The benefits of breastfeeding have been made well known in recent years, with government campaigns, medical organizations, and the media extolling the advantages for babies and mothers. When I became a mother a few years ago, I was committed to breastfeeding my new baby. I found fantastic support here at Thomson Reuters, where I was provided time and a comfortable, well-equipped, private, “Mother’s Room” to express breast milk during the workday. But not all working mothers enjoy such benefits; and breastfeeding can pose some logistical challenges to employers when they are asked to provide accommodations for employees who need to express their breast milk at the workplace. 

The Patient Protection and Affordable Care Act PL 111-148, 2010 HR 3590 made it a requirement for employers with over 50 employees to provide reasonable, unpaid, break time as needed for employees to express breast milk for nursing children up to one year of age. It also required that the employer provide a private place (that is not a bathroom), for employees to express their breast milk. The move was heralded as a positive step in providing protection to nursing mothers who work outside the home, and in support of breastfeeding. But as they exist currently, the protections provided by the Patient Protection and Affordable Care Act are limited to non-exempt employees. 

The Breastfeeding Promotion Act of 2011 proposes to amend the Civil Rights Act of 1964 to explicitly protect breastfeeding mothers from discrimination, and expand the current break time requirements to salaried, exempt, employees. I wanted to find this proposed legislation and track its progress. I knew the popular name, so I ran the following search in the search box at the top of the Congressional Bills category page under Federal Proposed & Enacted  Legislation on WestlawNext: 

“BREASTFEEDING PROMOTION ACT OF 2011” 

We get two results as of 9.29.2011. One is the Senate Bill (2011 CONG US S 1463), and the other is the House bill (2011 CONG US HR 2758). 

To check the status of these bills,  go to Bill Tracking under Tools and Resources under Federal Proposed & Enacted  Legislation. I wanted to search for both of these bills, so I used the Terms and Connectors search box instead of the template. This was my search: 

CI(1463) CI(2758) & TI(BREASTFEEDING) 

Or, track the bill using CapitolWatch.  The CapitolWatch link on the tools tab in WestlawNext. Find the bills and click, track. 

Click to Enlarge

You’ve no doubt heard about the legislative controversy currently brewing in Wisconsin.  Democratic members of the Wisconsin State Senate have left the state, escaping to neighboring Illinois to prevent a quorum in the Republican-controlled Senate.  They did so to preclude a vote on a bill that would, among other things, significantly curtail collective bargaining rights for public employees.

Legislators from Indiana have now tried the same tactic.  As this story explains, several Democratic members of the Indiana House of Representatives have also fled to Illinois to make a quorum impossible.  A statement released by the legislators mentions eleven individual “bills of concern” and states, in part:

[W]e have relocated to Urbana, Illinois, for the immediate future. By staying here, we will be giving the people of Indiana a chance to find out more about this radical agenda and speak out against it.  We will remain here until we get assurances from the governor and House Speaker Brian Bosma that these bills will not be called down in the House at any time this session.

The bills at the heart of the controversies are available on Westlaw.  See below for search suggestions.

Wisconsin: A search for collective! /3 bargain! & da(2011) in the Wisconsin Bill Tracking – Full Text (WI-BILLTXT) database will return both the Senate and Assembly versions of the bill (both are Bill No. 11).

Indiana: As mentioned above, there are eleven bills at issue.  As an example, the first one mentioned in the statement (House Bill 1002) can be found with the following search in IN-BILLTXT: CI(1002) & da(2011).

U.S. Supreme Court Justice Clarence Thomas has gone nearly five years without asking a question during oral argument before the Court.  According to this New York Times story, his last question came on February 22, 2006 (H/T Wall Street Journal Law Blog).

To find Justice Thomas’s most recent question, we can search the Supreme Court Oral Argument Transcripts (located in the SCT-ORALARG database on Westlaw.com, and available via the Trial & Oral Argument Transcripts category page on WestlawNext).  A search for Justice /2 Thomas & da(2/22/2006) returns just one transcript, Holmes v. South Carolina.  The transcript of that argument (2006 WL 496231) contains the last verbal interaction between Justice Thomas and a litigant before the Court.

Note: The database mentioned above contains transcripts beginning with the Court’s 1990-1991 term.  However, prior to October 2004, the Court did not indicate on the transcript which Justice had asked a specific question.  Instead, the generic term “Question:” was used to indicate that a member of the Court had asked a question.  Thus, when searching for older transcripts, one would not want to search by the Justice’s name as we did above.

A Pennsylvania appellate court recently heard thirteen-year-old Jordan Brown’s appeal of a lower court’s decision to try him as an adult for the murder of his father’s fiancée.  Brown, who was eleven years old at the time of the 2009 killing, had moved to have his case transferred to juvenile court, but a judge denied that request in March of 2010.

Pennsylvania law requires that individuals accused of murder be tried as adults, unless the accused succeeds in having the case transferred to juvenile court.  PA ST 42 Pa.C.S.A. § 6355(e) provides, in part:

Where the petition alleges conduct which if proven would constitute murder, . . . the court shall require the offense to be prosecuted under the criminal law and procedures, except where the case has been transferred pursuant to section 6322 (relating to transfer from criminal proceedings) from the division or a judge of the court assigned to conduct criminal proceedings.

The “Section 6322” referred to in that subsection allows the accused to attempt to have his case transferred to juvenile court, but places the burden of proof on the juvenile:

[T]he child shall be required to establish by a preponderance of the evidence that the transfer will serve the public interest.

It is not uncommon to hear stories of 16 or 17 year-olds being tried as adults, but I can’t recall hearing of many 11-year-olds facing trial as an adult.  According to this story, Brown would be the youngest person in U.S. history to face life without parole if convicted.

RESEARCH

I ran a quick  search on Westlaw.com to see how many cases I could find that dealt with young individuals being tried as adults.  I chose to look for ages 5 to 12.  The search, age year-old /2 5 6 7 8 9 10 11 12 /s tried trial try! punish! charg! indict! +5 “as an adult” in ALLCASES, returned 40 results.  At least one of the cases also dealt with an individual who, like Brown, was 11 at the time of the offense.  Another case, Commonwealth v. Kocher, 602 A.2d 1308, which also happened to be a Pennsylvania case, involved a nine-year-old charged as an adult.

A new issue emerged in recent months surrounding the administration of the death penalty in the United States: a nation-wide shortage of thiopental sodium, one of the drugs used in lethal injections.  Several stories noted the shortage and its possible ramifications.  See here, here, here, and here.

Last week, the only U.S.-based manufacturer of the drug announced it would no longer be producing it.  The linked story explains why:

The manufacturer, Hospira Inc., of Lake Forest, Ill., had originally planned to resume production of the drug, sodium thiopental, this winter at a plant in Italy, giving state corrections departments hope that the scarcity that began last fall would ease.

But the Italian authorities said they would not permit export of the drug if it might be used for capital punishment. Hospira said in a statement Friday that its aim was to serve medical customers, but that “we could not prevent the drug from being diverted to departments of corrections” and the company did not want to expose itself to liability in Italy.

Due to the shortage, Oklahoma executed an individual in December using phenobarbital as a substitute for thiopental sodium.  Other states, including Ohio, are poised to make the same switch.

Filings / Arguments citing the shortage: Death row inmates facing execution have begun to cite the drug shortage in efforts to delay their executions.  I ran a search on Westlaw in the State and Federal Civil Trial Court Filings (FILING-ALL) and BRIEF-ALL databases for: THIOPENTAL PHENOBARBITAL & “DEATH PENALTY” “CAPITAL PUNISHMENT” “LETHAL INJECTION” EXECUTE EXECUTION EXECUTED EXECUTING & da(2010 2011).  Among the results are at least a few documents that note the shortage of the drug.

The 112th Congress began its first session Wednesday, January 5.  Among the business taken care of in the House of Representatives was the election of a new Speaker of the House, Ohio representative John Boehner. 

To read the blow-by-blow account of the election of Mr. Boehner, including who else was nominated, who voted for whom, and “passing the gavel” remarks by former Speaker Nancy Pelosi, try a search of the Congressional Record (CR) for: boehner & da(2011).  Among the results will be a document entitled “Election of Speaker.”

The article linked above also mentions another action taken by the House on its first day of the session: the modification of House rules.  A document retrieved by the aforementioned search, entitled “Rules of the House,” sets out the rule changes and includes statements by several representatives for and against the changes.

The U.S. Court of Appeals for the D.C. Circuit recently affirmed the contempt conviction of a defendant who directed an obscenity at a judge during a sentencing hearing.  The opinion is available on Westlaw at 2010 WL 5299865.  If you click that link, you’ll notice that the title of the case is In re Sealed Case because, naturally, the case has been sealed.  This brings to mind a research problem I’ve encountered a few times.

We often get calls from individuals looking for a specific case about which they have limited information.  Perhaps the most frequent such call is from a person who knows the name of at least one party, but may not know the citation, jurisdiction, or date of the opinion.  The easiest method to find such a case is to perform a party-name search using the Title field.  For example, if you know that one party’s name is Smith and the opinion was issued by a judge in the Federal District Court for the District of Minnesota, you can run a search in the DCTMN database for ti(smith).  However, if the case you’re looking for has been sealed, that search will not return it, because Smith’s name will not appear in the case title.  You may be thinking, “if the case is sealed, how would I know any of the parties’ names to try that search in the first place?”  For every sealed case, there are likely numerous individuals who are aware of the names of the parties.  If you are one of those people, or asked to find the case by one of those people, your first instinct will likely be to search by the parties’ names.

Given the possibility of a case being sealed, it might be worth running a search using information other than the parties’ names when the case you’re looking for cannot be found via a party-name search.  For example, knowing the defendant’s name would do us no good in finding the sealed case linked above, but a search in the CTADC database for contempt /s obscen! vulgar! will retrieve the case.

It is relatively rare that this will happen (a search in ALLCASES for ti(sealed) returns only about 500 documents, not all of which are sealed cases), but I have had at least a couple calls in which we have discovered, after several failed party-name searches, that the case we were looking for had been sealed.

Last month,  popular singers Usher and Alicia Keyes were sued in the Southern District of New York for copyright infringement.  The plaintiff, Wadena Pyatt, claims that the defendants’ song “Caught Up” is strikingly similar to her own less-famous song also called “Caught Up.”  Pyatt seeks actual damages and disgorgement of profits; you can view the complaint at 2010 WL 4703559.

It is not uncommon for lesser-known artists and singers to sue their more famous counterparts for claims of copyright infringement.  Back in 2002, for example, Brigham Young student Clinton Poulsen claimed the pop group ‘N Sync’s song “See Right Through You” stole portions of his own, similarly-titled song.  Usher himself was involved a similar suit in 2008 in which the composer-songwriter Ernest Straughter (albeit a much more famous plaintiff than Pyatt or Poulsen) claimed that Usher’s song “Burn” infringed some of his original work.  You can view the amended complaint at 2009 WL 1406539 .

We weren’t able to find much on the origins of the old addage,  ”write a hit, get a writ.”  In the Intellectual Property Texts and Periodicals (IP-TP) and UK Journals (UK-JLR), we retrieved four doucuments with:

hit /4 writ

We nevertheless found relevant documents searching for cases addressing “strikingly similar” (vs. “substantially similar).  For example:

Our query for this result was wp(“strinkingly similar” “striking similarity”)

The case is cited several times for this idea.  In Patry on Copyright:

“The opining of experts that the similarities are “striking” is (in the absence of access) almost always a disingenuous effort to elevate common place similarities into heightened ones in order to avoid summary judgment.” Striking Similarity – Definitions, PATRYCOPY § 9:44  

And, this memo from Beyonce:

Like probative similarity, “striking similarity” is an analytical tool for determining whether factual copying may be inferred from circumstantial evidence. Whereas the probative similarity inquiry requires independent proof of access before an inference of factual copying may arise, the striking similarity inquiry does not; the striking nature of such similarities is itself enough to give rise to an inference of access. Ty, Inc. v. GMA Accessories, Inc., 132 F.3d 1167, 1170 (7th Cir. 1997). The striking similarity test should be “applied with particular stringency in cases …involving popular music.” Tisi, 97 F. Supp.2d at 548. 2008 WL 5358761

Finally, we also reviewed, Well I Wonder, Wonder…Who Wrote The *#!@( 3) ( 3)( 3)( 3)( 3)( 3)( 3)*! Song: A Call for hte Aboloishment of Frivolous Lawsuits in the Music Copyright Infingement Arena Through the Right Mix of Existing Law, DePaul-LCA Journal of Art and Entertainment Law, Fall 1997:

“However, it is not always the unknown songwriter who suffers in copyright infringement lawsuits. The well-known artist can also fall prey to actions which unjustifiably accuse him of the theft of the songs which are in actuality his own original creations.”

Another day, another blizzard.  The northeastern United States is recovering after 20 to 30 inches of snow fell over the weekend.  The storm has severely disrupted transportation throughout the region, rendering highways impassable and stranding subway riders in New York City.  Like thousands of others attempting to fly to or from a city in the Upper Midwest during our own snow-filled weekend of December 11-12, I ended up stranded in an airport (in my case the Detroit Metro Airport) due to flight cancellations.  During the extra 24 hours I spent in Detroit, I had ample opportunity to think about possible legal issues surrounding such a situation.

Obviously, airlines include language in their ticket purchase agreements releasing them from liability for cancellations or delays.  I wanted to check, though, to see if any resourceful litigants had found ways around those exculpatory clauses.

I tried a WestlawNext search in All State and Federal Jurisdictions for: liability for flight delay or cancellation (for Westlaw.com users, try an ALLCASES search for delay! cancel! /5 plane airplane flight /s liab! or sy,di(delay! cancel! /5 plane airplane flight /p liab! breach!), which should retrieve some comparable results).  A number of the results involve plaintiffs asserting tort claims, e.g., intentional infliction of emotional distress, to circumvent the bar placed by the contractual language.  Those claims generally found little success, with one court writing:

Plaintiff must establish both the existence and the violation of a duty owed to her by Defendant to establish liability in tort. . . It appears that Plaintiff does not complain of any duty of care owed by Defendant separate and apart from the Conditions of Carriage. . .  Even if Plaintiff’s allegations could be construed as a duty separate and apart from the contract, Defendant had no duty to provide Plaintiff with a stress-free flight environment.  Ray v. American Airlines, Inc., 2009 WL 921124 (W.D. Ark. Apr. 2, 2009).

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A new Mexican Legal Dictionary app was recently released for the iPad, iPhone, and iPod touch.  As mentioned here, the app currently includes 2,300 legal terms, with audio pronunciation guidance in both Spanish and English.

The dictionary is useful for anyone looking for an understanding of Mexican legal terminology and concepts.  For example, you may have heard about a recent explosion at a resort in Playa del Carmen, Mexico.  An attorney in the United States thinking about legal claims that might result would likely assume that negligence claims are a good possibility.  A search of the Mexican Legal Dictionary for “negligence” returns just two results, as shown below:

Clicking on “Comparative Negligence” gives us an explanation as to why more results weren’t returned: the Mexican legal system “has not been developed in the area of Tort Law.”  But there may be some relevant Civil Code provisions in the area of “Extracontractual Liability.”

Searching the dictionary for “tort” returns a result giving a bit more explanation:

You can also search the Dictionary using either English or Spanish, so if you come across a Spanish term, plug it into the search box to find its English translation and definition.

Update: Mexican Legal Dictionary available on iTunes //