is to the contrary.

First, neither on the day in question, nor during earlier visits, was Erica ever given unfettered access to appellees’ property; rather, permission and adult supervision was required. Second, at no time was any child guest allowed “to roam freely around the subject property or enter the area in or around the horse paddock area.” Third, according to Mr. Castor, on previous visits to the property, Erica “never unilaterally left the house or entered the area in or around the horse paddock area.” Fourth, the horse was enclosed with an electrified wire fence, which, according to Erica, she was warned to avoid. Based on these undisputed facts, we find that it was not foreseeable to appellees that Erica would trespass upon their property into the area of the horse paddock.

Assuming arguendo that a genuine issue of material fact exists regarding whether it was foreseeable to appellees that Erica would trespass into the horse paddock, we note that the degree of care owed by appellees only would have to be proportionate to Erica’s inability to foresee and avoid the perils that she may encounter and, in no event, would appellees’ duty to Erica extend to dangerous conditions that were obvious and realized by her. See Bennett, supra at 43.

In this case, it is clear that Erica had an appreciation that horses presented a risk to her. Erica testified that she had been told “never to go behind a horse”; she knew that she was not allowed to be around horses, appellees’ horse, or in the corral, without a parent or adult supervision; and that, although she did not remember anyone ever telling her specifically not to go into the corral, she was “pretty sure that *** [appellees] thought that [she] had the common sense not to go there” and that “they knew that if [she] were going to that [she] would ask for an adult to come with [her].”

Appellant, however, argues that appellees should have warned Erica and her parents regarding this horse’s history of aggressive behavior toward a sheep that entered its enclosure. However, based on Erica’s own testimony, we find that she knew horses presented a risk, that she was not to go near the electric fence, and that an adult was supposed to accompany her around horses. Accordingly, we find that the potential danger any horse posed to Erica was both known and obvious to her. We therefore find that appellees owed no duty to Erica or her parents to provide additional warnings regarding this horse in particular.

Based on the foregoing, we find that there are no genuine issues of material fact and that appellees are entitled to summary judgment as a matter of law. Erica was a trespasser on appellees’ property and, therefore, appellees were only required to refrain from willful, wanton and reckless conduct. However, to the extent that Erica’s age would entitle her to a greater degree of care than that normally afforded a trespasser, we find that appellees breached no duty to Erica insofar as she fully realized the obvious risk that horses presented, and proceeded at her own peril. Accordingly, we find appellant’s first and second assignments of error not well-taken.

On consideration whereof, the court finds substantial justice has been done the party complaining and the judgment of the Williams County Court of Common Pleas is affirmed. Appellant is ordered to pay the court costs of this appeal.

————————————————————

DENNIS V. DENNIS
2001 Del. Super. LEXIS 11 (2001)

The Dennis case shows why a good lawyer requires relatives to sign waiver forms before the start of any holiday. Here are the facts from the case:

FACTS

On November 16, 1998, Plaintiff [*2] Crystal Dennis (“Crystal”) and her thirteen-month-old son, Velvin Morgan, Jr. (“Velvin”)(collectively, the “Plaintiffs”) went to the home of Mr. Dennis, who is Crystal’s father and Velvin’s grandfather. Defendant Stephanie Dennis (“Stephanie”), who is Crystal’s sister, was also present at her father’s home. The sisters had gathered at Mr. Dennis’s residence in order to clean it for Thanksgiving dinner. While the daughters were cleaning, Mr. Dennis babysat Velvin. While all three adults and Velvin were in the kitchen prior to eating breakfast, Stephanie warmed water in the microwave for hot tea. She took the cup out of the microwave and placed it on the counter. Velvin, who was sitting on his grandfather’s lap, got up and walked over to the counter, reached up and poured the scolding water on himself. As a result, he sustained first and second degree burns on his neck and chest. The Plaintiffs filed suit against Mr. Dennis and Stephanie (collectively the “Defendants”), alleging that the Defendants’ negligence was the proximate cause of Velvin’s injuries.

The issue was whether the daughters could claim to be business invitees in coming their father’s house — in order to get around the state’s Guest Statute. The Delaware Guest Statute, 25 Del. C. § 1501, provides:

No person who enters onto private residential or farm premises owned or occupied by another person, either as a guest without payment or as a trespasser, shall have a cause of action against the owner or occupier of such premises for any injuries or damages sustained by such person while on the premises unless such accident was intentional on the part of the owner or occupier or was caused [*4] by the wilful or wanton disregard of the rights of others.

The daughters, however, claimed that “since Crystal would have been unable to perform the cleaning [*6] services for her father unless she could bring Velvin with her and have Mr. Dennis babysit him, he has received a benefit. Further, the Plaintiffs assert that Crystal was a business invitee 10 and that status should be imputed onto Velvin.”

Outcome: The Court was not convinced and found the lawsuit against the father to be properly dismissed.

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SAMSON v. REISING
62 Wis. 2d 698 (1974)

The underlying facts show that on Tuesday, February 6, 1968, Pearl Samson attended a luncheon, which was put on by the Wauwatosa High School Band Mothers Association (an organization organized to give support to the high school band) at the Wauwatosa Trinity Episcopal Church. Pearl Samson paid $ 1.25 and ate a luncheon consisting of turkey salad and dessert. On Wednesday evening she became nauseated. She was unable to work on Thursday and Friday.

The symptoms subsided, and she returned to work on Monday, February 12th. A few days later, however, she again was obliged to miss work because of her illness. After these symptoms recurred every few days, she visited her doctor, who was unable to help her, and in the nine-month period following the luncheon she lost 22 pounds and periodically suffered from diarrhea, vomiting, cramps, and stomach pain. Eventually she was referred to a specialist, who determined that Pearl Samson’s condition was the result of salmonella food poisoning and that, as a consequence, she suffered a deficiency of the lactase enzyme in her intestinal tract.

This enzyme is necessary to properly digest foods with a lactose base, such as milk and dairy products. She claims that her illness recurs whenever she ingests foods which contain milk products. There was testimony that she found it impossible to be sure that the food she ate contained no such products and that she became severely ill sometimes twice a month. Her physician testified that this condition is permanent.

There is evidence that the turkey salad eaten at the luncheon was contaminated with salmonella bacteria. Dorothy G. Wood, one of the defendants, testified that she had taken some of the leftover salad home for her family to eat. Her family ate some of that salad and had no ill effects. When she received reports that some of the guests at the luncheon had become ill, she notified the chief sanitarian of the Wauwatosa Health Department. He submitted the sample of the remaining salad to the Milwaukee Food Laboratory. The report from the laboratory indicated the presence of the salmonella bacteria.

There was testimony by Dorothy G. Wood that she and Marjorie E. Borror were co-chairmen in charge of the luncheon, that approximately a month before the luncheon they purchased nine frozen turkeys from Kohl’s and had them stored in Kohl’s freezer until they were needed. Before the date of the luncheon, Dorothy Wood picked up the frozen turkeys and delivered them to other members of the luncheon committee. She named eight members of the committee to whom she delivered the turkeys to be cooked in their own homes. She stated that she delivered the turkeys to Margarette H. Hoffman, Charlotte G. Soleski, Violet E. Gullicksen, Betty Randa, Grace A. Kerler, Marjorie E. Borror, Ruth E. Johnson, Jane Frances, and one other. Each of these persons are defendants in the instant lawsuit. In addition, Audrey Riesing and Phillis Gill, together with Dorothy Wood, are named as defendants.

Dorothy Wood stated that she did not cook a turkey, but that nine ladies, one of whom she could not name, cooked them sometime between the day she delivered the turkeys and the afternoon of February 5, 1968, when the ladies brought the cooked turkeys to the Trinity Episcopal Church kitchen. The turkey salad was prepared in the Trinity Episcopal Church kitchen.

After the salad was prepared, it was taken to a refrigerator located at the Methodist Church. The turkey salad was returned to the Trinity Episcopal Church at 10 a. m. on Tuesday, February 6th. The salad received no refrigeration from the time it was taken from the Methodist Church. Prior to the time of serving, the turkey salad was held in large containers, which had been obtained from the Methodist Church. Dorothy Wood testified that the church kitchen in which the salad was prepared was “clean.”

At trial, Joseph D. Gorski, the chief sanitarian for the Wauwatosa Health Department, testified that salmonella is a bacteria common to the intestinal tracts of fowl. He said that food containing salmonella bacteria can be rendered safe for eating by exposure to heat and that a meat temperature of 146 degrees Fahrenheit for thirty minutes or 161 degrees for thirty seconds would kill the organism. Properly cooking a turkey would render it free from salmonella bacteria.

However, even though a turkey were properly cooked, it could be contaminated if it came in contact with utensils or other objects which touched the raw contaminated turkey. Gary V. Doern, a bacteriologist, also testified that some individuals are unknowing carriers of the salmonella bacteria and can contaminate food products by touching them.

. . . In this case nine turkeys were cooked, each by one of nine defendants, but not all of the 11 defendants cooked the turkeys. It does appear, however, that all of them participated in the preparation of the salad.

Outcome: This case ultimately turned on the court’s interpretation of the doctrine of res ipsa loquitur used to prove such cases with a paucity of proof. The doctrine requires “(1) The event or accident in question be of the kind which does not ordinarily occur in the absence of someone’s negligence; and (2) the agency or instrumentality causing the harm must have been within the exclusive control of the defendant.”

The court found that first criteria satisfied but ruled that it failed on the second criteria of exclusive control. They could not prove which of the band mother’s Turkeys was the culprit so all of the band mothers walked.

A Conversation on the Commonwealth and LGBTI Advocacy:
sharing experiences and discussing strategies

generously supported by Arcus Foundation, UWI-St. Augustine Institute of
International Relations, Josh Drayton, and an anonymous donor

Sunday November 29th, 2009
Classroom, Institute of International Relations, University of the West Indies-St. Augustine

9:00 Setting the Stage
Stefano Fabeni, Director, LGBTI Initiative, Global Rights
Marcelo Ferreyra, Latin America and Caribbean Coordinator, IGLHRC
Zaharadeen Gambo, Program Officer, Global Rights Nigeria
Colin Robinson, Coalition Advocating for Inclusion of Sexual Orientation, Trinidad & Tobago
Timothy M Shaw, PhD, Director, Institute of International Relations, University of the West Indies-St. Augustine

10.00 Decriminalizing Same-Sex Intimacy: first India, then Trinidad & Tobago?
Colin Robinson, CAISO, Trinidad and Tobago
Siddharth Narrain, Alternative Law Forum, India
Tracy Robinson, UWI Rights Advocacy Project (U-RAP), Cave Hill, Barbados

11.30 Coffee break (provided)

11.45 Sexual Citizenship in the Commonwealth: charting a civil society agenda
Zoe Ware, Royal Commonwealth Society
Robert Carr, Commonwealth HIV & AIDS Group (CHAAG)/Caribbean Vulnerable Communities Coalition (CVC)
Heather Collister, Commonwealth Human Rights Initiative
Hassan Shire Sheikh, East and Horn of Africa Human Rights Defenders Project

1.15 Lunch (provided)

2.00 Viewing of LGBTI advocates’ interview on TV6 CHOGM broadcast

4.00 Coffee break (provided)

4.15 Human Rights in the Commonwealth
David Kalete, Civil Society Liaison Manager, Commonwealth Secretariat
Clare Doube, Commonwealth Foundation & civil society consultation processes

Both days are free, catered and open to the public and the UWI community.
To reserve a meal, please RSVP to caisott@gmail.com

Monday November 30th, 2009
Conference Room, Sir Arthur Lewis Institute for Social & Economic Studies (SALISES), UWI-St. Augustine

9.00 The Commonwealth of Nations: functions, opportunities, obstacles and allies
Stefano Fabeni, Global Rights

10.30 Coffee break (provided)

10.45 Framing an LGBTI advocacy strategy
Moderators: Marcelo Ferreyra & Zaharadeen Gambo

12.00 Conclusions

12.30 Lunch (provided) & Networking

Eighty-six countries in the world currently have legislation criminalizing same-sex conduct between consenting adults a well as other non normative sexual and gender behaviors and identities; half of them are member states of the Commonwealth. For the first time at a Commonwealth Heads of Government Meeting, at this week’s CHOGM in Trinidad & Tobago, there is significant gay, lesbian and transgender (GLT) representation among civil society participants, and a concerted effort to highlight issues of sexual citizenship and rights. Working in partnership with gender and disabilities advocates, GLT participants have already achieved visibility for a number of key GLT concerns, and won their inclusion on the broad civil society agenda for the Commonwealth.

Links:

LGBT Rights in the Commonwealth

Can’t Every Body Be a Commonwealth Citizen? Making Safe Space for Sexuality on the People’s Forum Agenda

Taking responsibility for creating spaces at CPF for discussion and action on questions of sexuality, gender and development

Port of Spain Civil Society Statement to the Commonwealth Heads of Government Meeting

Read more about the event:

Criminal provisions in some countries target same sex sexual conduct, some specifically men who have sex with men, others more generally any sexual behavior considered “unnatural”. Some countries criminalize other non normative behaviors, such as cross-dressing, or utilize criminal provisions on indecency or debauchery, among others, to target individuals on their real or perceived sexual orientation, gender identity and gender expression. In 1994, the UN Human Rights Committee delivered a decision in the case of Toonen v. Australia arguing that criminalizing same sex sexual conduct constitutes a violation of the right to privacy and the principle of non-discrimination under the International Covenant on Civil and Political Rights (nearly all countries with sodomy laws have signed and ratified this Covenant). Criminalizing same sex conduct has also been established as a violation of fundamental rights by regional bodies. These criminal provisions not only constitute a violation of civil and political rights in and of themselves because they violate key provisions established by international human rights law; they also have significant human rights implications, representing a serious risk for the exercise of other fundamental rights, such as the right to association, the right to assembly, and the right to expression, the right to health, the principle of non discrimination, just to mention a few. Furthermore, the mere existence of these laws is in many countries an avenue for other human rights violations by state and non-state actors.

Could the Commonwealth provide an important political space, or at least a catalyst, to advance LGBTI human rights issues, especially following the commitment to human rights, democracy and equality strengthened by the 1991 Harare Declaration and reconfirmed in 2002 by the Commonwealth by strengthening its Human Rights Unit. LGBTI civil society participation and advocacy at Commonwealth meetings can provide an important space for activists to call for member states to consider the significant risks criminalization of non normative sexual and gender identities and behaviors poses to the respect of human rights of LGBTI communities around the world.

This event, open to the Trinidad & Tobago public, offers the opportunity for activists, civil society organizations, legal and human rights professionals, and representatives of states and the Commonwealth to share experiences and discuss avenues for advocacy at the domestic and international level, particularly within the Commonwealth, to counter the serious human rights risks to local communities posed by these criminal legal provisions. Participants can: strengthen knowledge of the Commonwealth as organization, its documents and procedures; start conversations around the potential spaces for advocacy within the Commonwealth; exchange views and information on avenues for advocacy within the Commonwealth with other civil society actors, state representatives and officials of the Commonwealth of the Nations; and establish advocacy strategies for CHOGM) 2011 in Sri Lanka.<!–[endif]–> <!–[endif]–>

Article on MSN concerning ID theft. SD ranks near the bottom since SD “cooks the books”.

http://moneycentral.msn.com/content/Banking/FinancialPrivacy/P125094.asp

Updated credit report for Amy Lyngstad. Someone, most likely the Court, had all but one social security number she has used removed. But look at all the aliases and fake addresses! The names do not correspond with the address and are in a random order. But first States Attorney’s, (who was her attorney at one time), letter. She was never arrested or prosecuted for Identity theft of her daughter or the social security numbers on her credit report. Nor the no account checks listed in a brief history of an id theif.

My Fellow Citizens,

I extend my warmest greetings to all of you on the eve of the 60th Law Day of our country. The legal and judicial fraternity of our country, as well as people at large, celebrate November 26 of each year as National Law Day because it was on this day in 1949 the Constituent Assembly of India had adopted our Constitution, which subsequently came into effect on January 26, 1950.

Law Day is an occasion on which we pay our humble tribute to the unique vision and genius of the framers of our Constitution. It prompts us to reflect upon and renew our pledge to protect, preserve and extend the values enshrined in our Constitution. The very first goal of the Constitution, is to secure justice to all — social, economic and political. This mandate not only shapes the rights of the people but also serves as a command to all those who wield authority in the name of the State. As the head of the Indian judicial system, it is my duty to keep the nation informed about the state of affairs in this branch of government.

An independent, accessible and efficient justice-delivery system is a pre-requisite for maintaining healthy democratic traditions and pursuing equitable development policies. In the last six decades Indian courts have played a leading role in protecting constitutional values and upholding the rule of law in our country. The vital social role of the courts has been strengthened by the creative reading of ideas such as ‘equal protection before the law’ and ‘personal liberty’. Especially with the evolution of the Public Interest Litigation (PIL) movement over the last three decades, the understanding of rights has expanded in many directions. From conferring guarantees of a civil-political nature, the fundamental rights have been interpreted to include positive socio-economic obligations on the State. This means that the courts of law are unique spaces where just solutions are devised, in spite of the socio-economic inequalities between the litigants.

JUSTICE KG BALAKRISHNAN CHIEF JUSTICE OF INDIA

India is a diverse country where we are still grappling with social stratification and discrimination on the grounds of caste, religion, gender, language, race and ethnicity among other factors. Conflicts that arise out of such identity-based differences or those related to the distribution of material resources are often very complicated since they involve multiple interest groups. Adjudicating such disputes often calls for a departure from the norm of adversarial litigation and the judges have accordingly devised procedural innovations to respond to the needs of litigants. This means that the role of a judge is not only that of applying the existing rules in a mechanical manner but also interpreting them in a creative manner in order to pursue the ends of justice.

I am deeply gratified by the trust and confidence that the people of this country repose in our judicial system. About 1.8 crore fresh cases had been filed in Indian courts in 2008, reflecting a steady increase in the rate of institution of fresh proceedings over the years. Against this, approximately 14,000 judges disposed of about 1.7 crore cases in 2008, demonstrating a disposal rate of about 1,200 cases per year by each judge. This was achieved notwithstanding the severe shortage of judges and their very heavy work load, abysmal infrastructure and a very challenging environment.

In all, Indian courts processed some 4.8 crore cases in 2008 — which is one of the largest volume of cases faced by any national judicial system in the world. Expert studies have suggested that our judicial strength is only very minimal and large expansion is required to dispose of this case-load. It is therefore quite natural that most cases take several years to be completed. Such is the shortage of judicial officers that, on average, an Indian judge has a total of about 25 minutes to devote to each case.

A significant consequence of the severe shortage of judges is that a substantial number of poor people are unable to obtain the protection of courts to preserve and strengthen their rights. This ‘docket exclusion’ does not bode well for the country as affected people may turn to alternative (including violent) means for securing their rights. On the contrary, there is an urgent need to promote ‘docket inclusion’. There is also a widespread perception that many people are being deterred from approaching the courts on account of apprehensions about undue delay in the delivery of justice. This may indeed be true in some parts of the country where the number of civil cases being instituted are very low in proportion to their respective population-levels. Therefore, any meaningful agenda for judicial reforms must account for the twin problems of high pendency levels as well as the limited access to justice for some sections of society.

This means that even as we devise strategies to combat the existing backlog, we must also prepare for the further expansion of court dockets in the coming years. With gradual improvements in development indicators such as income-levels, access to education and healthcare, we should expect the previously marginalized sections to approach the judicial system in larger numbers, enhancing “docket inclusion”.

In many cases, the undue delay in disposal is a consequence of hurdles placed in the procedural steps involved in litigation. In the course of a legal proceeding, there is a likelihood of delay at various stages from the service of notice upon the parties, the framing of issues, submission of pleadings, examination of witnesses, production of documents and the counsels’ arguments. If a party apprehends an adverse result, there is a tendency on part of litigants or practitioners to place obstacles in these proceedings. The logical response to this endemic problem is that judges need to be more proactive in managing the flow of proceedings before them. Attempts to delay the proceedings should be treated firmly but it must also be kept in mind that the desire to improve procedural efficiency should not compromise the quality of justice being delivered. As inheritors of the common-law tradition, we are bound to follow the principles of natural justice, namely that ‘no man shall be a judge in his own cause’, that ‘no persons shall be condemned unheard’ and that ‘every order will be a reasoned order’.

Even though the judges are the main actors in the justice-delivery system, their efficiency is closely related to the behaviour of advocates, litigants, investigating agencies and witnesses among others. While public scrutiny is rightly being directed towards the performance and accountability of judges, there is also a need to examine the responsibilities of all the other participants in the judicial system. In particular, there is an urgent need to tackle the institution of frivolous claims and the giving of false evidence. Judges can perform their fact-finding and adjudicatory roles in a satisfactory manner only if they receive the co-operation of all the stakeholders. In this sense, the judicial function is as much a collective enterprise as the other wings of government.

A meaningful shift will only occur if attitudes change among the bar. Ultimately it is the responsibility of legal practitioners to advice their clients on the suitability of resorting to litigation. For resolving many categories of disputes, adversarial courtroom litigation is not appropriate since disputes can be amicably resolved at the pre-trial stage. With the objective of promoting awareness about these methods, full-time Mediation Centres have been established in the various High Courts as well as some of the District Courts. Their function is to not only provide mediation services but also to impart training about the same.

I must also emphasize that a large portion of the increase in litigation rates can be attributed to stronger remedies that have been introduced through Central and State legislations over the years. In particular, our trial courts are confronted with a disproportionate number of cases involving the dishonour of cheques, motor accident compensation claims, domestic violence and corruption-related cases. This is of course a natural consequence of the fact that litigant-friendly procedures and remedies were incorporated to address such grievances. Hence, there has been an incentive for parties to come forward and file cases in these categories. However, there has not been a commensurate increase in the strength of judges needed to decide these cases.

SUPREME COURT OF INDIA

In recognition of this fact, the strength of the Supreme Court and the various High Courts has been gradually increased. However, it is the strength of the subordinate courts which calls for a drastic increase. I have repeatedly called for targeted interventions by way of increasing the strength of the subordinate judiciary, while emphasizing the need for establishing more Family Courts, CBI Courts and specialised magistrates’ courts. In recent months, a lot of attention has been drawn to the proposal for establishing ‘Gram Nyayalayas’. Under the Gram Nyayalayas Act, 2008 judicial officers of the rank of Civil Judge (Junior Division) will be appointed to function at the block-level. The intent of course is to bring the justice-delivery system closer to rural citizens who have to otherwise travel to distant district centres. It is estimated that nearly 5,000 judicial officers will be needed to occupy these positions.

Since 2007, some important steps have been taken to improve the quality of justice-delivery. Hundreds of judicial conferences have been organized through the National and State Judicial Academies as well as National and State Legal Services Authorities on the topic of delay and arrears reduction as well as enhancing timely justice to raise awareness about the problem and develop effective strategies. There has been substantially increased attention to the use of Alternate Dispute Resolution (ADR) techniques, in particular mediation and Lok Adalats. A system of planning and management is being developed and recommended to High Courts for their consideration. A National Judicial Infrastructure Plan, A National Judicial Education Strategy and a National Mediation Plan have been developed and are in different stages of implementation. The results of these massive initiatives have been encouraging. Reversing earlier trends, filing of new cases as well as disposal has gone up at the national level. However, aggregate pendency has increased because the increase in filing has been faster than the rate of disposals in general.

I must also comment on the importance of Legal Aid programmes, especially those which seek to impart legal literacy in remote and backward areas. We must acknowledge that access to legal education is still confined to a privileged few and that the existing pool of judges and lawyers is not adequate to bring about the changes that we desire. In recognition of this fact, a Committee headed by a sitting Supreme Court judge has been recently appointed to oversee the training of motivated young individuals as paralegals, who can then expand the reach of the legal aid programmes. We are also in the process of designing a project dedicated to the improvement of access to justice in the North-Eastern region of our country. It is our hope that improved awareness and access to legal remedies will help in mitigating the socio-political conflicts in troubled areas.

Efforts are also being made to incorporate Information Technology (IT) based solutions in order to strengthen the judicial system. Under the E-Courts project, most judicial officers in the country have been provided with computers, printers and access to legal databases. Steps are also being taken to digitize precedents as well as the permanent records of courts at all levels. At present the daily cause-lists, orders and judgments of the Supreme Court and the respective High Courts are freely available online through the Judgment Information System (JUDIS). In the coming years, the objective is to ensure that materials pertaining to all subordinate courts as well as tribunals will also be made freely available through this system.

Another important element of judicial reforms is that of organising educational programmes, which are held at the National Judicial Academy (Bhopal) and the various State Judicial Academies. These programmes are periodically held for the benefit of sitting judges from all levels. They are designed to raise awareness about the latest legal developments as well as the strengthening of skills for court-management, research and writing. Special efforts are made to sensitise judges to the complex interactions between law and social realities. These programmes also serve as a common forum for judges serving in different parts of the country to interact and learn from each others’ experiences.

Recently, the Union Minister for Law and Justice has also unveiled some proposals for systemic reforms. There are plans to establish a ‘National Arrears Grid’ which will compile reliable statistics on the institution, disposal and pendency of cases at all levels. The top law officers of the Central Government have also resolved to reduce the extent of litigation which involves governmental agencies. A ‘National Litigation Policy’ is being designed wherein administrative remedies will be strengthened in order to reduce the burden before the courts. A comprehensive legislation dealing with the subject of standards and accountability in the higher judiciary is also on the anvil.

To conclude, I would like to extend my heartfelt gratitude to all my colleagues who are serving at the various levels of the judicial system. I hope that they will all strive to uphold the high standards of dignity and integrity that are expected from anyone who holds a judicial office. I must also place on record my gratitude to the administrative staff members who have been working hard to keep pace with the increasing case-load. Like any public institution, the quality of justice-delivery also depends on the trust and confidence of the larger public. We rely on an active bar, a free press and a vigilant citizenry to point out our unintended mistakes so that we can improve our functioning. I sincerely hope that the dialogue between the judiciary and the various stakeholders in our society continues to take place in a cordial and constructive manner.

Jai Hind!

http://beta.thehindu.com/news/national/article54845.ece?homepage=true

Vendredi 30 octobre 2009, soirée d’ouverture de la 14^ème édition du festival de court-métrage, à l’Eldorado, Dijon.

Humble spectatrice depuis deux ans, je n’ai pas suivi le conseil de l’affiche de prendre un maillot avant de venir au film; j’aurais plutôt du prendre un couteau pour couper le déjà-célèbre brouillard « made in Dijon ». Mais rien ni personne n’empêche une accro de cinéma d’y aller.

Dehors et dedans ambiance de festival : deux-trois personnes en train d’acheter, au dernier moment, des tickets pour le soir même; d’autres venus une heure avant pour occuper, comme toujours, les meilleures places. Pas de chance pour moi. J’occupe une place avec vue directe sur les boucles rebelles d’un hippie sorti d’un autre film que ceux de ce soir-là. Trop tard pour battre en retraite : je me fixe et je m’enracine dans la chaise en train de jeter un coup d’œil sur le programme.

Sept court-métrages internationaux sur des thèmes divers, films et animations mélangés. Des titres qui accrochent ou, au moins, qui réveille l’intérêt : Orgesticulanismus, Anima, Chainsaw.

Vestido, le premier sur la liste, nous raconte un bout d’histoire drôlement romancée, presque banale et désuète : un couturier chilien tombe amoureux d’une jeune fille qui vient le voir pour une robe. 24 minutes pendant lesquelles elle fouille les placards et il lui coud une bleu robe satinée et provocatrice. Fin attendue : elle s’en va avec sa robe, faite gratos, et il reste chez lui, déserté et amoureux. Une femme, dans la trentaine, baille ennuyée à mes côtés. Juste derrière, un jeune homme sirote indifférent son jus. Ok, au suivant !

Orgesticulanismus, neuf minutes dédiées au mouvement à travers les yeux d’une personne immobilisée dans un fauteuil roulant. On nous parle en voix off sur des images d’animation rythmées d’une musique frénétique et accablante. Une psychologie positive qui émane de bonnes vibrations et le besoin d’agir surtout quand on est privé de la mobilité. J’ai envie de sauter de partout et remercier pour  la normalité de mes fonctions mécaniques. Touché.

On enchaîne avec un festin allégorique, dans un immeuble sombre où les planchers s’effondrent au fur et à mesure que la nourriture est avalée par des gens devenus des sortes d’animaux de proie. L’excès et la voracité sont montrées dans des plans d’ensemble ou rapprochés, selon le regard méprisant et distant d’un valet qui s’occupe du service de table. La musique classique accompagne la tension croissante et la voix du valet vient comme une sentence: « Next floor ». Les ricanements des gens qui font semblant d’avoir compris la morale du film me plongent dans des analyses nouvelles. Apparemment, quelque chose m’échappe.

Chainsaw, Tierra y Pan, Anima, My Rabbit Hoppy n’ont pas réussi à m’arracher ni des rires fous, ni des ronflements, ni des chuchotements au téléphone. En fait, j’ai regardé curieuse jusqu’à la fin, attendant qu’un météorite tombe, qu’un mûr s’écrase, qu’un court-métrage me laisse bouche-bée…mais non, toute la soirée je suis restée comme le roi Lear, la main tendue en espérant…

La joie allait survenir le soir de la clôture, dont l’annonce montrait un respectueux hommage aux 50 ans de la Nouvelle Vague. Youpiii. Toujours les goldies pour terminer en gloire. Et ils ont bien choisi, car les cinq court-métrages, Charlotte et son Jules (Jean-Luc Godard), La Luxure (Jacques Demy), Les Veuves de 15 ans (Jean Rouch), Du Côté de la Côte (Agnès Varda), Une Histoire d’Eau (François Truffaut et Jean-Luc Godard) ont fait le délice du public et le mien. Ravie.

Une bonne surprise fut la diffusion des court-métrages gagnants aux deux sections, nationale et régionale. Le coup de cœur allant à celui d’un jeune réalisateur breton, fan du célèbre Bruce Lee, qui anime pour 8 minutes une poupée jaune en caoutchouc à son effigie. Avec des click-clacs de tête et des onomatopées de guerrier, le                  « Petit Dragon » en miniature explore la chambre, se découvre lui-même tout en montrant des coups de maître d’arts martiaux. L’inédit réside dans le mélange habile  d’humour et  d’ironie de la représentation. Adorable et amusant.

La lumière s’allume, des applaudissements coulent en vagues, certains se réveillent. Un verre de crémant pour arroser la réussite du festival et pour échanger des impressions. Je pars songeant au prochain festival. C’est marqué dans le calendrier 2010 : fin octobre début novembre.

D-M.R

David Hackbart, 35, will be awarded $50,000 after being ticketed in Pittsburgh for flipping the bird in traffic.

Pittsburgh City Council approved the settlement of a free speech lawsuit filed by Hackbart. Hackbart flipped the bird at another driver in 2006 and then did it again to a second driver who turned out to be a police officer.

It is again astonishing to me that the police persisted in this litigation to the point of a trial. If the public is upset, it should be directly that anger told the officials who persisted in litigating this issue.

For the full story, click here

With just one week and over 250,000 sales under its belt, one would think that Verizon Wireless executives would be breaking out the bubbly to celebrate the successful release of its much-anticipated competitor to AT&T’s iPhone, the Android 2.0. But, alas, a lawsuit filed by AT&T in an Atlanta Federal Court earlier this month has forced Verizon’s management team to forgo the Dom in favor of defense attorneys.

Droid creators carefully designed the device, anticipating several potential legal problems with other competing smartphones. For instance, one of the biggest criticisms of the new phone by techies thus far is its failure to include a pinch-to-zoom feature, which would enable a Droid user to shrink and expand the screen to her liking. The feature, however, was intentionally excluded from the Droid’s wide array of functions, as Apple has recently filed a patent application for its pinch-to-zoom technology on the iPhone.

The lawsuit that pits the two mobile service provider powerhouses AT&T and Verizon against each other involves a clever ad campaign launched by Verizon earlier this month: “There’s a Map for That.” AT&T claims that the maps published by Verizon in the commercials may confuse people, duping them into thinking that the white spaces on the maps represent areas where AT&T lacks coverage. Furthermore, AT&T alleges that the ads are causing the company an incalculable market share loss. In its complaint, AT&T requested a temporary restraining order that would force the ads to be pulled until the litigation is resolved.

The new Android 2.0

Verizon claims that the suit is meritless. In response to AT&T’s seemingly weak claim, Verizon filed a scathing, forty-four page response with the court, stating climactically that “AT&T did not file the lawsuit because Verizon’s ‘There’s a Map for That’ advertisements are untrue; AT&T sued because Verizon’s ads are true and the truth hurts.”

It seems like AT&T has gotten its feathers ruffled not because the ad is deceptively wrong, but instead because the ad is deceptively right. AT&T’s real beef is that it failed to update its own 3G service in anticipation of the smartphone revolution, and it must now suffer the consequences of a poor business decision. From this tech-neophyte and iPhone devotee’s point of view, perhaps AT&T should stop whining that the smartphone underdog finally caught up in the tech race and start working on expanding its own 3G network.

– Lauren Sibyl Bair

A report published today by the Human Genetics Commission (HGC) in the United Kingdom, which advises the government in that jurisdiction in relation to genetic issues, contains a claim that police officers deliberately arrest people in order to get DNA samples from them to add to the DNA database. The claim, put forward by an unnamed retired police superintendent, is contained in a report entitled “Nothing to Hide, Nothing to Fear?”.

Obviously, it is difficult to investigate the truth of the claim that persons are being arrested solely for the purpose of obtaining DNA samples where they would not be arrested in other circumstances, and indeed, such a claim has been denied by the Association of Chief Police Officers. However, the Chairman of the HGC, Professor Jonathan Montgomery, has admitted that there is some evidence to substantiate the allegation. Professor Montgomery has also suggested that the DNA database in the UK has suffered from “function creep” since its introduction in 1995, evolving from a database of offenders into a database of suspects. Liberty’s director of policy Isabella Sankey has also observed the extent of the use currently being made of DNA databases and the manner in which policing decisions can be influenced:

Not only are we stockpiling the most sensitive information of innocents who have never been charged, let alone convicted, we are also creating a perverse incentive for officers to arrest the innocent.

The UK DNA database is the largest of its kind in the world and this is not the first time that it has been the subject of controversy and debate, although Professor Montgomery suggests that there has not been enough public or parliamentary debate on the issue.

Just short of a year ago, in December 2008, the European Court of Human Rights (ECtHR) ruled against the United Kingdom in the highly significant case of S and Marper v United Kingdom. This case arose out of the indefinite retention on the DNA database of samples taken from the applicants, despite the fact that in the case of the first applicant there was a full acquittal at trial and in the case of the second applicant proceedings were discontinued. While the House of Lords had held against the applicants, ultimately, the Grand Chamber of the ECtHR in a unanimous decision, held that such indefinite retention of the DNA profiles of persons who have not been convicted of any criminal offence amounted to a violation of Art. 8 of the European Convention on Human Rights; the right to respect for private life.

Resultantly, while DNA profiles extracted from samples taken from persons who are ultimately convicted may be retained on a DNA database indefinitely, those relating to persons who are ultimately acquitted or against whom proceedings are not instituted or are discontinued, cannot be indefinitely held. Just last week, the Crime and Security Bill 2009 was introduced in the UK, containing a proposed time limit of 6 years for the retention of DNA profiles of persons in this latter category. After 6 years all such profiles would have to be destroyed.

In Ireland, under the Criminal Justice (Forensic Evidence) Act 1990, as amended by the Criminal Justice Act 2006, bodily samples and any information drawn therefrom (e.g. DNA profiles) must be destroyed at the expiration of 12months from the taking of such samples if proceedings are not instituted against the relevant suspect and the failure to institute the proceedings within that period is not due to the fact that he has absconded or cannot be found. If proceedings are instituted within 12 months and the suspect is thereafter acquitted or discharged or the proceedings are discontinued, the relevant samples or record of information drawn from such samples must be destroyed within 21 days. This is much more restrictive in terms of time limits than the proposed legislation put forward at present in the UK.

The Irish experience of the taking and use of DNA evidence has not been without its controversies, nonetheless. One recent case which examined some relevant issues was People (DPP) v Boyce [2005] I.E.C.C.A. 143; [2008] IESC 62. The accused in this case was convicted in the Central Criminal Court of six counts of rape, attempted rape, indecent assault or sexual assault. A question arose as to the manner in which a blood sample had been taken from the accused in the pre-trial period and as to whether or not such a sample could be taken with the consent of the accused, outside of the statutory requirements of the Criminal Justice (Forensic Evidence) Act 1990. The defence argued that where a person was arrested on suspicion of the commission of an offence under legislation to which the 1990 Act applied, then the statutory regime had to be followed. Both the Court of Criminal Appeal and the Supreme Court, however, held that the 1990 Act was an addition to the common law power to take samples with consent, not a replacement for that power. Therefore, it was held that where there is consent to the taking of a sample (a blood sample in this case, but presumably the principle applies equally to other bodily samples) there is no need to satisfy the requirements of the 1990 Act.

Fennelly J., dissenting in the Supreme Court was of the opinion that the notion that the carefully thought-out scheme within the 1990 Act could be set at nought was “absurd”. Writing elsewhere, Michael O’Higgins SC has suggested that this was

an example of a case where one might have said, was the Supreme Court going to stand up and be counted, by saying that the 1990 Act was passed for a very good reason, but that it had been circumvented.

It seems it was not.

Another controversy in forensic sampling in Ireland relates to the use which can be made of forensic material which has been unlawfully retained and ought to have been destroyed. This arose in the case of DPP (Walsh) v Cash, which is currently before the Supreme Court and was previously highlighted on this blog here. It concerns fingerprint evidence which ought to have been destroyed but was in fact kept on the Garda Technical Bureau database. The fingerprint was used to identify a suspect in a burglary which subsequently occurred and he was arrested and fingerprinted again. The current appeal relates to whether or not the unlawful, and possibly unconstitutional, retention of the fingerprints ought to have led to the exclusion of all other evidence subsequently gathered in the case. In the High Court, Charleton J. held that the evidence was correctly admitted at trial and that

evidence resulting from a detention based upon a suspicion that cannot be proved as being founded entirely upon evidence lawfully obtained is not, for that reason, made unlawful.

It remains to be seen whether the Supreme Court will be of the same opinion.

Returning to the report of the HGC in the UK, that body has suggested that there is need for greater clarity as to when it is appropriate to take a DNA sample from arrested persons. Such clarity may well be of benefit in the Irish context too. More generally it seems clear that all jurisdictions which operate DNA databases ought to be aware of the dangers of function creep and the potential impact which the use of such databases can have on the exercise of police discretion.

publicbroadcasting.net : GA Supreme Court Rules Against Sex Offender (click here for audio report)

Atlanta, GA (WABE) – A Georgia sex offender has lost his appeal to the state supreme court. State law requires sex offenders to register with the county sheriff within 72 hours of moving.

In January, convicted offender Derrick Todd Dunn temporarily located to a motel in Gordon County in northwest Georgia. Six days later he moved to a permanent home. When Dunn then registered, he was arrested for not registering the motel address.

Dunn appealed, saying registration requirements are vague, and that someone entering the state had more leeway than an offender already living in-state. In a unanimous vote, the Supreme Court of Georgia disagreed.

Christopher Paul was Dunn’s public defender. He says he’s disappointed with the court’s decision and the state’s sex offender law: “It’s at best an inartfully-drafted statute, and there’s lots of problems with the statute the way it’s currently drafted.”

Paul does not know if his client will file an appeal to the US Supreme Court.
Derrick Todd Dunn remains in a state prison where he’ll likely stay for several years.

This is not surprising coming from Georgia, as this state has some of the harshest and most draconian sex offender laws in the nation.

Funding Source: Pennsylvania Commission on Crime and Delinquency
Funding Type: Grant
Total Available: $6.5 Million
Award Ceiling: Varies by category
Deadline: 12.31.09
Eligibility: PA Counties and Cities

Description:
The Pennsylvania Commission on Crime and Delinquency (PCCD) is now accepting competitive Applications for funding under the American Reinvestment and Recovery Act(ARRA) Justice Assistance Grant.  Applicants may submit their proposal under any one of the following five (5) categories:

Michael Sampson, 41, succeeded in turning a minor driving with a suspended license into a charge of threatening a judge and intimidating a witness — all without uttering a word.

Sampson was in municipal court when officer Sean Wilcox was testifying. Sampson allegedly pointed at Wilcox, then pointing towards his own head as if holding a gun. When the judge intervened, he allegedly pointed his finger at the judge and did a throat slashing motion across his own throat.

He was quickly convicted on the original charges and then charged with four counts of making a criminal threat and one count of aggravated intimidation of a witness. That’s pretty good work without uttering a word.

For the full story, click here

Via the IrishLaw email list comes news of this exciting opportunity:

Applications are invited for the post of Judicial Research Assistant in the Courts Service.  Appointments are for a maximum period of two years. Judicial Research Assistants provide a legal research support to members of the Irish Judiciary. The posts are based in the Judges Library, Four Courts, Dublin. The successful candidates must have:

• A law degree at a minimum standard of 2:1
• An extensive knowledge of Irish Law and the Irish legal system
• The ability to use information technology
• An extensive knowledge of modern research methods and materials
• A proven  ability to edit and proof read documents
• A proven ability to identify legal issues and write concisely about them

Applicants must be in a position to take up the post on a fulltime basis early in 2010.

A good knowledge of Irish and in particular an ability to read and understand legal materials in the Irish language would be an advantage.

Remuneration for this post as at 18th November 2009 is the sum of EUR32,074 per annum.

Application form and Information booklet are available here

Applicants should send their completed application form by email to competitions[at]courts.ie marked Research Assistant Competition, or by post to Fiona Tormey, Human Resources Directorate, Courts Service, Phoenix House 15/24 Phoenix Street North, Dublin 7, marked Research Assistant Competition, not later than 4.00 pm on Friday 11th December 2009.

The NBA on TNT recently introduced a series of new commercials for the 2009-10 NBA season. The commercials star Rainn Wilson, famous for his role as Dwight Schrute on The Office, alongside NBA stars Gilbert Arenas, Deron Williams, Dwight Howard, and Derrick Rose. In the commercials, Arenas, Williams, Howard, and Rose, play the foil to Wilson’s somewhat naive, but completely annoying, cab driver.

The commercials earned generally negative reviews, but have recently come under fire for something a bit more troubling than simply being unfunny. Donal Logue, a working actor perhaps most famous for his role in the short-lived Fox series Grounded for Life, recently attacked the commercials as a rip-off of his character, “Jimmy the Cab Driver.”

Logue appeared as “Jimmy the Cab Driver” in a series of commercials for MTV in the late 90s. Judge for yourself, but from the striking physical similarities (including mustache, mullet, glasses, and indeterminate accent) to the similar structure (unwitting passenger is forced to listen to the eccentric ramblings of a cab driver), it appears Logue may be on to something.

TNT and Wilson have both publicly addressed the creation of Wilson’s NBA cab driver character. TNT would have you believe the idea came from the HBO series Taxicab Confessions.

Wilson, perhaps attempting to set up a scenes a faire defense or perhaps arguing his character is simply a derivative work, recently described the creation of his character, saying “They [NBA] had this crazy cab driver and I’ve kind of seen that character before.” Wilson went on to say:

I was very excited because the night before we shot, I was like ‘You know what? I need a mullet. I need a mustache.’ And he [cab driver] is my ode to all of my crazy cousins and relatives in Wisconsin and Minnesota. I love you guys.

Logue is not buying either explanation. The only apparent connection between Taxicab Confessions and the NBA commercials is that both take place in a taxi. As Logue points out, Taxicab Confessions focused on the outrageousness of the passengers’ confessions to an anonymous cab driver, while the NBA on TNT commercials focus on the outrageousness of Wilson’s cab driver himself.

As for Wilson’s explanation, Logue says:

He [Wilson] made it seem like there was a vague army of similar characters that came before him, all fairly indistinguishable . . . but since he wanted a mustache (I had one too), a mullet (over the course of some spots Jimmy had one) and for his character to be from Wisconsin, he was TOTALLY different.

Neither the NBA nor TNT has responded directly to Logue’s recent blog post, and TNT has yet to pull the commercials.

– Michael Quinlan

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