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Eminent Domain for Urban Revitalization Five Years After Kelo

Get the latest Emerging Issues Analysis on Kelo v. City of New London , 545 U.S. 469 (U.S. 2005) , the landmark U.S. Supreme Court decision holding that condemnation of non-blighted homes for retransfer for private urban redevelopment did not violate the Fifth Amendment's Public Use Clause. In...

Judge: Military's Ban On Gays Is Unconstitutional

LOS ANGELES - (AP) A federal judge on Thursday declared the U.S. military's ban on openly gay service members unconstitutional and said she will issue an order to stop the government from enforcing the "don't ask, don't tell" policy nationwide. U.S. District Judge Virginia Phillips...

Gill v. Office Of Personnel Management: Downfall Of The Defense Of Marriage Act?

By Teresa M. Harkins La Vita This Emerging Issues Analysis analyzes the court's ruling in Gill v. Office of Personnel Management . The author addresses the impact that this decision, out of the U.S. District Court in Massachusetts, may have on the future of the Defense of Marriage Act (DOMA), 1...

Constitutional Challenge To Insurance Requirement Of Health Care Reform Act Dismissed

DETROIT - (Mealey's) A Michigan federal judge on Oct. 7 dismissed a constitutional challenge to the health insurance mandate/federal income tax penalty of the Health Care Reform Act, saying Congress has a right to try to eliminate cost-shifting by uninsured Americans ( Thomas More Law Center, et...

Judge Rules On Attorneys General Lawsuit Challenging Health Care Law; 2 Claims Remain

PENSACOLA, Fla. - (Mealey's) Two of six claims remain in a suit brought by attorneys general challenging the Patient Protection and Affordable Care Act (PPACA) after a Florida federal judge issued his ruling Oct. 14 on a motion to dismiss brought by the federal government ( State of Florida, et al...

Endurance Coverage: “Top Ten Insurance Cases Of The Year” Reaches The Decade Mark

Randy J. Maniloff, White and Williams, LLP For the past ten years I have had the privilege of publishing an end-of-year article in Mealey’s Litigation Report: Insurance that discusses the ten most significant insurance coverage decisions from the year gone by. Like anything that is done for...

First Circuit sets forth clear indices when a regulatory takings claim is ripe

As noted in prior posts, there has been a long history by landowners seeking to use the Fifth Amendment to obtain compensation for so-called "regulatory takings" of their property. In Downing/Salt Pond Partners, L.P. v. Rhode Island , 2011 U.S. App. LEXIS 10358 (First Circuit: 5/23/11), the...

3rd Circuit Affirms Dismissal Of Health Care Act Case For Lack Of Standing

NEWARK, N.J. - (Mealey's) A Third Circuit U.S. Court of Appeals panel on Aug. 3 affirmed the dismissal of a challenge to the Patient Protection and Affordable Care Act (PPACA) brought by a New Jersey physician, one of his patients and a physician organization, saying that the plaintiffs failed to...

Dismissal Of Lawsuit Challenging Health Care Reform Act For Lack Of Standing Affirmed By Panel

NEWARK, N.J. - (Mealey's) A Third Circuit U.S. Court of Appeals panel on Aug. 3 affirmed the dismissal of a challenge to the Patient Protection and Affordable Care Act (PPACA) brought by a New Jersey physician, one of his patients and a physician organization, saying that the plaintiffs failed to...

Disgorgement and the Fifth Amendment in SEC Actions

Disgorgement and the impact of the Fifth Amendment are issues which reoccur in SEC enforcement actions. Circuit Judge Loken, in an opinion concurring in part and dissenting in part, from an order affirming a grant of summary judgment in a Commission enforcement action provides a thoughtful discussion...

Withdrawing the Fifth Amendment in an SEC Action

The Tenth Circuit Court of Appeals sustained the refusal of the district court to permit a defendant faced with a summary judgment motion in a Commission enforcement action to withdraw his invocation of the Fifth Amendment privilege not to testify. The Court declined, however, to rule on the question...

U.S. High Court Issues Split Ruling On Jurisdiction Of Federal Employees' Suit

WASHINGTON, D.C. - (Mealey's) The Civil Service Reform Act (CSRA) precludes district court jurisdiction over claims by federal employees seeking to declare acts of Congress unconstitutional, a split U.S. Supreme Court ruled June 11 ( Michael B. Elgin, et al. v. Department of the Treasury, et al....

Tax Court Finds Fraud Based, in Part, On Negative Inference from Fifth Amendment Assertion

In Loren-Maltese v. Commissioner, T.C. Memo. 2012-214 , the Tax Court introduces the legal issues as follows: It's the facts that make this case interesting, but there are three issues of law that color its background: the general rules of tax fraud, the proper tax treatment of money taken by...

Ninth Circuit Oral Argument on Act of Production Doctrine

The Record, a California legal publication, reports on oral argument in a case involved the act of production doctrine which says, in effect, that although the contents of documents may not be privileged, a witness under compulsion to produce the documents via subpoena or summons still has a Fifth Amendment...

Invoking the Fifth - the House Oversight Inquisition

Most readers will already know that Lois Lerner, a manager in the IRS division processing Section 501(c)(4) exempt organizations applications, invoked her 5th Amendment privilege in the House Oversight Committee public investigation (more akin to an inquisition than an objective search for truth). The...

U.S. Supreme Court: Silence Admissible

When faced with questions from a government investigator, a person’s silence can now be used in a criminal trial against the person who was questioned and declined to provide an answer. This is a major change regarding how the Fifth Amendment’s right against self-incrimination is applied...

Kansas v. Cheever: A Defendant's Fifth Amendment Rights and Opening the Door Through the Use of Psychiatric Testimony

In this commentary, Jay Shapiro, Co-chair, White Collar Defense, Investigations and Corporate Compliance Group, White & Williams LLP, analyzes the U.S. Supreme Court's recent decision in Kansas v. Cheever , in which the Court held that admitting criminal defendant's statements during a court...

Yet Another Government Victory on the Required Records Doctrine

We have another required records opinion, this time from the Second Circuit. In re: Grand Jury Subpoena Dated February 2, 2012 , ___ F.3d ___, 2013 U.S.App. LEXIS 25316 (2d Cir. 12/19/13), here . I have not studied the opinion but my quick perusal of it saw nothing new in the basic analysis. The opinion...

Required Records IRS Summons Enforced Again

In United States v. Gendreau (SDNY DKT 12 Misc 303 1/22/14), here , Judge Pauley again rejected the taxpayer's claim of privilege for foreign account documents. The compulsory process in question was an IRS Summons for her BSA required records of her foreign financial accounts. (By way of background...

Fifth Amendment and Immunity in Congressional Hearings

Since the Darrell Issa witch hunt is back in the news regarding Lois Lerner's invocation of her Fifth Amendment [ enhanced version available to lexis.com subscribers ] privilege, I thought I would remind readers of the following blog entry earlier when this nonsense flared up. Invoking the Fifth...

Silence in NonCustodial Interviews and the Fifth Amendment

I just read the Seventh Circuit's opinion in United States v. Phillips , [ enhanced version available to lexis.com subscribers ], ___ F.3d ___, 2014 U.S. App. Lexis 4898 (7th Cir. 2014), here , and a recent Champion article, Neal Davis and Dick DeGuerin, Silence is No Longer Golden: How Lawyers Must...

CA5 on Bivens, 5th Amendment: Hernandez v. Mesa (Cross-Border Killing by Border Patrol)

"We therefore hold that a noncitizen injured outside the United States as a result of arbitrary official conduct by a law enforcement officer located in the United States may invoke the protections provided by the Fifth Amendment. ... we extend a Bivens action in this specific context in which an...

Convicted Politician Did Not Lay a Proper Foundation For Proffered Indirect Testimony of Lack of Intent

In United States v. Beavers , ___ F.3d ___, 2014 U.S. App. LEXIS 12469 (7th Cir. 2014), here , the defendant was convicted of multiple counts of tax fraud. The facts are within a range of what might be expected given his profession -- money flowed to him and he did not report or pay tax on it. The...