106 Courts

106II Establishment, Organization, and Procedure

106II(G) Rules of Decision

106k88 Previous Decisions as Controlling or as Precedents

106k89 k. In General.

Judicial devotion to the doctrine of stare decisis is indeed a justifiable concept to be followed by the courts; however, it cannot and must not be so strictly pursued to the point where the court’s view is opaqued and reality disregarded.
Hall v. Dillon Companies, Inc., 189 P.3d 508 (Kan. 2008)

Suggested by Valerie Garber, West Principal Attorney Editor

Abraham Lincoln was the first president to revoke habeas corpus, the legal filing that gives an imprisoned person the right to challenge the legality of his or her detention before a court. The Civil War had just started, Congress wouldn’t be in session until July, and Lincoln said he needed a way to control Confederate agitators residing in certain parts of the Union.

Among the first to be denied habeas corpus under Lincoln’s order was John Merryman, a Maryland secessionist accused of burning bridges and disrupting telegraph lines. He was roused in the middle of the night  by Union soldiers and taken into military custody. The very next day, another Maryland native – Roger Taney, the chief justice of the U.S. Supreme Court – came to his defense.

Taney (pictured here) was clearly Lincoln’s nemesis. A Democrat and former slaveholder, Taney wrote the majority opinion in the 1857 Dred Scott decision that further entrenched slavery.

Chief Justice Taney issued a writ of habeas corpus for Merryman in defiance of Lincoln’s order. Lincoln and the military ignored Taney’s writ, which prompted the chief justice to issue an opinion on May 28, 1861.

In Ex parte Merryman, Taney pointed out that the constitutional provision regarding habeas corpus is found in Article I of the Constitution, the part that addresses Congressional powers, which meant that only Congress could lawfully suspend it – not the president.

Lincoln’s defenders argued that the provision doesn’t spell out who has the power to suspend habeas corpus. They also argued that it was clearly intended as an emergency measure and that the founding fathers could not have meant for it to be used only when Congress was in session.

Constitutional or not, Lincoln’s suspension of habeas corpus was used by the military to detain more than 13,000 citizens during the Civil War.

George W. Bush was the only other president to revoke habeas corpus, although he did it with the backing of Congress when he signed the Military Commissions Act of 2006. And while Lincoln’s order applied to U.S. citizens, the law signed by President Bush applied only to aliens who were deemed “enemy combatants.”

Westlaw users: Read Chief Justice Taney’s ruling in Ex parte Merryman (17 Fed.Cas. 144) on Westlaw. (Sign-on required)

CodeNotes:

Cases in both Westlaw and WestlawNext contain WestCodenotes. These are annotations added by our editors which indicate statutes which have been deemed unconstitutional or whose Constitutionality has been called into question. All of these statutes which have been called into question are linked from this CodeNotes sections. If you pull up any of these statues you will also see that it now has a yellow KeyCite flag, indicating that Graham has called its validity into question.

Submitted by
Casey H

(Provided by West Reference Attorneys)

ALLNEWS: (Pukemon) & DA(LAST 90 DAYS). (10 Results)

I am pretty sure I had a Criminal Law final with this scenario or possibly the civil version in Torts. Anyway, as Pukemon has shown, drunken abandon can lead to some serious consequences. Since we deal with those consequences and frequently need a place to start, check out the Criminal Practice tab and/or the DUI Practitioner tab.

Submitted by
Ryan H.

310 Prisons

310II Prisoners and Inmates

310II(B) Care, Custody, Confinement, and Control

310k156 k. Hazardous and Unhealthful Conditions; Housing.

Persons are sent to prison as punishment, not for punishment; it is incumbent upon the incarcerating body to provide the individual with a healthy habilitative environment.
Battle v. Anderson, 447 F.Supp 516 (E.D. Okl., 1977)

Pat M., information services director for a Connecticut law firm, is the latest winner of an iPod touch for his photo (below right) showing WestlawNext Mobile in action.

Next week, Johnny and Jenny Westlaw will be demonstrating how easy it is to enter the contest. Here are the steps involved:

1. Using any camera, snap a photo that includes your mobile device doing its thing, with the WestlawNext Mobile screen clearly visible.  You can include yourself in the photo, but don’t include others without their written consent.
2. In addition to your contest photo, please include a photo of yourself. This could be as simple as a self-portrait of your smiling face next to your mobile device. And to make it even more memorable, choose an interesting backdrop: think local landmarks, famous monuments, city skylines, natural attractions, etc.
3. Submit photos in GIF, JPG or BMP format to westlelearning@thomsonreuters.com. Include your name, title, daytime phone, email, and your employer (name and address).  The email should also include a brief caption or description of the photo.

Easy stuff, right? So get snapping!

Silence was never written down.

Sometimes silence is not golden, it’s just yellow! – Uncle Anthony

The tenants were a New York City couple with plans to buy their own condo. They gave notice that they planned to move out of their apartment by August 31, which coincided the end of their lease term.

So far, so good. But as any homeowner knows, an alarming array of problems can arise between offer acceptance and closing, and sure enough, the hopeful homeowners’ closing date was pushed back. They asked the landlord if they could continue renting through September, and the landlord reluctantly agreed.

The real-estate delays continued. In mid-September, one of the tenants talked to the landlord’s wife on the phone. The tenant hinted at the creeping likelihood that the couple would need a place to stay beyond September, but she did not ask explicitly for another extension.

The couple ended up staying until December 23, but the landlord refused to cash their rent checks after September, instead opting to file for a holdover proceeding to force them out.

What the headnote refers to is the tenants’ silence regarding their intent to remain in the apartment beyond the agreed-on one-month extension. Their failure to speak misled the landlord, according to the judge, and effectively signified that they would abide by the terms of the oral agreement.

A two-for-one lesson here: If you want it, ask for it… and then get it in writing.

Curious about the case? Westlaw users can view the judgment in Palumbo v. Donalds (754 N.Y.S.2d 856) on Westlaw. (Requires sign-on)

Curious about the quotations? Both of the quotes at the very top of this post can be found in Uncle Anthony’s Unabridged Analogies: Quotes & Proverbs for Lawyers and Lecturers, which is available at a 10% discount to all Westlaw Insider readers – including the talkative ones.

The “FORMFINDER.” link is at the top-center of the Westlaw.com screen. As Seth pointed out earlier, this will get you to a search page where you can access transactional or litigation-related forms, checklists and sample clauses. What the typical Summer Associate might be searching will be, admittedly, less colorful than tainted snacks or out-of-control circus barkers, but no less important.

Let’s say you wanted a checklist for drafting a commercial lease in New York. The default search method is the template mode, which makes life easier for most users. You can see that I selected my Topic, Subtopic and Document Type with simple clicks, and I selected New York right below by placing a check in the appropriate box.

One of the documents that comes back looks something like this:

[etc. etc.] Voila—a checklist. Now you can get started on your project, or at least you have a good frame of reference for when you consider what you might need to put in your lease.

Submitted by
Tedd C.

110 Criminal Law

110XXXI Counsel

110XXXI(C) Adequacy of Representation

110XXXI(C)2 Particular Cases and Issues

110k1891 k. Preparation for trial.

The duty to investigate does not force defense lawyers to scour the globe on the off-chance something will turn up; reasonably diligent counsel may draw a line when they have good reason to think further investigation would be a waste.
Hill v. State, 301 S.W.3d 78 (Mo. Ct. App. 2010)

Suggested by Kara Boucher, West Principal Attorney Editor