A few weeks ago, while listening to public radio’s “On the Media” program, I heard an interesting interview with Carl Malamud, of Public.Resource.Org. Mr. Malamud was discussing public standards created by private or industry organizations that have been incorporated by reference into the Code of Federal Regulations and other administrative codes. The conversation focused on the general unavailability of these standards to the public, and how you often must purchase the standards from the entity who drafted the particular standards, which can get expensive. Mr. Malamud’s argument is that if language is incorporated by reference into the administrative code, and enforceable as law, it should be publicly available, as it is no longer private property.

Mr. Malamud mentioned the 2002 Veeck case (49 F.Supp.2d 885), where a Texas web-developer purchased the Model Building Code (incorporated by reference into the Texas Building Code) and placed it online. That case went up to the 5th Circuit.  See 293 F.3d 791. The 5th Circuit found that while the Model Building Code might have had copyright protection as a Model Code,  it was no longer copyrightable once it was incorporated into the Texas Code.  This decision was specific to the Texas Building Code situation though, and does not necessarily extend to law incorporated into the Code of Federal Regulations. The Veeck decision has seen some serious criticism.  William Patry calls the decision “deeply flawed” and concludes:

Given the increasing tendency of government to adopt ready-made codes developed by private industry, there will likely be more such cases. So long as the public is not denied access (thereby eliminating any due process concerns), it will benefit from the lower costs made possible by private development. Copyright in such works should be upheld. Rules developed in the 19th century no longer fit the increased budgetary pressures on government and the wide dissemination made possible by the Internet. Private companies play a significant role in creating and disseminating a wide variety of materials used by government with the consent of those governments. Those creative efforts are deserving of protection, absent compelling evidence that the public is being denied access by virtue of the copyright. The desire of competitors to free-ride on the efforts of others has no bearing on whether access is, in fact, already present.

2 Patry on Copyright § 4:84  

But, a fair number of Veeck’s 283 citing references continue to cite ‘broad policy considerations’ as reason for why standards should fall outside the copyright protection.  See for example, Pamula Samuelson’s,  Questioning Copyrights in Standards, 48 B.C. L. Rev. 193. 

Mr. Malamud’s organization has purchased a number of copyrighted standards that he intends to publish online to force the issue in regards to the CFR. PublicResource’s CodeCity is here.

ADDITIONAL RESEARCH REFERENCES

WestlawNext search in secondary sources:

veeck & private or industry standards incorporated by reference into regulation

Relevant results inlcude:

Lawrence A. Cunningham, Private Standards in Public Law: Copyright, Lawmaking and the Case of Accounting, 104 Mich. L. Rev. 291 (2005)

Katie M. Colendich, Who Owns “The Law”? The Effect on Copyrights When Privately-Authored Works Are Adopted or Enacted by Reference into Law, 78 Wash. L. Rev. 589 (2003)

Shubha Ghosh, Copyright as Privatization: The Case of Model Codes, 78 Tul. L. Rev. 653 (2004)

In the wake of the Trayvon Martin killing by George Zimmerman on February 26th, Florida’s “Stand Your Ground” law has come under intense scrutiny. The law, passed by Florida legislators in 2005, allows people to employ deadly force in cases of self-defense where they believe their lives are at risk. (2005 Fla. Sess. Law Serv. Ch. 2005-27) The law’s original Senate sponsor, Durrell Peaden, stated it was crafted after an elderly man from Pensacola shot an intruder who tried to loot his hurricane-ravaged home. George Zimmerman now seeks protection under “Stand Your Ground” by claiming that he feared for his life and that his actions were made in self-defense.

While the facts remain in question, a few observers have opined that “Stand Your Ground” is inapplicable in the Trayvon Martin shooting as George Zimmerman is believed to have followed and later confronted the teenage victim. If correct, Zimmerman may have to rely on common-law self-defense. This will likely raise the question of whether use of deadly force was justifiable under the circumstances. According to Robbins v. State, “A person is justified in using deadly force in self-defense if he or she reasonably believes such force is necessary to protect one’s self from imminent death or great bodily harm; the circumstances must be such that the defendant had cause to think loss of life or serious injury is imminent.” (891 So.2d 1102)

The primary difference between common-law self-defense and “Stand Your Ground” is the matter of retreat. While “Stand Your Ground” abolished the duty to retreat, common-law self-defense requires one–outside of the home or curtilage–to retreat if possible, and if doing so will avoid the need to use deadly force. (Falco v. State, 407 So. 2d 203)

RESEARCH REFERENCES

Database/Content Category: Florida Hist. Legislative Service (FL-LEGIS-OLD) Search:  “deadly force” & da(2005) (1 doc)

Database/Content Category: Florida Cases (FL-CS) Search: SY,DI(“SELF-DEFENSE” /S “DEADLY FORCE” /S JUSTIF!) % (“NON-DEADLY FORCE” /S “SELF DEFENSE” “NOT JUSTIF!”) (22 Docs) Search: self-defense /s common-law (18 Docs)

Database: BLACKS

Search: curitilage

curtilage (k<<schwa>>r-t<<schwa>>-lij). (14c) The land or yard adjoining a house, usu. within an enclosure. • Under the Fourth Amendment, the curtilage is an area usu. protected from warrantless searches. — Also termed (in Latin) curtillium. See open-fields doctrine. Cf. messuage. [Cases: Searches and Seizures27.]

Super Tuesday is upon us, and this seems as good a time as any to reflect on the intersection of Ohio, the presidency, and the courts.  While a broad number of topics fall under this umbrella, I want to focus on one, William Howard Taft, a leading Ohioan of his day and the only judge to have previously held the title of U.S. President.

Taft became Chief Justice of the United States in 1921, and went on to write 256 Cases while in that position (a simple search for ju(taft) in the SCT database shows this).  Likely his most famous opinion was in Olmstead v. U.S., 277 U.S. 438, which held that the 4th amendment’s prohibition on warrantless searches did not extend to wiretaps (a holding later reversed in Katz v. U.S., 389 U.S. 347).  But I was surprised to find that Olmstead is not Taft’s most cited case.  That distinction (found by using WestlawNext’s ‘Most Cited’ sort filter) goes to Carroll v. U.S., another search and seizure case.  Unsurprisingly, given that the cases are from the 1920s, both cases involved the illegal transportation of intoxicating liquors.

Before he was the only President to go on to be a Judge, Taft was the only Judge who went on to become a President (Truman technically held the title Judge, but his position was not judicial in nature).  He wrote 199 opinions while on the 6th Circuit Court of Appeals (available by doing the same ju(taft) search in cta6).

During his second tenure on the bench, Chief Justice Taft was integral in the passage of the Court Judge’s Bill of 1925, 68 Cong. Ch. 229, 43 Stat. 936.  This bill was notable for creating the Certiorari process for the Supreme Court, which before then took mandatory appeals from circuits and states.  A critical view of this bill and Chief Justice Taft’s involvement can be found at 100 Colum. L. Rev. 1643.  This may be his most influential act from his time on the bench (though if any Taft scholars out there disagree, please share your thoughts in the comments).  So, to any aspiring Presidents dealt a cruel fate by Ohio today or in years to come, remember: retirement is only the beginning.

Other Research References

FYI: The Office of the Federal Register has historical election results including Electoral Votes by State dating back to 1789. The cited source is the Senate Manual. Taft took Ohio’s 23 electoral votes in 1908. 

Search results for ‘christmas’:

Patents:

U.S. Patent Applications, Granted Patents, and Patent Assignments Combined (US-PAT-COMB and US-PATPRE76): 20,943.

I used Thomson Innovation to Cluster roughly 1800 US granted patents and patent  applications where ‘christmas’ appeared in the title. Christmas tree stands and ‘holders’ dominate the category.  Light bulbs, lamps,  sockets and strings also make a strong showing.

Top US Classes: I also used Thomson Innovation to chart the Top 5 US Classes:

Grey Blue: 0470405 – Tree Trunk Supporting Base With Liquid Reservoir

Yellow: D111301 – Christmas Tree Stand

Red: 248524 – Plural means, vertically spaced

Lt Blue-Green: D11118

Purple: 362123

Other:

All State and Federal Cases (ALLCASES): 46,255

State and Federal Court Dockets (DOCK-ALL): 20,519

All State and Federal Court Filings and Briefs (BRIEF-ALL, FILING-ALL): 57,000

Judge Rakoff Rejects CitiGroup SEC Settlement

On November 28 2011, Judge Rakoff of the Southern District of New York, rejected a $285M settlement between Citigroup Global Markets, Inc. (Citigroup) and the Securities and Exchange Commission (SEC). This order intrigued me because of the strong sentiment expressed by Judge Rakoff in no uncertain terms. This order is available on Westlaw at 1:11CV07387 in the DOCK-NY-SDCT database.  The SEC has filed a notice of appeal from this order to the United States Court of Appeals for the Second Circuit. See below for more background on this case.

SEARCHING FOR MAVERICK

Judge Rakoff has often been referred to as a Maverick Justice (See rakoff /10 maverick in ALLNEWSPLUS for several such reference).  Does Judge Rakoff deserve this reputation?  To find out, I went into the database PROFILER-WLD and in the name field typed in Rakoff and selected New York in the state selector drop down. Once you click into the link for Judge Rakoff, you will notice that there are multiple Profiler References on the left side followed by various types of reports.

Judicial Reversal Reports: A Judicial Reversal Report analyzes a judge’s appellate record. When the subject of the report is a trial court judge, the report analyzes the judge’s record of reversals, affirmances, and other dispositions on appeal. When the subject of the report is an appellate judge, the report analyzes the judge’s record in deciding cases appealed from lower courts and the judge’s own record on appeal.

Given the Judge’s maverick reputation, I was most interested in the Judicial Reversal Reports and found that over two-thirds of Judge Rakoff’s opinions appear to have been affirmed on appeal.

Judicial Motion Reports: A Judicial Motion Report analyzes a judge’s motion history. Judicial Motion Reports are useful to learn about a judge’s record in disposing of motions. This information is helpful to plan case strategy and make more informed decisions. It can also help with managing client expectations. Reports can be sorted by motion type:

Sort by Motion Type

Or, sort by any other number of criterion including time before deciding on motion, role of the filing party, and result of motions:

Result of Motions

To determine whether one might properly lable Judge Rakoff, a ‘maverick,’ compare these reports with reports for other Southern District of New York Judges found in Profiler:

• Baer, Hon. Harold, District Judge
• Batts, Hon. Deborah A., District Judge
• Berman, Hon. Richard M., District Judge
• Buchwald, Hon. Naomi Reice, District Judge
• Castel, Hon. P. Kevin, District Judge
• Cedarbaum, Hon. Miriam Goldman, District Judge
• Cote, Hon. Denise L., District Judge
• Cott, Hon. James Lloyd, Magistrate Judge
• Crotty, Hon. Paul A., District Judge
• Daniels, Hon. George Benjamin, District Judge
• Dolinger, Hon. Michael H., Magistrate Judge
• Duffy, Hon. Kevin T., District Judge
• Ellis, Hon. Ronald L., Magistrate Judge
• Engelmayer, Hon. Paul A., District Judge
• Forrest, Hon. Katherine B., District Judge
• Fox, Hon. Kevin N., Magistrate Judge
• Francis, Hon. James C., Magistrate Judge
• Freeman, Hon. Debra Carol, Magistrate Judge
• Gardephe, Hon. Paul G., District Judge
• Goldberg, Hon. Martin R., Magistrate Judge
• Gorenstein, Hon. Gabriel W., Magistrate Judge
• Griesa, Hon. Thomas P., District Judge
• Hellerstein, Hon. Alvin K., Judge
• Holwell, Hon. Richard J., District Judge
• Jones, Hon. Barbara S., District Judge
• Kaplan, Hon. Lewis A., District Judge
• Katz, Hon. Theodore H., Magistrate Judge
• Keenan, Hon. John F., District Judge
• Koeltl, Hon. John G., District Judge
• Leisure, Hon. Peter Keeton, Senior District Judge
• Maas, Hon. Frank, Magistrate Judge
• Marrero, Hon. Victor, District Judge
• McKenna, Hon. Lawrence M., District Judge
• McMahon, Hon. Colleen, District Judge
• Oetken, Hon. James Paul, District Judge
• Owen, Hon. Richard, District Judge
• Patterson, Hon. Robert P., District Judge
• Pauley, Hon. William H., District Judge
• Peck, Hon. Andrew J., Magistrate Judge
• Pitman, Hon. Henry B., Magistrate Judge
• Preska, Hon. Loretta A., Chief Judge
• Rakoff, Hon. Jed S., District Judge
• Sand, Hon. Leonard B., District Judge
• Scheindlin, Hon. Shira A., Senior Judge
• Stanton, Hon. Louis L., District Judge
• Stein, Hon. Sidney H., District Judge
• Sullivan, Hon. Richard J., District Judge
• Swain, Hon. Laura Taylor, District Judge
• Sweet, Hon. Robert W., District Judge
• Wood, Hon. Kimba M., District Judge

OTHER AVAILABLE REPORTS

Litigation History Reports: Litigation History Reports for judges may include the following sections:

• Caseload shows the total number of litigated cases in which the judge has participated, based on docketed cases and case law.
• Case Types displays dockets and opinions by practice area.
• Parties lists the names of each party in the cases over which a judge has presided.
• Industries identifies industries associated with the companies that are parties to litigation. Click an industry to filter the report on that industry.
• Law Firms lists law firms involved in the cases over which a judge has presided.
• Attorneys displays the attorneys of record in proceedings before a judge. Click an attorney’s name to filter the report on that attorney.

Expert Challenge Report: Another type of report that is available is an Expert Challenge report which tracks challenges to an expert witness testimony. It provides the names and citations of cases in which the expert’s testimony was challenged; the result of the challenge; whether the expert was retained by the plaintiff or the defendant; the attorney for the party for whom the expert testified; the type of case; the jurisdiction; the judge who heard the expert’s testimony; and links to court documents relating to the expert’s testimony. Expert Challenge reports are available for both experts and judges.

Profiler References: Westlaw Profiler provides a direct link between a case, a jury verdict or settlement summary, or an article you are viewing and profiles of the attorneys, judges, and expert witnesses who appeared in the case or authored the article.

BACKGROUND

On October 19 2011, the SEC filed a suit accusing Citigroup of securities fraud. Simultaneously, Citigroup presented the Court a consent judgment whish stated that Citigroup consents to the entry of the Consent Judgment without admitting or denying the allegations of the complaint. The Court did not approve the Consent Judgment stating that, “it cannot approve it, because the Court has not been provided with any proven or admitted facts upon which to exercise even a modest degree of independent judgment.” See the Court order dated November 28, 2011 in the above linked docket. Court further expressed its disapproval of being used as a mere rubber stamping tool and stated that, “it is clear that before a court may employ its injunctive and contempt powers in support of an administrative settlement, it is required, even after giving substantial deference to the views of the administrative agency, to be satisfied that it is not being used as a tool to enforce an agreement that is unfair, unreasonable, inadequate, or in contravention of the public interest.” The Court further stated that, “[a]pplying these standards to the case in hand, the Court concludes, regretfully, that the proposed Consent Judgment is neither fair, nor reasonable, nor adequate, nor in the public interest… when a public agency asks a court to become its partner in enforcement by imposing wide-ranging injunctive remedies on a defendant, enforced by the formidable judicial power of contempt, the court, and the public, need some knowledge of what the underlying facts are: for otherwise, the court becomes a mere handmaiden to a settlement privately negotiated on the basis of unknown facts, while the public is deprived of ever knowing the truth in a matter of obvious public importance.”  Judge Rakoff went on to say that, “[a]n application of judicial power that does not rest on facts is worse than mindless, it is inherently dangerous. The injunctive power of the judiciary is not a free roving remedy to be invoked at the whim of a regulatory agency, even with the consent of the regulated.” I could go on quoting from Judge Rakoff’s opinion, each and every sentence in the opinion expresses the Court’s dissatisfaction with the process of such settlements and consent judgments. An opinion, in my opinion, certainly worth a read! In the last paragraph of the opinion, Judge Rakoff stated that, “[a]ccordingly, the Court refuses to approve the proposed Consent Judgment…and directs the parties to be ready to try this case on July 16, 2012.”

In an attempt to defend itself, the SEC Enforcement Director Robert Khuzami said in a statement that, “Judge Jed Rakoff made too much in a ruling Monday out of the fact that Citigroup was not required to admit any wrongful conduct in the deal… forcing Citigroup to give up its profits and the imposition of financial penalties and mandatory business reforms outweigh the absence of an admission.” See, 11/29/11 APLALERTNY 02:00:05. Following Judge Rakoff’s opinion, SEC Chairperson Mary Shapiro “sent a letter to a senator asking for Congress to expand the agency’s authority to fine companies and individuals. She is seeking to raise the limits on fines under current law and make other changes.” See 11/29/11 APALERTLEGAL 03:47:50. Given the current economic times, the global financial melt downs, the Wall Street Protests and now judicial expression of discontent on behalf of the public, it will be interesting to see how the legal processes and regulations alter and adapt to alleviate the current levels of dissatisfaction with the financial industry and its regulation.

Westlaw Reference Attorneys are outlining strategies for some of our customer’s most common and challenging research tasks. Bill Josten just completed, Statutes of Limitation Research Strategies (pdf):

The first point that can cause hours of frustration is that, while there may be some exceptions, codified statutes will rarely refer to a Statute of Limitations in a chapter heading, a title, or a statute caption. More commonly, the relevant statutes will be grouped under headings like Limitation of Action, Time for Filing of Action, or even Proscription of Action. In New York, the relevant statutes are in the Civil Practice Law and Rules in an article entitled Limitations of Time. In California, they come under the Code of Civil Procedure in a title called Of the Time of Commencing Civil Actions. In these circumstances, browsing the Table of Contents may prove to be more of a hindrance than a help.

Upcoming documents will cover pre-trial discovery disputes, prior art challenges, and elements of uncommon actions.  Of course, we welcome your input.  If there’s a topic you’d like covered, let us know.

The recent storm that  announced the official start of winter here in Minnesota (home of the Reference Attorneys), means it’s time to start preparing for the inevitable slip-sliding slow commute and the fear that you may find yourself in a ditch if you’re not careful.  Minnesota received its first appreciable snowfall of the season just in the last few weeks; yes East Coasters, you beat us to it.  A sampling of the news coverage from the Duluth News Tribune:

The Minnesota State Patrol reported 200 crashes on highways statewide between noon and 2:45 p.m. Saturday. There were 25 injury accidents, but no serious injuries or fatalities.

2011 WLNR 24077968

I ran a few quick searches on WestlawNext, and at least based on the appellate case, it looks like you may be more likely to see a ticket for reckless or careless driving that for something more mundane like failure to yield or stop.

I ran both of the following queries in Minnesota and related Federal materials.

negligen! careless reckless /5 driv! operat! /p slick slippery icy wet snow! /5 road street pavement highway freeway ramp intersection

fail! /10 stop yield /p slick slippery icy wet snow! /5 road street pavement highway freeway ramp intersection

The first result brings me back 69 cases.  The second, only 11.

Interestingly, though, “evidence of skidding on a slippery road, standing alone, is not enough to establish negligence.”  Svercl v. Jamison, 252 Minn. 8, 9, 88 N.W.2d 839, 841 (1958).  The court went on to explain:

To hold otherwise would be to apply the doctrine of res ipsa loquitur in a class of cases where it obviously does not belong. However, in many of the cases of this type, the manner of driving prior to skidding and the control of the car both before and after skidding present a situation where an inference of negligence is permissible. Here, defendant was aware of the fact that there were icy spots on the road and in particular around these curves. He had encountered such ice on the trip to Grand Rapids. He found ice on the curves that he previously had been able to negotiate.

The court concluded:

While evidence of skidding alone is not enough to establish negligence, evidence of speed, the care exercised in controlling the car, knowledge of existing dangerous conditions, and the failure to futher reduce speed under these conditions usually present facts from which a jury can justifiably draw an inference that defendant failed to exercise that degree of care required of him under the existing circumstances. In this case, we cannot say as a matter of law that defendant, having knowledge of the icy conditions then existing, should not have anticipated that he would be likely to slide off the road if he failed to further reduce his speed.

Id.

So it turns out that a slippery road may be enough to relieve liability, but the facts are going to have to break your way.

In fact, you may be better off facing reckless or careless driving because, according to Riley v. Lake, 1972, 295 Minn. 43, 203 N.W.2d 331, failure to yield the right-of-way is prima facie evidence of negligence under Minn. Stat. 169.96.

But in any event, you’re probably best off slowing down when the flakes start to fly.

This week signaled the start of the 17th Conference of the Parties of the United Nations Framework Convention on Climate Change (UNFCCC) in Durban, South Africa.  Delegates are gathered from around the globe to negotiate various climate change issues, including the looming expiration of the first commitment period of the Kyoto Protocol.  A summary and the full text of the protocol can be found at 1998 WL 119702.

Under the original agreement, Annex I parties, or “developed” countries, made a commitment to reduce their greenhouse gas emissions between the years 2008 and 2012.  Signatories identified as “developing” nations, such as China, Indonesia, India and Mexico, were exempt from the protocol’s binding commitments to reduce greenhouse gas emissions, but had the opportunity to voluntarily reduce emissions in exchange for credits that could be sold to other countries to off-set their non-compliance.  The goal was to reduce overall global greenhouse gas emissions by 5% by the end of 2012.

According to then President Clinton, the United States has never ratified the protocol, because “the United States will not assume binding obligations unless key developing nations meaningfully participate in this effort.” 143 Cong. Rec. S11019-02, 1997 WL 660180 .  You can find Presidential statements like this by searching materials like the Congressional Record (CR), Presidential documents (PRES) or the Executive Orders on Westlaw or WestlawNext. Also check out Daily Presidential Documents (PRES-DAILY) – for documents released by the White House Office of Communications.

Original Annex I parties such as Canada, Japan, and Russia have already announced their unwillingness to sign-on for a second commitment period.  So what does that mean for the future of Kyoto if the world’s highest producers of greenhouse gases are not subject to the treaty?

Some would argue that it makes a second commitment period largely meaningless.  Others would say that countries that have been doing their part, signatories and non-signatories alike, will carry on without a second commitment.  The EU is strongly encouraging a second commitment, but wants stronger reductions and mandatory participation across the board.

Other References:

Want to be alerted on new developments?  Set up an alert on Westlaw.com

Database: RALLNEWSPLUS

Suggested Search: “kyoto protocol” & renew! exten! second /5 commitment

Also, UK news outlets like The Guardian provide frequent updates on Conference developments.

On WestlawNext, run the following plain language search in News:

second commitment period for +”kyoto protocol” and sort by date. Note that the plus symbol ensures the phrase “kyoto protocol” will be included in your results.

You can also follow all of the action on the UNFCC’s website.

According to an article in the New York Times (2011 WLNR 13207962), on September 28, Judge Sharon Lovelace Blackburn of the Northern District of Alabama upheld significant portions of a controversial immigration law passed by the Alabama legislature this year.  Although Alabama is not the only state to pass such legislation in the last few years—Georgia, South Carolina, Utah and most notably Arizona have shared the limelight as states where harsh immigration laws have been passed—its law has been described as the most extreme so far. See AL LEGIS 2011-535.

Among the more objectionable aspects of Alabama’s law are its requirements that schools and businesses partake in the policing of illegal immigrants.  For example, public schools are required to determine the immigration status of their students as well as that of their families and report this information to the state.  And businesses that knowingly hire illegal immigrants now will operate under the threat of losing their licenses.  The law also makes it a crime to help an illegal immigrant—which puts churches and other charitable institutions at risk. 

The law has many supporters, to be sure, but its opponents have vociferously challenged the constitutionality of the law’s provisions.  The Justice Department filed a suit to enjoin enforcement of the law (11-cv-02746).  The American Civil Liberties Union sued Alabama declaring the new immigration law unconstitutional (11-cv-02484).  Because of the law’s effect on Good Samaritans, a group of four religious leaders, including an Episcopal bishop, a Methodist bishop and a Roman Catholic archbishop and bishop, has filed yet another suit to block the law (11-cv-2736).

The judge’s ruling is by no means the final say on this issue.  Many of the civil rights groups and other plaintiffs are already preparing their appeals of this decision.  What have other courts been saying on this issue?  I did this search in ALLFEDS on Westlaw and got 1390 results:

  SY,DI,PR,HG,BG(“BEASON-HAMMON ALABAMA TAXPAYER AND CITIZEN PROTECTION ACT” IMMIGRAT! & PRE-EMPT! CONSTITUTIONAL!) & da(last 3 years)

As you can imagine, this is quite a hot topic in the news as well.  Try the following search in Major Newspapers (NPMJ):

IMMIGRAT! /5 LAW RULE STATUTE REGULATION /P CONSTITUTIONAL! PRE-EMPT!

To see a list of filings related to this issue in Alabama courts, do the following search in AL-FILING-ALL:

(immigrat! & constitutional! pre-empt! & da(last 2 years) )

WestlawNext also brings up all of these same materials—just select Alabama state and federal as your jurisdiction (You can do the same in News) and type the following:

constitutionality of Alabama immigration law

Change the “sort by” box from relevancy to date and the newest decisions will appear first.

According to the Daily Telegraph (2011 WL 18762019), several Italian scientists are on trial for manslaughter after they failed to predict and warn townspeople of a 6.3 magnitude earthquake that killed more than 300 people in 2009. The scientists worked for the government’s Great Risks Commission, which evaluates the likelihood for natural disasters. The commission met at the request of residents of l’Aquila, Italy, to discuss whether multiple small tremors meant the town should prepare for a large quake. The commission concluded that a large quake was unlikely. Six days later, the earthquake hit, killing hundreds and causing millions of dollars in property damage. Scientists the world over are up in arms regarding the possibility that scientists could be held liable, criminally and civilly, for not correctly predicting natural disasters.

How have U.S. courts handled similar claims against scientists? To find out, I expanded my inquiry to other forces of nature like the weather.  I ran the following search in All State & Federal on WestlawNext or ALLCASES on Westlaw:

fail! /4 predict! warn! noti! +10 earthquake storm “natural disaster” volcan!

There were no criminal cases to be found against scientists. However, plaintiffs have been trying to sue the United States National Weather Service (NWS) for decades. (Try, ptn(“national weather service”) in dockets content.) If you are wondering about your chances of success in suing the local t.v. weatherman for not predicting a storm that ruined your wedding, check out the following law review article for a discussion of the duty of care owed by meteorologists: 66 TXLR 683. Cases are typically dismissed under sovereign immunity due to the discretionary nature of the NWS functions, whether brought under the Federal Tort Claims act or common-law tort. The courts held that NWS did have a duty of care but as a government entity, they have immunity.

In a 1999 wrongful death action (4:99-cv-10059), plaintiffs alleged the NWS kept a forecasting center closed following Hurricane Andrew in violation of the Weather Service Modernization Act (Act can be found at 15 USCA 315, PL 102-567).  Even so, the court dismissed the NWS citing the Admiralty Act (formerly, 46 USC App 741-752) as well as Brandt v. Weather Channel, Inc., 42 F. Supp. 2d 1344.

The Law.com article on the Italy case notes:

Prosecutors also point to an unfortunate pre-earthquake interview in which Bernardo De Bernardinis, then-vice chief of the technical department of Italy’s civil protection agency, was asked whether residents should just sit back and relax with a glass of wine. “Absolutely, absolutely a Montepulciano doc,” he responded, referring to a high-end red.

Still, it’s “an inherently unpredictable phenomena,” said Rick Aster  on NPR.  Mr. Aster is president of the Seismological Society of America. He and his colleagues petitioned to have the charges dropped.

OTHER REFERENCES

The Texas Law Review Article reference above is cited by The Tort of Giving Negligent Investment Adivce  by Seth E. Lipner and Lisa A. Catalano. Footnote 82 in 39 UMPSLR 663 notes that the Restatement 2d of Torts sec 552 “has spawned a variety of law review articles about its application to various businesses and professions…” Check out the footnote for that list of articles.