THIS article tells of a New York court that upheld a 13 year old’s right to not visit his father but that also held the father should not have to pay child support.
Tom Appeals Blog
News and Observations About Law and Society
"As long as I have any choice, I will stay only in a country where political liberty, toleration, and equality of all citizens before the law are the rule." - Albert Einstein
Today marks the fifth continuing legal education presentation I’ve been part of making over the past eight months – and the fifth distinct topic I’ve addressed.
Prior presentations addressed minimum wage and overtime liability to employees classified as volunteers and unpaid interns; the economic loss rule in Florida; ethics and professionalism consideration in the use of cloud computing by lawyers; and a look inside Florida’s Fifth District Court of Appeal.
Today’s presentation is part of the Orange County Bar Association Appellate Practice Committee’s seminar about “Advanced Legal Writing in a Paperless, Digital Age.” I will be demonstrating the use of freely available legal resources in legal papers through hyperlinks. Officially, the presentation is called “Hyper and (Mostly) Free: Useful Electronic Tools for Persuasive Writing.”
Law enforcement officers now have wider latitude in conducting searches on the basis of anonymous tips. Navarette v. California, No. 12–9490 (April 22, 2014) divided the U.S. Supreme Court’s two most conservative justices, while the majority opinion was joined by one of the Court’s liberals, Justice Breyer. Justice Thomas wrote the majority opinion, and Justice Scalia wrote the dissent. NPR wrote about the Court’s decision HERE.
One year ago this month, my article titled Ruminations on the Relationship Between the Economic Loss Rule and Claims for Breach of Fiduciary Duty appeared in The Florida Bar Journal. The article discussed conflicting decisions among the Florida District Courts of Appeal on the question of whether the legal doctrine known as the economic loss rule bars common law claims for breach of fiduciary duty when the parties’ relationship is embodied both in a contract and in a relationship giving rise to a fiduciary duty. Fiduciary duties are the highest duties known in law and arise in certain relationships, such as that between a trustee and the beneficiary of a trust, among others.
Today, the Supreme Court of Florida effectively resolved that conflict through a sweeping 5-2 opinion that limits application of the economic loss rule to products liability cases. The court made the pronouncement in Tiara Condominium Association, Inc. v. Marsh & McLennan Companies, Inc., No. SC10-1022. The opinion is available HERE.
Tiara began in federal court but reached the Supreme Court of Florida after the U.S. Court of Appeals for the Eleventh Circuit certified the following question: “Does the economic loss rule bar an insured’s suit against an insurance broker where the parties are in contractual privity with one another and the damages sought are solely for economic losses?”
The Supreme Court of Florida rephrased the Eleventh Circuit’s question because it assumed the continuing applicability of the economic loss rule to cases involving contractual relationships. The rephrased question was: “Does the economic loss rule bar an insured’s suit against an insurance broker where the parties are in contractual privity with one another and the damages sought are solely for economic losses?”
Ultimately, the court answered the rephrased question negatively, concluding it unnecessary “to decide whether the economic loss rule exception for professionals applies to insurance brokers” because “application of the economic loss rule is limited to products liability cases.”
Now the case returns to the federal appeals court, which will render judgment in accordance with Florida law as announced by the Supreme Court of Florida.
Thomas Wade Young was recently honored with the opportunity to speak to members of the Central Florida Compensation & Benefits Association regarding the Patient Protection and Affordable Care Act (PPACA) – the law pejoratively or affectionately, depending on one’s viewpoint, as “Obamacare.” The talk was entitled PPACA & SCOTUS: It’s Constitutional. Now What? The PowerPoint presentation and a list of online resources for further information are available at the following links.
PPACA Presentation Disclaimer-The presentation slides provide only an outline and do not reflect all of Mr. Young’s remarks. The presentation slides are not intended to be a substantive resource and should not be relied on as such.
Few people enjoy thinking about death, which explains why so many folks procrastinate when it comes to making and executing plans for the distribution of their estate following their own death. In this article, the American Bar Association raises an interesting question: “What happens to your online accounts, computer files and other ‘digital assets’ when you die or become incapacitated?” Think about it. Then plan accordingly.
With the U.S. Supreme Court’s anticipated decision regarding the constitutionally of the law known, both affectionately and derisively, as Obamacare expected on or before June 30, many are awaiting anxiously. As with many things in life, the fix isn’t as simple as affirming the law in toto or finding the law unconstitutional in whole. This AP article highlights some of the effects employers, working families, seniors, and others can expect to encounter regardless of the outcome.
In a case illustrating how a minority position can shift into a majority holding, the Supreme Court of the United States held in Coleman v. Court of Appeals of Maryland, — U.S. — (March 20, 2012), that sovereign immunity bars lawsuits against States under self-care provision of the Family Medical and Leave Act (FMLA) The FMLA requires certain large employers, including States, to grant unpaid leave for self care for a serious medical condition, provided other requirements are also satisfied.
Coleman was an employee of the Maryland Court of Appeals and sued the State of Maryland under the FMLA for denying him self-care leave. The trial court dismissed Coleman’s claim, and the United States Court of Appeals for the Fourth Circuit affirmed, holding that, unlike the FMLA’s family-care provision, the self-care provision was not created to correct an identified pattern of gender-based discrimination and was not congruent and proportional to any pattern of sex-based discrimination on the part of States.
In 2003, a three justice minority would have held States immune under the family-care provision. Then, in Nevada Dept. of Human Resources v. Hibbs, 538 U. S. 721 (2003), the Court held in a 6-3 decision that mandated leave for the care of family members is a valid exercise of congressional power aimed at eradicating sex discrimination. The law, the former Chief Justice wrote, was appropriately directed to ensuring employers did not discriminate against women because of the erroneous perception that women take more time off work to care for children and other sick family members. “The same cannot be said for requiring the States to giveall employees the opportunity to take self-care leave,” Justice Kennedy wrote in Coleman.
All three female justices dissented, as did Justice Stephen Breyer. Of note, the lead dissenting justice, Justice Ruth Bader Ginsburg, was once fired after she became pregnant.
Folks watching challenges to recently redrawn state electoral maps may be interested in this article summarizing today’s unanimous, unsigned order from the Supreme Court of the United States. The order requires a three judge district court in Texas to start its map-drawing exercise anew, this time giving due regard to those portions of the state’s proposed plan that do not reflect illegal considerations. The district court redrew the state’s electoral map after concluding Texas’s proposed map did not comply with the Voting Rights Act of 1965.
United States Supreme Court associate justices Stephen Breyer and Antonin Scalia, who often occupy opposite ends of the spectrum in terms of judicial philosophy, appeared yesterday to testify before the Judiciary Committee of the United States Senate. The subjects on which they testified were wide ranging, and their answers were spontaneous. A webcast of the hearing may be accessed via the website of the United States Senate’s Committee on the Judiciary. In terms of the nine justices’ diverging views on the Constitution, Justice Breyer testified, “This is a very big country. We have 309 million people, 308 million of whom, to everyone’s surprise, are not lawyers.” “And they have many different views. And it’s a good thing, not a bad thing, that people’s outlook on that court is not always the same.” Justice Scalia similarly spoke in favor of conflicting views: “Learn to love the separation of powers, which means learning to love the gridlock, which the framers believed would be the main protection of minorities.” “Americans should appreciate that, and they should learn to love the gridlock. It’s there for a reason.”