This is not for the first time when careless cruise members have
risked the life of the passengers. Recently in the first week of May, passengers
faced a massive accident on the Staten Island Ferry. The ferry collided into a
dock and thereby caused a shudder through the entire ship. This accident badly
injured 30 passengers of the ferry. The nearby authorities after rescuing the
injured passengers hurried them to the hospital for treatment.
Among the injured passengers, a forty year old construction worker
named Flavio Silva also got severe injuries that may further cause him pain for
the rest of his life has claimed personal injury compensation. Silva has also
complained that these sustaining injuries will also hamper his ability for
working in the future. He filed a personal injury lawsuit against the city for
$5 million.
But it is quite surprising fact that he was the only person to
file a lawsuit for the incurred injury. Others have not lodged any complaint. A
similar incident took place in the year 2003, when the same ship faced an
accident due to the carelessness of the crew members, in the same manner.
Well is there any answer to such a mishap? Is it really a
coincidence or a simple tale of negligence? Responsible authorities are still
confused. How can a ship endanger so many lives only due to carelessness? Why was
the machinery not properly observed before engine failure and mechanical
malfunction? Despite abiding by rules and regulations, the ferries and cruise
continue to neglect their duties.
Observations, clarifications, and arguments cannot bring back the
lost lives. Merely imposing laws on cruise and vessels is also not a solution
to personal injuries and fatal accidents. If each one of the responsible people
becomes more alert - even the passengers, then definitely there will be a
solution and nothing is more precious than life.
This USSC really needs a huge round of applause for its
recent ruling that the juveniles behind bars will not be sentenced to life
imprisonment because of committing any non-homicide crime.
Such a decision was taken by the Supreme Court in the case of
Graham vs. Florida, where the Court found that the laws of eight states are
very strict and contravene the Eighth Amendment’s Ban on “cruel and unusual”
punishments without parole.
During the court proceedings it was found that Florida Law
violated the Eighth Amendment. It has been found that the state was not
guarantying any eventual release to the offender. The law has been so harsh
that it was not even providing any realistic opportunity to procure any scope
of release before the end of life sentence term.
Though there have been much argument and opposition against
this ruling. Some justices have even defined it as a huge mistake of the
Supreme Court.
Whether such a ruling can really do any good to society or
the convict is still unanswered. Such a decision is likely to have further
implications. They will confuse the lawyers and lower courts to find out when
and whether further acute prison provisions are constitutionally challenging.
How far such dubious provenances are helpful in creating a fair judgment system
is still doubtful according to the legal experts. But still it’s a sigh of
relief to the juveniles behind bars. Isn’t it?
New York State is forming strict legislation that will protect the
parental rights in the rehabilitation of neglectful parents. This legislation,
Bill A8524/S03868, will facilitate those children who are in the waiting list
of adoption. Most of the children in the foster care system have little prospect
of being adopted. They often have no option to return to safe and loving
families.
According to one of the surveys it has been reported that there
are more than 8000 children in New York waiting for adoption since 2006. Such
children are often from low income or minority household backgrounds. Among
such destitute children mostly are grown up ones or ones with special needs who
have been living in foster homes for years, even according to the statistical
records on an average each child has to wait 38 months after termination of
their parents’ parental rights.
The children at foster homes keep up relationships with the
caretaking person and presume him/her to be the legal parent. Some children,
after becoming adults (18 years old), return back to their birth parents. However
there remains a gap that needs to be bridged between the children with
terminated parental rights and an adult. Foster care can never be a solution to
any child. This new legislation as introduced by New York state will be an aid
to rehabilitated parents to regain their parental rights in the child’s
interest. The other provisions of this new legislation rules that parents can
only regain or restore their parental rights if they are actually in the
condition to bring up the child and provide him the lost family love, care and
safe home. These provisions are safeguarded to restoration under this law.
Most of the time the parent’s rights are terminated when the
parents are accused of abuse and negligence. To terminate the parental rights a
child’s consent and the involvement of a Child Protection agency is very
important.
But despite of this admirable reform, can one destitute child
assure him/herself with permanent future security? . Is this new legislation really
an ultimate solution? The move by the government in such a direction should be
in the preliminary stage of such disputes. Rather than terminating the parental
rights it should take care to curtail the reasons for termination. The reasons
may be the parents are ignorant, negligent, abusive, domestic violence, etc.,
but often the real problem roots from poverty. Parents who cannot afford proper
child care in the form of education, housing, and medical aid often opt for
foster care.
Many governmental organizations and NGOs are addressing such a
sadistic socioeconomic disparity, but services are limited and insufficient.
For an appropriate child welfare system more preventive services and supporting
services should come forward and help the families at risk. Merely focusing on
resources or wasting time and money on administrative cost for the termination
of parental rights and again overturning them is really a very childish.
Family friendly schemes should be adopted to support poor or
unemployed families. Though this new legislation is going to support them but
why after the termination of parental rights?
In one of its most recent rulings the
Supreme Court has ordered that Congress can intervene in the decision of the imprisonment
of sexually dangerous inmates and after this Congress can also address laws
against such predators. Congress can make decisions in holding back such
prisoners for an indefinite period.
The Supreme Court arrived at this
decision by a 7-2 vote. The Supreme Court also found that Congress has not
exceeded its powers since 2006.
Yet despite this, the ruling is facing
great controversy. First of all this decision has reversed a lower court
decision where it allowed imprisonment to the predators for a specific time
period. Now it (Lower Court) said that Congress violated its order of definite period
sentenced to a sexually dangerous prisoner. The state laws have opposed such a
decision as they find it against the provisions of equal protection or the due
process right of prisoners. The state law violates the constitution by treating
sexual offenders differently from the rest of the prisoners.
Opposing authorities have found that
this law has lessened the significance of Jessica’s Law which was also based on
the similar topic. Before the enforcement of Jessica’s Law in California the
violent predators were kept in prison for a period of two or beyond two years
if prosecutors succeeded to prove to the jury an existing danger from the
sexual offender.
However the Supreme Court has argued
to all this controversy that Congress has been involved with an eye to save the
society from them. Such criminals are serious patients of mental illness and
should be under severe security measures. This provision is not challenging any
law based to secure children and oppose child pornography.
Online gambling is a fast replicating form of online business.
Cyber experts declare online gambling as one of the most effective factor for
the popularity of e-commerce. But despite of this popularity US is facing much
controversy due to legitimacy of online gambling.
The US justice department addresses online gambling along with its
advertisement as an illegal activity of the internet world. One of the recent
rulings of the WTO (World Trade Organization) has over ruled the decision given
for internet gambling accessibility in US market. Antigua, a Caribbean country,
has recently put forth allegations that the US is not allowing its online
operators to enter in the US internet market for gambling purposes though it
possesses a WTO recognized gambling license.
The US government has argued in context to this allegation that it
has never allowed liberalization in services to include gambling and regardless
of the fact that the WTO also claims to limit trade in order to protect public
morals or to maintain public orders.
This difference in interpretation has involved much controversy on
the legality of internet gambling. It has been virtually impossible for US
regulators to impose a prohibition entirely on internet gambling as it is legally
accepted in other countries and major gambling sites are from these countries.
But how can the US alone enforce prohibitions on internet gambling
when it is not thoroughly enforced in the US?
On the urge of the Obama Administration, the US Supreme Court is investigating
whether Federal Law preempted the
Arizona law that penalizes employers who appoint unauthorized immigrants.
The views of the Office of Solicitor General were also invited by
the Court. One of the most controversial cases in the US Business community,
and drew mass attention, when Elena Kagan was speculated to be one of the most
leading contenders for filling the Supreme Court’s vacancy. All eyes are on the Government’s response that
whether it would agree with Arizona’s authorized Law to arrest the illegally
employed immigrants.
The Acting Solicitor General Neal Katyal addressed this court
invitation and advised justices to look for the court case Chamber of Commerce
of the United States v. Candelaria, before arriving at any decision on such an authorization prevalent to
Arizona’s law.
As the 9th
Circuit of the US Court of Appeals ruling in the year 2009, upholds the
controversial State law, it has raised several questions for the justices of the
Supreme Court. The Chamber of Commerce has put several questions in front of
the justices that
1.Whether the Federal Immigration Reform and
Control Act validates the sanction by Arizona on employers to engage unauthorized
illegal immigrants;
2.Does Federal law obstruct the voluntary
system of all employers to participate in the Federal electronic employment
verification system;
3.Whether the law obstructs because it undermines
the ‘comprehensive scheme’ of Congress for regulation of immigrants’
employment.
However the state and
localities across the nation are enacting statutes and ordinances that regulate
the employment of illegal workers. The Solicitor General says that employers
uphold with careful balance that Congress introduced 25 years ago between two
interests of major significance: employers do not hire illegal immigrants
undermining the immigration laws and employers do not create any racial or
ethnic discrimination among the minorities legally residing in the country.
However the other two remaining questions are still unanswered.
Well this saying has indeed
become true in case of JP Morgan. Last week, JP Morgan Chase & Co. was sued by the famous the Lehman Brothers Holdings. Lehman Brothers,
as it is known, was one of the 2nd biggest financial institutions in
New York and filed bankruptcy due to its drastic financial crisis in the year
2008, when the economy faced a recession.
Lehman accused JP Morgan of taking
advantage of Lehman in its financial downturn. Lehman imposed the charge of the
illegal siphoning of billions of dollars from importantly needed assets before
filing bankruptcy.
JPMorgan has been Lehman’s short
term lender and used to serve as a middleman to investors and Lehman. Later on
JPMorgan misused the inside information of Lehman and pressured the brokerage
firm to turn over $8.6 billion in collateral in September 2008. Moreover
JPMorgan Group was also aware that Lehman owes to Lehman estate and creditors.
This lawsuit against JPMorgan has
been filed in Manhattan’s US Bankruptcy Court for the Southern District. When the
officials of JPMorgan came to know about the weak financial condition of
Lehman, they started insisting for a one sided agreement with $8.6 billion as
collateral security. Later on, JPMorgan denied returning any amount of
collateral when asked by Lehman before bankruptcy filing. In shortage of
alternatives and initiatives Lehman went for Chapter 11 Bankruptcy protection.
But now Lehman is much relieved
as the law now arranges to return its illegally acquired Estate and its
creditors billions of dollars. Moreover JPMorgan has to compensate for the
damages due to its misconduct.
Really it’s a good move by the Government
to increase regulations and minimize over sightedness after the collapse of
giant financial firms such as Lehman Brothers. A new bill named Restoring
American Financial Stability Act 2010 has been passed by the US Senate to focus
more on the difficulties arising in the economic crisis. This bill will also
monitor all the major financial transactions and will also supervise them in
any arising financial crisis.
So
it has been a big lesson for JP Morgan Chase & Co, who was once famous for
their honest reputation. But mistakes always pay off and above all you cannot
deceive the law.
The
Minnesota Supreme Court has made it clear that discrimination in any form is
not an attack on the marital status of any individual. Recently while dealing
with a case of Taylor vs. LSI Corporation, the Minnesota Supreme Court
addressed that marital status discrimination is not an attack on the institution
of marriage. The Minnesota Supreme Court ruling also clarified the 1988
amendment to the Minnesota Human Rights Act which provided protection against
discrimination based on marital status to state law.
The
Taylor couple was employed in LSI Corporation of America, where due to some
reasons the husband was terminated. Later the wife appealed in the Hennepin County
District Court that she was also asked to resign as her husband was no more in
the company. However the company has denied that the wife was asked to resign
because of her husband’s termination, rather she was terminated due to some
cost cutting measures and work load of the company.
Hennepin
County District Court dismissed the plaintiff’s case as she had no evidence
against the employer’s action. The Court of Appeals also said that no proof was
required.
The
attorneys representing both employee and employer readily agree with the
Minnesota Court of Appeals, that this ruling will definitely clear the
confusion of several courts.
It
is quite obvious that the intent of the Court of Appeals is clear and
unambiguous. The 1988 amendment to the Minnesota Human Rights Act provides
protection on the basis of identity, situation, actions, or belief of present
or former spouse.
But
any court that is based on workplace discrimination due to identity, situation
or action can be appealed to for justice.
Think
before you utter a single word in this politically charged atmosphere of the
United States. An unusual but interesting incident recently took place in
Alabama, which took the limelight in media.
Recently
a school teacher in Alabama while teaching geometry to the students made a
great misuse of words. His words have now become severe on his own career.
While teaching parallel lines and angles in geometry class the math’s teacher cited
an example to make the students better understand the lesson. He asked the
students to choose a suitable angle for
assassinating President Obama.
Though
his words were not intentional but he was subjected to an investigation
conducted by the responsible authorities. The investigating agency found no
credible threats or records related with the cited example and therefore have
closed their investigation.
The
school authority has also taken a mild approach towards the teacher’s conduct
after investigation and also shown grievance for such a drastic fault. They initially
confirmed that the teacher will not be terminated from his job and the school
will call a necessary discussion with the teacher, but later on due to protest
of the public, the teacher was suspended.
His
arrest has put several question marks on the teacher’s right, tenure and job
performances. A teacher struggles to make the lessons relevant and interesting
for students to understand, but should take care of any misjudged humor or
comment on political issues.
The law has always set examples by judging the drastic mistake of some
and giving warning to others not to repeat them. Thus being a teacher it’s a
responsibility to become much more sincere with words, as words are always
sensitive.
The
Supreme Court recently ruled that a plaintiff with a disability or other
benefit under ERISA is subjected to some degree of success on the merits. This
will help the plaintiff to win attorney fees and other costs of legal
proceedings. The Supreme Court took this decision when such a case was brought
to it.
Bridget
Hardt, receiving long term disability benefit due to a job related injury known
as Carpal Tunnel Syndrome, brought this case to the Supreme Court against Reliance Standard Life Insurance Co. According to the insurance
company she was no longer eligible to receive long term benefits. Thus she sued
the insurance for violation of the rule under ERISA.
Initially
the case was brought to the district court, where the court ordered Reliance to
revise its decisions and submit within 30 days as they were against the
evidences provided by her. If the insurance company fails to do so the decision
will be in her favor.
On
reconsideration, the insurance company reinstated the full benefits to Hardt.
She also demanded for attorney fees and costs but Reliance interrupted that she
was not the “prevailing party” as they have entertained all her demands in the form
of benefits.
But
the Supreme Court attorney who argued that ERISA's fee-award provision does not
bear the word “prevailing party”. He said that ERISA expressly grants the
district court ‘discretion’ to award either of the parties with attorney fees.
To get attorney fees as an award the fees
claimant must show some degree of success on merits. Success can be in the form
of a trial or a procedural victory
According to the US Supreme Court
orders, attorneys will only be awarded an increase in fee structure after they
perform stupendously in the extraordinary circumstances of quality court cases.
The fee structure will be entirely dependent on lodestar calculations.
This has created an argument
among the attorneys as they have already shown their acceptance for such a
court rule. They still bear the doubt how a lodestar calculation can judge the
percentage of performance and on what basis will the exact evaluation take
place. Thus the factors considered for lodestar calculations are not sufficient
grounds for proving specificity that an enhanced fee structure is justified.
The district has not given any approval
for such application, the attorneys as well as the judges remand for further
proceedings consistent with this opinion.
Now the lodestar calculation is a
system used by the courts to award attorney’s fees and is a product of
reasonable hourly rates and number of reasonable hours worked. One such example
of attorney fee award took place after the settlement of a case where the class
action suit was filed on behalf of 3000 children in a Georgia foster care
system which requested more than $14 million in attorney fees. This calculation
was half done on the lodestar and the other half as result of superior
performance under extraordinary circumstances.
Texas has gained popularity
recently after heated debate on same sex union among the states in the US for
not giving recognition to same sex marriages, after the Texas voters approved a
state constitutional amendment to ban same sex marriages in 2005. Another
aspect of this permission has evolved in front of the Texas legislature that there
are numerous marriage dissolution appeals from same sex couples from the other
states of the US.
Same sex couples after getting
married in other states are now filing for divorce in Texas but are not getting
the permission for divorce.
Such issue gained attention when
two men from Dallas after getting married in Massachusetts in the year 2006
appealed for divorce in the Texas State Court. State attorneys have decided to
argue in the 5th court of appeal.
This case has gained fame as to
be the first such case which will be projected to the high court to the Supreme
Court before a precedent setting rule is delivered. Such an issue will be noted
as the most decisive civil right initiative in the arriving decades and the
Texas government will have a great wrestle.
According to the judgment of the
state district judge of Dallas, the gay marriage ban violates the US
constitution’s rule of equal protection law.
Now the question arises that if
there is no recognition to same sex marriage relationship then how can the
Texas court recommend for divorce related to such an issue. To the law such recognition
would not legally exist.
It is quite surprising that the government of many states in
its budget policy has started to make cost effective measures to overcome
budget problems. They have taken the initiative to cut down the cost of prison
programs for alcohol and drug offenders.
The State of Texas has the 2nd largest prison
system in the country, where prison treatment programs are slashed up to more
than $23 million as considered by state officials. They would cut treatment
programs for drug users, drunken drivers and sex offenders. Expenses would be
reduced by $250 million from prisoner rehabilitation.
Other states like Kansas and Pennsylvania have also started
to reduce the prison treatment programs. The prisoner receiving parole will not
be given free drug treatments; instead they will stay as offenders serving
their sentences without treatment.
In one of the studies conducted by the National Center on
Addiction and Substances Abuse at Columbia University only 11% of the country’s
prisoners with alcohol and drug abuse problems are treated during the
incarceration phase.
This Budget program is forcing many of its prison systems to
stop and cut treatment programs for the drug users, sex offenders and drunken
drivers.
Well, to all this the critics of drug treatment programs say
that this will result in a higher recidivism rate along with higher prison
costs. Also they find it more difficult for the prison inmates to develop
release plans and probability of reoffending will increase.
The question that now arises is if such an inhuman decision
can permanently fix problems of the prison budget system or be a root to many
other bigger problems. Think on it.
Patent and trademark are the two supporting
pillars that legally protect your business from infringement by means of
intellectual property law. Patent is the exclusive right provided to protect your articles,
processes, machines and invention, whereas trademark is protection given to your generic designs and marks
which distinguish your products and services from others. The industry of
patent and trademark has hogged the limelight in the past few decades and most
of them have caught legal attention. A few major examples can be given.
Apple Corps owned by The Beatles and the computer
manufacturer Apple Inc. have been fighting with each other since 1978 over
trademark rights. From 1978 to 2007 Apple Corps has sued Apple Inc. for a
number of times. When Apple Corps sued Apple Inc. for the first time in 1978
for trademark infringement, Apple Computer had to pay around $80,000 and both
of them settled on the fact that nobody will enter into each other’s business.
Apple Corps was approved the right to use the title on any “creative works
whose principal content is music” and on the other hand Apple Inc. was approved
the right to use the title on “goods or services...used to reproduce, run, play
or otherwise deliver such content”. But still Apple Corps sued Apple Computer
several times after that for breach of contract and other issues when Apple Inc.
included MIDI and audio-recording facilities to its computers, when Apple Inc.
launched iTunes Music Store etc. At the end of 2006 the case went in favor of
Apple Inc. and the court ordered Apple Corps to pay Apple Inc. around £2
million for the legal costs. In 2007 the case was settled where Apple Inc.
gained all the rights to the trademarks related to “Apple”.
A case of patent infringement was filed recently by Encyclopedia
Britannica against DicksteinShapiroas he mishandled several technology patents. EB also sued several GPS
manufactures for more than $250 million. Another patent case was filed by Canadian
company i4i against Microsoft who was asked to stop selling its word processing
software. I4i claimed that its patent "prohibits Microsoft from selling…. any
Microsoft Word products that have the capability of opening .XML, .DOCX or DOCM
files (XML files) containing custom XML" and the on this the court found
that “Microsoft had wilfully infringed i4i's U.S. Patent No. 5,787,449."
So the case went in favor of i4i and Microsoft had to lose the appeal in that
$290 million patent case.
If you have any patent or trademark
issues, be sure to stand up for your legal rights by researching patent and
trademark information or by searching for an attorney right here on Law and
Legal Care.
Veterans, people who have served in
combat, are deemed to be one of the most respected classes of United States for
the sacrifices they made for the country or the avant-garde responsibilities
they carried out during their service. Even President Abraham Lincoln
necessitated good treatment for this respected community back in 1865: “to care
for him who shall have borne the battle, and for his widow, and his orphan”.
Imagine that class having problems
in getting compensation for their claims from the Department of Veterans
Affairs as the department is taking more than an average time to process their
claims as reported by two veterans associations, Vietnam Veterans of America
and Veterans of Modern Warfare. A major part of these claims are for disability
benefits for any service-related injury or disease and it is informative that around
3 million veterans are getting disability benefits at present from Veteran
Affairs alone.
Issues regarding the number of
pending claims and their processing time perhaps reached its highest extent in
2005 that the concern was raised by the Government Accountability Office. But
Congress took some major steps to get hold of the situation by 2007 and it
hired 3100 more employees in the Department of Veteran Affairs for the
processing of disability claims. Congress also decided that the claims having
appropriate evidence should be adjudicated within 90 days.
Here is how you should seek for
disability benefits. You must file a claim with the Veteran Affairs at your
local office. By law, the Department of Veteran Affairs is obliged to assist
and support the veterans in gathering evidence for their claims. Your claim is
appraised by a “rating specialist” from the DVA based on your evidences who
will decide your eligibility for the claim and the amount of compensation you
are entitled to. Now, if you are not satisfied with the decision you may challenge
it and your case can go from a “senior rating specialist” to the Board of
Veterans’ Appeals, to the U.S. Court of Appeals for Veteran Claims (CAVC), to
the U.S. Court of Appeals for the Federal Circuit, and finally to the United
States Supreme Court for review.
