Howard v. Howard

Howard v. Howard

336 S.W.3d 433 (Ky. 2011)

Roy Shane Howard and Sondra Howard. Trial Court divided parties marital property and debts assigning Shane liability for a National City loan on the parties’ Dodge Durango. Shane successfully filed in fed court a bankruptcy petition for Chapter 7 discharge.

Sought to reduced child support obligation, claiming health problems, inability to find work and the bankruptcy he received. Sondra found he was in contempt of court for failure to pay the debt on the repossessed Durango. Appeal as with bankruptcy. Appeals court found that under the Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA), which does not discharge the debtor from any debt “to a spouse, former spouse or child” for something other than a domestic support obligation.” Shane appealed.

As the Court of Appeals states, Shane had the obligation under the divorce decree but the issue whether this debt would not be subject to discharge under the requirements of 11 U.S.C. section 523(a)(15) as a debt to Sondra under the divorce decree. They found that the obligation did indeed meet the rquirements and that Sondra was not required to file anything in bankruptcy court regarding the Chapter 7 filing in order to preserve her right to enforce in state court of Shane’s obligation to her under the divorce decree.

The Court ended up finding that while the debtor’s obligation on an underlying debt to a third-party creditor may be discharged because that underlying debt was not to a spouse or former spouse or child, the weight of authority holds that a separate, otherwise enforceable, obligation under a divorce decree to make payments on a third-party debt is not dischargeable in Chapter 7 bankruptcy following the BAPCPA amendments.

Newton v. Diamond

Newton v. Diamond

388 F. 3d 1189

Facts. Owner of copyright in musical composition brought infringement action against band that had included short segment of composition in its own musical recording. James W. Newton is an accomplished avant-gard jazz flutist and composer. In 1978, he composed the song “Choir,” a piece for the flute and voice intended to incorporate elements of gospel, japanese ceremonial court music, and traditional African music. “Choir” was licensed in the sound recording to ECM Records for all rights. The defendants were members of the Beastie Boys and their business associates. In 1992, Beastie Boys obtained a license from ECM Records to use portions of the sound recording of “Choir” in various renditions of their song “Pass the Mic” in exchange for a one-time fee of $1,000.

That particular portion consisted of 3 notes, C-D flat-C, sung over a background C note played on the flute. Pursuant to their license from ECM Records, Beastie Boys digitally sampled the opening six seconds of Newton’s sound recording of “Choir.” Beastie Boys repeated or “looped” this six-second sample as a background element.

Newton filed the instant action in federal court in 2000, alleging violtions of his copyright in the underlying composition, as well as Lanham Act violations for misappropriation and reverse passing off. The district court held that the three-note segment of “Chior” composition could not be copyrighted because it lacked originality. The court also concluded that even if the segment were copyrightable, the Beastie Boys’ use of the work was de minimis and therefore not actionable.

Analysis. The Circuit Court affirmed the grant of summary judgment on the ground that the Beastie Boys’ use was de minimis and therefore not actionable. Assuming that the sampled segment of the composition was sufficiently original to merit copyright protection, we nevertheless affirm on the ground that Beastie Boys’ use was de minimis and therefore not actionable.

Held. Affirmed. The Court of Appeals held that band’s sampling of three-note sequence from composition was d minimis.

 

 

State v. Kirsch

State v. Kirsch
549 US 1295

Facts. Defendant was a member of the Granite State Baptist Church in Salem, and drove the church bus that drove the victims to church; Defendant also attended overnight sleep-overs at the church. D was charged with various sexual assault crimes, based on the allegations of 3 young girls. At trial, the prosecution attempted to introduce testimony of those three victims, as was the testimony of three other women pursuant to Federal Rule of Evidence 404(b); the testimony of the latter concerned sexual abuse allegedly committed against them by Defendant. The trial court allowed the testimony of the uncharged acts, ruling that the evidence was relevant to prove motive, intent, and common plan or scheme, and therefore was admissible under 404(b).

Issue. Was the testimony from the alleged victims of uncharged crimes properly admitted under Rule 404(b).

Rule. New Hampshire’s equivalent to Federal Rule of Evidence 404(b) prohibits the admission of evidence of “other crimes, wrongs, or acts… in order to show the person acted in conformity there with,” and only allows evidence of prior bad acts to be admitted when it is offered to prove such tings as motive, intent, or a common plan.

Held. Reversed and remanded.
No; testimony concerning the uncharged assaults should not have been admitted, as it constitutes evidence offered to show Defendant’s propensity to commit sexual assaults and that D acted in conformity therewith, not evidence of D’s motive, intent, and common plan or scheme.

Concurrence. Justices Thayer and Horton concur in part and dissent in part, arguing that the evidence offered was relevant to show D’s plan, and should have been admitted.

Discussion. The majority argues that the, “ostensible purpose for which the prosecution sought to admit evidence of a multitude of other uncharged sexual assaults was to show the defendant’s predilection for molesting young females over whom he was able to gain control thorugh engendering trust. At most, this is evidence of the defendant’s disposition to commit the offenses with which he was charged, impermissible under Rule 404(b).” The dissent, on the other hand, argues that, “the majority’s narrow reading of the common plan exception essentially requires the State to show the defendant’s state of mind before he started on his spree of criminal conduct, limiting the exception to a mutually dependent series of events.” The dissent cites other New Hampshire precedent to support its contention that, “the rule should not be so limited.”

Grutter v. Bollinger

Grutter v. Bollinger
539 U.S. 306 (2003)

Facts. Petitioner, Barbara Grutter, applied for admission to University of Michigan Law School in 1997 with a undergraduate GPA of 3.8 and an LSAT of 161. She was denied. Pettioner, who is white, is challenging the law school’s use of race as a factor in the admissions process. The school justifies it because diversity adds an element of education that is helpful in the legal profession. When law students can understand and experience other cultures and viewpoints they can be better citizens.

Issue. Did the University of Michigan’s use of racial preferences in the admissions process violate the Equal Protection Clause or Title VI of the Civil Rights Act of 1964?

Held. No. The law school in this case was conducting highly individualized reviews of each applicant, and Justice O’Connor determined that race was only one of many factors considered to determine the applicant’s eligibility. Schools have a compelling interest in having diverse student bodies.
Grutter’s companion case, Gratz v. Bollinger, challenged Michigan’s undergraduate admissions policies. The Court struck down this policy, however, finding that it gave an overall advantage to minority students.

§ 101. Definitions of Uniform Partnership Act 1997

Unif.Partnership Act 1997 § 101

§ 101. Definitions.

 

In this [Act]:

(1) “Business” includes every trade, occupation, and profession.

(2) “Debtor in bankruptcy” means a person who is the subject of:

(i) an order for relief under Title 11 of the United States Code or a comparable order under a successor statute of general application; or

(ii) a comparable order under federal, state, or foreign law governing insolvency.

(3) “Distribution” means a transfer of money or other property from a partnership to a partner in the partner’s capacity as a partner or to the partner’s transferee.

(4) “Foreign limited liability partnership” means a partnership that:

(i) is formed under laws other than the laws of this State; and

(ii) has the status of a limited liability partnership under those laws.

(5) “Limited liability partnership” means a partnership that has filed a statement of qualification under Section 1001 and does not have a similar statement in effect in any other jurisdiction.

(6) “Partnership” means an association of two or more persons to carry on as co-owners a business for profit formed under Section 202, predecessor law, or comparable law of another jurisdiction.

(7) “Partnership agreement” means the agreement, whether written, oral, or implied, among the partners concerning the partnership, including amendments to the partnership agreement.

(8) “Partnership at will” means a partnership in which the partners have not agreed to remain partners until the expiration of a definite term or the completion of a particular undertaking.

(9) “Partnership interest” or “partner’s interest in the partnership” means all of a partner’s interests in the partnership, including the partner’s transferable interest and all management and other rights.

(10) “Person” means an individual, corporation, business trust, estate, trust, partnership, association, joint venture, government, governmental subdivision, agency, or instrumentality, or any other legal or commercial entity.

(11) “Property” means all property, real, personal, or mixed, tangible or intangible, or any interest therein.

(12) “State” means a State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, or any territory or insular possession subject to the jurisdiction of the United States.

(13) “Statement” means a statement of partnership authority under Section 303, a statement of denial under Section 304, a statement of dissociation under Section 704, a statement of dissolution under Section 805, a statement of merger under Section 907, a statement of qualification under Section 1001, a statement of foreign qualification under Section 1102, or an amendment or cancellation of any of the foregoing.

(14) “Transfer” includes an assignment, conveyance, lease, mortgage, deed, and encumbrance.

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August 31, 2012 · 12:53 am

Employment Issues and the Fun of Fall OCI

 

Like most of you out there, the big thing right now is Fall OCI. I wish you all the best and you get those jobs.

Some words of inspiration:

“If your ship doesn’t come in, swim out to meet it!” Jonathan Winters

Remember if you don’t get this OCI, there’s so many more places to turn. You have to go to the Meet and Greets and go actually talk to some practicing lawyers and judges. No matter how marginal you think these events are for your future, they’ll do a lot to put your foot in the door for small jobs. You have to show that you’re willing to work hard, and sometimes that’s being annoying and that’s just what you have to do.

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August 31, 2012 · 12:41 am

Start of the Blawg

A little bit about myself before I go on: I’m a 2L and I’ve been spending a little too much time in the law library. I am starting this law blog (blawg) because as most of you that would read this, there isn’t anywhere on the internet where there is a comprehensive copy of the Uniform Partnership Act.
This is where I am starting, these type of comprehensive copies of public domain acts. I wanted a place where I could just look up the Federal Rules of Evidence or the Uniform Partnership Act section 1001, etc.

Outside of the Cornell site, I don’t think there’s much more and because of this, I thought I’d do you all a favor, as I would’ve liked when I started law school, and post as many briefs, memorandums, statutes and rules, that would make your lives easier. Also to ease up on the seriousness of all this, I’ll probably add a little bit here and there of things in my life to break up the monotony. It’s a daunting task to be a law student, especially in today’s world, and if I make it a little easier for just a couple of you out there, I’ll be happy.

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