Law and Justice

Posts Tagged ‘Supreme’

According to the Second Amendment of the Bill of Rights, Americans have the right to hold and bear arms for self-defense, an ability that aggressive Michigan criminal defense lawyers work hard to protect. However, in recent years handgun bans in various major cities in the United States have made that a difficult task. Fortunately, in a recent U.S. Supreme Court decision, the rights of

American citizens to keep and bear arms were upheld, extending to state and local levels. Since 1982, the Midwest city of Chicago has had some of the strictest handgun laws in the country. Residents were not allowed to own handguns for personal use, even in their homes.

Despite these harsh firearm laws, changes were set in motion in 2008. This was when the United States Supreme Court ruled that the Second Amendment assertion that the rights of individuals to possess a gun for self-defense applied to the nation’s capitol. However, since Washington D.C. is a federal city and not a state, it was not specified whether or not the ruling extended to other state or municipal laws.

Fortunately, early Monday morning the Supreme Court clarified themselves. In a 5-4 ruling, the court reasserted the constitutional protection of the Second Amendment to include state and municipal laws, ultimately having both national and local implications. According to gun-rights advocates, this victory for the Second Amendment could potentially allow constitutional appeals to restrictions on handguns be heard and granted nationwide.

As evidenced by the decision handed down from the Supreme Court, the legal process is a complex and ever-changing one. If you have been accused of criminal charges, it is important to find out all your options before proceeding with any type of defense. For this, it is in your best interest to contact knowledgeable Michigan criminal defense attorneys for assistance. Doing so immediately can provide superior legal representation designed to protect your individual rights and freedoms including the right to own handguns for personal use.

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Supreme Court Case doesn’t Open the Floodgates to Discharging Student Loans in Bankruptcy.

The United States Supreme Court affirmed a lower court ruling that discharged Francisco J. Espinosa’s student loans in bankruptcy. The ruling was initially haled as a victory for borrowers and debtors. However, a closer look at the narrow ruling by the High Court establishes that debtors must establish that a student loan constitutes an undue hardship to discharge student loans through bankruptcy.

Mr. Espinosa had taken out four student loans to attend trade school. Four years later, he filed for Chapter 13 bankruptcy, and offered a repayment plan to the court, proposing that he repay the principal over five years, without interest. The bankruptcy judge approved his proposed repayment plan. The lender received notice of the proposed plan, but failed to file an objection. The court approved the plan. The lender failed to appeal from the court’s order within the time permitted by law. Mr. Espinosa repaid the principal on the loan pursuant to the repayment plan approved by the court, and the court discharged the outstanding interest. Years later, the lender attempted to reopen the bankruptcy court case and set aside the discharge of the interest.

On appeal, the lender argued that the bankruptcy court judge did not make a finding that the student loans constituted an undue hardship for Mr. Espinosa, as required by the Bankruptcy Code. In considering the case, Justice Clarence Thomas, writing for the Supreme Court specifically noted that the bankruptcy judge had erred in failing to make the required finding of undue hardship. However, because the lender had failed to timely object, and failed to file the proper appeal, the case had grown stale. “The bankruptcy court’s failure to find undue hardship before confirming Espinosa’s plan was a legal error,” Justice Thomas wrote in the majority opinion. “But the order remains enforceable and binding on United because United had notice of the error and failed to object or timely appeal.”

Noting that the Supreme Court specifically found that the bankruptcy judge had committed legal error probably precludes or severely limits the precedential value of the Espinosa case. In this case, the discharge came about because the lender slept on its right to object and timely appeal. If similarly situated lenders did not already have good reason to be vigilant for debtors seeking to discharge some or all of their student loan obligations in bankruptcy, they certainly will after the Espinosa decision.

Rather than being a great victory for debtors and borrowers, the Espinosa case actually reaffirmed that the Bankruptcy Code requires judges to make a determination of undue hardship. Failure to do so would constitute reversible error in other cases under different circumstances. Consequently, the Supreme Court’s decision does not open the floodgates to student loan discharges.

A World War I memorial will be allowed to stay in the Mojave Desert, and though covered since 2002 because it offended some people as a religious symbol is now unveiled again. It was the United States Supreme Court that allowed the Cross, on private land owned by the Veterans of Foreign Wars to stay after a protracted controversy. The Cross has stood for about 75 years in the desert. The question came to, Is the Cross religious symbol for Christians solely, or War Memorial for American dead?

In California and even San Francisco’s Bay Area the subject of a cross in a remote desert spot in the Mojave was a highly controversial matter. What about the cross on public land? Does this not violate separation of Church and State? was hotly asked.
 
A religious symbol cannot be on public land, said Frank Buono who is now retired from the Park Service. He brought the case to The Supreme Court over a ten year period with the help of The American Civil Liberties Union. According to The New York Times, “The white wooden cross, roughly 5 feet tall, stands atop Sunrise Rock in California’s San Bernardino County.” It is actually made of pipe today. The Supreme Court did not say whether this was a simple, dignified, and even popular War Memorial of little note but some popularity among the private individuals who visited it, and those who built it. The Court took on this almost humble case that to some appeared overblown.
 
A PDF of the Supreme Court decision is here.
 
The announcement of the Court’s result was made and reported in major newspapers April 28, 2010. Writing for the Supreme Court in Salazar v. Buono, Justice Anthony M. Kennedy said:
“The District Court concentrated solely on the religious aspects of the cross, divorced from its background and context. But a Latin cross is not merely a reaffirmation of Christian beliefs. It is a symbol often used to honor and respect those whose heroic acts, noble contributions, and patient striving help secure an honored place in history for this Nation and its people. Here, one Latin cross in the desert evokes far more than religion. It evokes thousands of small crosses in foreign fields marking the graves of Americans who fell in battles, battles whose tragedies are compounded if the fallen are forgotten.”
 
The Veterans of Foreign Wars agreed. One could easily surmise that’s the real issue, the real case from their vantage point. Many veterans agreed.
 
Gabriel Nelson, writing in his blog in The New York Times, said, “The Supreme Court ruled today that Congress and the Interior Department acted properly when they used a land transfer to solve a dispute over a cross on display in the federal Mojave National Preserve.”
 
There was no big hullaballoo, but a minimal statement with dissent by the Supreme Court. Gabriel Nelson put it well in his low key remark on how the Interior Department had acted properly. This writer has taken some snippets from other newspaper reports that demonstrate all are in accord in their reporting of the facts, and as the Supreme Court noted it was the facts that led them to their conclusions on the decision.
 
In its brief on behalf of Interior Secretary Ken Salazar, Solicitor General Elena Kagan said the cross did not imply government sponsorship. The transfer of land to the Veterans of Foreign Wars that required the installation of a plaque dissociating the statue from the federal government, she wrote, satisfied the problem of Church/State religion (Christian).
 
The Christian Post said in its report, “The goal of avoiding governmental endorsement does not require eradication of all religious symbols in the public realm,” wrote Justice Anthony Kennedy. “This cross,” he wrote, “evokes thousands of small crosses in foreign fields marking the graves of Americans who fell in battles.”
 
As a taste of the real argument in differences on the United States Supreme Court, it appears to this writer that Justice Anthony Kennedy caught the essence of the issue separating Justices. The Wall Street Journal noted in their report, Justice Stevens’s dissent argued that Congress wasn’t taking action to memorialize veterans, but rather using their memory to justify maintenance of a religious symbol. He noted that the Mojave cross little resembles the prominent and nonsectarian markers erected for those who served in World War II, Korea or Vietnam.
 
JESS BRAVIN Wall Street Journal writer pointed out in his article, The cross—estimated at five to seven feet tall—stands on Sunrise Rock in a remote patch of desert. Veterans, some of whom had moved to the region for health reasons, first erected a cross at the site in 1934 and it was often used for Easter services. The current version was assembled from painted metal pipes in 1998 by Henry Sandoz of Yucca Valley, Calif.
 
Though The Wall Street Journal called the decision one whereby the Cross was determined more war memorial than religious symbol, the grass roots battle in California called for many statements that: Yes, it was significantly and first a war memorial, but it was a religious statement for the war dead. There the Supreme Court did not necessarily agree, but it did not make sweeping decisions. Justice Kennedy wrote, Because of the “highly fact-specific nature” of the case, it is “unsuited for announcing categorical rules.”
 
Justices Ruth Bader Ginsburg and Sonia Sotomayor joined Justice Stevens’s dissent. Justice Stephen Breyer dissented separately.
 
Images:  (1) Mojave Desert Cross, by Associated Press; (2) Mojave Desert Cross, by unknown.

I am very happy to see the judgment of the Supreme Court on National Company Law Tribunal.  I have read the judgment of Justice Jayasimha Babu of Madras High Court regarding the constitution of National Company Law Tribunal and Appellate Tribunal in the Writ Petition preferred by Madras Bar Association many times. It was vehemently argued before the Madras High Court that the powers and jurisdiction of Court is taken away by the executive from time to time by constituting Tribunals. In my opinion, the Madras High Court could have stayed the constitution of National Company Law Tribunal as it takes away a very important jurisdiction of the High Court and the powers exercised by the High Court for years traditionally. I don’t think that giving a reason as to staying the constitution of National Company Law Tribunal is a difficult thing and especially in view of the functioning of the Company Law Board and the experience. Despite all this, laudably, the Madras High Court has upheld the power of executive in constituting National Company Law Tribunal though it stayed the certain provisions of the Companies (Second Amendment) Act, 2002. The Madras High Court has highlighted most important issues like independence, impartiality and quality of presiding officers while delivering the judgment on Constitution of National Company Law Tribunal. As everybody knows, the judgment of Madras High Court is upheld by the Supreme Court with elaborate observations in order preserve the independence and impartiality of an adjudicatory forum like National Company Law Tribunal. Though, we tend study the difference between Tribunals and Courts academically, there is no much difference between Tribunals and the Courts logically. The only difference may be that the Tribunals are constituted by a special enactment which may follow special procedure and need not follow Civil Procedure Code. As such, the basic principles like independence, impartiality and quality of presiding officers is to be preserved at any cost. In my opinion, it is part and parcel of basic structure of Constitution of India.

I am a critic of judiciary to some extent and a person to see the needed legal reforms in India aiming at effective and speedy justice. But, when it comes to exercise of powers by the High Court under Companies Act, 1956, I was of the opinion that the High Court or the Company Court is doing well despite many inevitable complications. Constitutional Courts have laid down wonderful principles regarding interpretation of provisions of Companies Act, 1956. After constitution of Company Law Board, if we see the difference between the powers exercised by the Company Law Board and the High Court, in my opinion, High Court is doing well compared to Company Law Board. High Court faces so much work pressure and had to listen and pass orders in many matters. It is not the case when it comes to Company Law Board. Many feel that the remedy before the Company Law Board was not effective and there are so many reasons as to why the litigation before Company Law Board was not effective and it is also addressed indirectly in the judgment of Madras High Court and the judgment of Supreme Court on constitution of National Company Law Tribunal.

The object behind introducing a Companies Bill is really good and I don’t think that it is a big exercise. What is important is that providing an effective reddressel to the companies or the shareholders when they approach the court or the tribunal for the protection of their corporate rights.  With the proposed Companies Bill, most of the powers of High Court are taken away with the constitution of National Company Law Tribunal and the Appellate Tribunal. There is a specific bar on the jurisdiction of Civil Courts in entertaining a company matter. I have read the paper statements that the Ministry of Corporate Affairs is planning to approach the bench of the Supreme Court again asking for a review on the ground that the members of ICLS are not allowed to be presiding officers of the National Company Law Tribunal. As I have read, according to the Ministry of Corporate Affairs, the members of ICLS are most talented and suited to deal with the company related issues. It is emphasized that there is so much procedure to be followed to introduce the Companies Bill again in the Parliament subsequent to the judgment of Supreme Court on NCLT.

I am not on the issue of the intelligence of the members of ICLS at all with due respect to the members of ICLS, but, I have some doubts like:

1. Why the Companies Bill is sought to be introduced in the Parliament knowing fully of the proceeding before Supreme Court?

2. Why Company Law Board could not be effective as opined by many companies and shareholders?

3. Was there any complete assessment as to why the Company Law Board could not provide an effective remedy?

4. Is Ministry of Corporate Affairs convinced that the Company Law Board is successful in achieving its object?

5. How come the Ministry of Corporate Affairs is convinced that the National Company Law Tribunal can effectively exercise most of the powers under the provisions of Companies Act, 1956 where there is no much difference in wording between the provisions dealing with the powers of Company Law Board under Companies Act, 1956 and the powers of National Company Law Tribunal under the proposed Companies Bill barring the bar on Civil Court’s jurisdiction?

6. Was there any thinking as to the implementation of the orders of the Company Law Board or the proposed National Company Law Tribunal as the orders of the Company Law Board were violated directly in many cases?

7. Was there any discussion with the Law Ministry or the concerned people regarding the powers of Contempt of National Company Law Tribunal in view of the general application of provisions of Contempt of Courts Act?

8. Will it not cause a great hardship to the companies or the corporates if only there is one Appellate Tribunal in Delhi?

9. Did the Ministry of Corporate Affairs take note of filing fictitious forms with the ROC under MCA scheme and procedure for removal of those forms?

Constitution of National Company Law Tribunal and its effective functioning is very important for the corporate world. It is not an easy thing for the Ministry of Corporate Affairs to ensure proper functioning of National Company Law Tribunal in view of our experience with Company Law Board as I believe and heard from many shareholders. The judgment of the Madras High Court and the Supreme Court in the Appeal on constitution of National Company Law Tribunal is really laudable; as otherwise, there would have been an irreparable damage to the corporate world. The issue is really challenging for the Ministry of Corporate Affairs and it will be interesting to follow as to  when the Companies Bill is introduced, changes are made to the bill subsequent to the judgment of Supreme Court and the finally the functioning of the National Company Law Tribunal.

Note: The views expressed are my personal and I have no intention to insult any profession or institution.

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A constitution is the supreme law of a free country. It is the system by which a government of a country functions. Constitution of India was adopted in the in the constituent assembly on 26th November 1949. It is document that contains set of instructions and policies that a government in power of India must follow. Indian constitution came into force on 26th January 1950, the republic day of India, defining India as a republic union of states. Indian constitution also defines the fundamental rights, directive principles and fundamental duties of a citizen of India. Constitution of India declared India as a state to be sovereign, democratic republic but later in the amendment of constitution of 1976 the India was added to be a socialist and secular state.

The constitution of India is the longest written official book than any other of an independent country. Indian constitution is considered the best constitution that an independent country has in the world. It is a well drafted book that is a result of research of years. India is still a young independent country and hence the makes of India constitution have adopted several effective articles and laws from different constitutions of other countries. It has given a permeable that is just a complete crux about it. Preamble of India is again considered the best in the world. It contains 22 sections including 395 articles, 12 schedules and 83 amendments.

The committee that drafted the constitution of India was headed by Dr. B.R. Ambedkar and other six members as Jahwahar Lal Nehru, C. Rajagopalachari, Rajendra Prasad, Sardar Vallabhbhai Patel, Maulana Abul Kalam Azad and Shyama Prasad Mukherjee. All these members were great politicians and major scholars of India. Indian constitution is written in the hand writing of Dr. Ambedkar.

Indian constitution is the best official draft one must read to know how a democratic and independent republic nation works. It will provide a deep insight of the laws and principles that Indian government follows to run the union of India.

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Portland, OR- The supreme court held in Gonzalez v. Farmers of Oregon, et, al., SC S054486, . that the policy holder could recover diminished value from his first- party policy, Farmers insurance. Damages against Farmers insurance could be in excess of $30 million. Currently, there are class action lawsuits against Allstate, Progressive, and State Farm for diminished value as well in Oregon. The class action lawsuit could end up including-covered auto repairs in Oregon since 1993, states Dan Gatti the lead plaintiffs attorney.

In the state of Oregon, if a consumer is in a wreck and the accident was not the consumers fault the consumer is entitled to file a claim for diminished value. The following case is pertinent to the State of Oregon and Diminished Value as a 3rd party claim:

Dunmire Motor Company v. Oregon Mutual Fire Insurance Company, 166 Ore 690 (1941) the Oregon Supreme Court ruled that the insured was entitled to the difference between the pre and post-loss value of the vehicle and the proper repair of the car may not accomplish this result.

In order to recover the losses for diminished value the consumer must have a diminished value auto appraisal completed by a professional Automobile Appraisal Company, such as Appraisal Group of America inc.. Also, if the other party does not have insurance and the consumer carries uninsured/ underinsured motorist coverage the consumer may be able to claim diminished value under their policy. Appraisal Group of America can help the Oregon Consumer in many ways. Also, Appraisal Group of America’s Corporate Headquarters is in Oregon as well as the owner, Terry Fisher is a licensed Oregon Automobile Appraiser. Call 877-655-1661 or 503-655-1661 or go to www.autoloss.com to consult with a licensed appraiser at Appraisal Group of America.

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Video games are one of the most addicting things that have been developed right now. In fact, video games have been around for a long time already. The thing about video games is that it is interactive. It allows players to be challenged on the puzzles that have been programmed in them. There are obstacles that need to be overcome and you have to be able to do that to get to the main goal in each video game. It also allows people to pass a long period of time without actually noticing it. This is also one of the reasons why video games have become so popular.

There are different types of video games. You can notice that each video game holds a story and you, as the player, have to work with the story. You will be given scenarios and you will have to be able to solve the problems presented in them. There are stories about fairies and saving forests and there are stories about unlikely heroes who have to save princesses and kings and leaders. However, there are also some which are violent and that is something that has made a number of people be against this type of technology.

In the state of California, there is already an appeal about violent video games and so a bill has been made. However, it seems like it has not been passed and so the state is already asking for it to be sent to the Supreme Court in hopes that it will become real and be mandated already. The law on violence in video games talks about just which ones would be allowed to be sold and to whom they can be sold. Of course, this means that those that are quite violent should not be sold to those who are minors.

The appeal on the violence in video games is being worked on by Jerry Brown, the attorney general of California. He wants that the law be put back and he has brought the law already to the Supreme Court to be decided on. He wants the law reinstated so that violent video games should not be sold or even rented to minors. It has not been stated whether a Lexington law firm is helping the attorney general on this or if there have been Lexington law facts included in the whole deal. However, for many people, the law should be reinstated so that children and minors would not be introduced to violence that early.

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