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European court rejects case vs Germany over Afghan airstrike
Employment Law | 2021/02/16 18:50
The European Court of Human Rights on Tuesday rejected a complaint against Germany’s refusal to prosecute an officer who ordered the deadly bombing in 2009 of two fuel tankers in northern Afghanistan.

Scores of people died when U.S. Air Force jets bombed the tankers hijacked by the Taliban near Kunduz. The strike was ordered by the commander of the German base in Kunduz, Col. Georg Klein, who feared insurgents could use the trucks to carry out attacks.

Contrary to the intelligence Klein based his decision on, most of those swarming the trucks were local civilians invited by the Taliban to siphon fuel from the vehicles after they had become stuck in a riverbed.

An Afghan man who lost two sons aged 8 and 12 in the airstrike, Abdul Hanan, took the case to the European Court of Human Rights after German authorities declined to prosecute Klein. He alleged that Germany failed to conduct an effective investigation and that no “effective domestic remedy” to that had been available in Germany.

The Strasbourg, France-based court rejected the complaints. It found that German federal prosecutors were “able to rely on a considerable amount of material concerning the circumstances and the impact of the airstrike.”

It also noted that courts including Germany’s highest, the Federal Constitutional Court, rejected cases by Hanan. And it added that a parliamentary commission of inquiry “had ensured a high level of public scrutiny of the case.”

Wolfgang Kaleck, the head of the European Center for Constitutional and Human Rights who provided legal support to Hanan, said the verdict was a disappointment for the plaintiff and his fellow villagers, but noted that judges had made clear that governments have a duty to at least investigate such cases.

“The bombardment and the dozens of civilian deaths didn’t result in a rebuke, there’s no resumption of the criminal case,” he told reporters after the court announced its decision. “On the other hand it will be very important internationally, also in future, that the European Convention on Human Rights applies,” Kaleck said. “That’s to say, those who conduct such military operations have to legally answer for them afterward, hopefully to a greater extent than in the Kunduz case.”

A separate legal effort to force Germany to pay more compensation than the $5,000 it has so far given families for each victim was rejected last year by the Federal Constitutional Court. This civil case can still be appealed in Strasbourg.


Trump plan to curb drug costs dealt setback in court
Employment Law | 2020/12/24 21:49
A late-term maneuver by President Donald Trump to use lower drug prices paid overseas to limit some of Medicare’s own costs suffered a legal setback Wednesday that appears likely to keep the policy from taking effect before the president leaves office.

U.S. District Judge Catherine C. Blake in Baltimore issued a nationwide injunction that prevents the Centers for Medicare and Medicaid Services, or CMS, from carrying out the so-called “most favored nations” rule as scheduled on Jan. 1. The judge wrote in her temporary order that CMS had failed to follow required procedures for notice and comment before imposing such sweeping changes.

The Trump regulation would tie what Medicare pays for certain drugs administered in a doctor’s office to the lowest price paid among a group of economically advanced countries. It would apply to 50 medications that account for the highest spending under Medicare’s “Part B” benefit for outpatient care.

That group includes cancer drugs and other medications delivered by infusion or injection. Trump announced his new policy at the White House before the Thanksgiving holiday, saying, “the drug companies don’t like me too much. But we had to do it.”

A coalition of groups including the Association of Community Cancer Centers and the Pharmaceutical Research and Manufacturers of American quickly sued to block the rule. Some opponents have likened the Trump policy to a form of socialist price controls.

Blake wrote that the plaintiffs had established a reasonable likelihood their arguments accusing the administration of cutting corners in a rush to regulate would carry the day in a trial. Federal law says that government agencies must provide adequate opportunity for affected parties to comment on proposed regulations. The administration had sought to use emergency authority as a work-around.

The case is hardly trivial, the judge said. “This case deals with a regulation that would for the first time implement the use of a price control mechanism not provided for by Congress,” Blake wrote.

The Health and Human Services department said it is reviewing the ruling, and had no immediate comment.

Trump came into office accusing drug companies of “getting away with murder” and promising to slash costs for American patients. But his administration was unable to drive major drug pricing legislation through Congress.

Even if the Trump rule is ultimately blocked, the idea of using international prices to lower costs for Americans is very much alive. It’s at the heart of House Speaker Nancy Pelosi’s legislation to empower Medicare to negotiate drug prices. And President-elect Joe Biden also supports the approach.

Blake was nominated to be a U.S. district judge by former Democratic President Bill Clinton.


Trump, Biden lawyer up, brace for White House legal battle
Employment Law | 2020/10/25 04:30
President Donald Trump’s and Democratic rival Joe Biden’s campaigns are assembling armies of powerful lawyers for the possibility that the race for the White House is decided not at the ballot box but in court.

They have been engaging in a lawyer’s version of tabletop war games, churning out draft pleadings, briefs and memos to cover scenarios that read like the stuff of a law school hypothetical more than a real-life case in a democracy.

Attorneys for the Republicans and the Democrats are already clashing in courts across the U.S. over mailed-in ballot deadlines and other issues brought on by the coronavirus pandemic. And as Trump tries to sow doubt in the legitimacy of the Nov. 3 election, both sides have built massive legal operations readying for a bitterly disputed race that lands at the Supreme Court.

“We’ve been preparing for this for well over a year,” Republican National Committee Chief Counsel Justin Riemer told The Associated Press. “We’ve been working with the campaign on our strategy for recount preparation, for Election Day operations and our litigation strategy.”

On the Democratic side, the Biden campaign’s election protection program includes a special national litigation team involving hundreds of lawyers led by Walter Dellinger, acting solicitor general in the Clinton administration, and Donald Verrilli, a solicitor general under President Barack Obama, among others. Bob Bauer, a former White House counsel to Obama, and Biden campaign general counsel Dana Remus are focused on protecting the rights of voters, who have been enduring long lines at polling places around the country on the belief that the presidential election will be decided by their ballots.

Both sides are informed by the experience of the 2000 election, which was ultimately decided by the Supreme Court in Bush v. Gore. But this year, because Trump has pushed unsubstantiated claims about the potential for voter fraud with increased voting by mail, sowing doubt about the integrity of the result, lawyers are preparing for a return trip before the high court.


Ginsburg makes history at Capitol amid replacement turmoil
Employment Law | 2020/09/24 22:36
Supreme Court Justice Ruth Bader Ginsburg  lay in state Friday at the U.S. Capitol as the first woman ever so honored, making history again as she had throughout her extraordinary life while an intensifying election-year battle swirled over her replacement.

The flag-draped casket of Ginsburg, who died last week at 87, drew members of Congress, top military officials, friends and family, some with children in tow, to the Capitol’s grand Statuary Hall, paying respect to the cultural icon who changed American law and perceptions of women’s power.

Democratic presidential nominee Joe Biden and his wife, Jill, joined other invited guests. His vice presidential running mate, Sen. Kamala Harris said that “RBG,” as she is known by many, cleared a path for women like her in civic life.

“She, first of all, made America see what leadership looks like -- in the law, in terms of public service -- and she broke so many barriers,” Harris told reporters at the Capitol. “And I know that she did it intentionally knowing that people like me could follow.”

Biden, who was chairman of the Senate Judiciary Committee when Ginsburg was confirmed 27 years ago this month, said he was brought back to when he met her back then. “Wonderful memories,” he said.

Mourners gathered to honor Ginsburg under coronavirus distancing restrictions with the nation in political turmoil.

President Donald Trump is to announce a conservative nominee to replace her on Saturday, just weeks before the election. White House officials have indicated to congressional Republicans and outside allies that the nominee will be Indiana’s Amy Coney Barrett  but are maintaining a semblance of suspense to let Trump announce her.

His third justice, if confirmed, would be sure to move the court rightward on health care, abortion and other pivotal issues. A Senate confirmation vote would be expected in late October.

House Speaker Nancy Pelosi said it was with “profound sorrow” that she welcomed Ginsburg and opened the private service.

She and Senate Democratic leader Chuck Schumer stood under gray skies as Ginsburg’s casket made the short procession from the court’s steps where it had been on public view for several days to the East Front of the Capitol.


Wisconsin Supreme Court agrees to hear voter purge case
Employment Law | 2020/06/02 23:54
The Wisconsin Supreme Court on Monday agreed to hear a case seeking to purge about 129,000 voter registrations from the rolls ahead of the November presidential election after previously deadlocking on whether to get involved.

Democrats oppose the voter purge, arguing it is intended to make it more difficult for their voters to cast ballots. Conservatives who brought the lawsuit argue that the integrity of the vote is at stake, saying that when records indicate voters may have moved, their registrations should be deactivated.

The case is closely watched in battleground Wisconsin, a state President Donald Trump won by fewer than 23,000 votes in 2016. Winning Wisconsin is a key part of the strategy for both Trump and presumptive Democratic nominee Joe Biden.

he voter purge case was brought on behalf of three voters by the Wisconsin Institute for Law and Liberty, a conservative law firm. It won in Ozaukee County, with a judge ordering in January that the purge take place immediately. The Supreme Court deadlocked then when asked to immediately take the case. In February, a state appeals court reversed the lower court’s ruling, stopped the purge and dismissed the case.

That set up the latest request made in March for the Supreme Court to hear the case, which it agreed to do on Monday. It is likely to hear arguments this summer or early fall and could issue a ruling before the November election.


Supreme Court sides with government in immigration case
Employment Law | 2020/04/26 20:19
The Supreme Court is making it harder for noncitizens who are authorized to live permanently in the United States to argue they should be allowed to stay in the country if they've committed crimes.

The decision Thursday split the court 5-4 along ideological lines. The decision came in the case of Andre Barton, a Jamaican national and green card holder. In 1996, when he was a teenager, he was present when a friend fired a gun at the home of Barton's ex-girlfriend in Georgia. And in 2007 and 2008, he was convicted of drug possession in the state.

His crimes made him eligible to be deported, and the government sought to remove him from the country in 2016. Barton argued he should be eligible to stay. Justice Brett Kavanaugh noted in his opinion for the court's conservatives that it was important that Barton's 1996 crime took place in the first seven years he was admitted to the country.

Kavanaugh wrote that “when a lawful permanent resident has amassed a criminal record of this kind,” immigration law makes them ineligible to ask to be allowed to stay in the country.


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