Fair Trials and the Recusal of Judges
February 25, 2005
One of the most perplexing problems that a matrimonial attorney will face is deciding whether or not to take the chance of antagonizing the judge and moving for his or her recusal. Although a judge may act gruff, be antagonistic or treat the attorney poorly, this is not a basis for recusal, even though it may be a basis for judicial discipline.
Child Custody
February 25, 2005
We live in a mobile society. Parents with a child in common may move from state to state, with or without the child involved in the moves. People with court orders granting custody or access to a child, sometimes including grandparents or siblings who have statutory rights, may not be in the same state as a child. They may need to enforce or modify custodial determinations.
Same-Sex Marriage Update
February 25, 2005
Some New Yorkers have been attempting for years to get same-sex marriage legalized in this state, but the past year has been a true watershed. The latest development, of course, is the February 4 decision in <i>Hernandez v. Robles</i> by Justice Doris Ling-Cohan of State Supreme Court, which held that same-sex couples have the same constitutional right to marry that opposite-sex couples do. It was the first state-level decision in New York in support of gay marriage rights.
Creating Parental Access Plans: Two More Options
February 25, 2005
In January and February's newsletters, we discussed the problems inherent in setting up parental access plans in this era in which parents are increasingly demanding a greater share of parenting time. The two charts below offer more options for allocating time between parents.
Love As a Matter of Contract?
February 25, 2005
With Americans spending more time at work, and with large numbers of women joining the workforce since World War II, the workplace has become a principal place where men and women seek and find their romantic partners, whether for a fling or a long-term relationship ending in marriage. Indeed, by some reports, nearly 60% of employees acknowledge engaging in a workplace romance. At the same time, however, American employers have been tempted to cultivate a near zero-tolerance culture for workplace romance given the development of sexual harassment law and the explosion of discrimination lawsuits alleging harassment. In many ways, it is impracticable for employers to maintain an outright ban on workplace romance: love will find a way, and employees may well hide relationships, which could end up being more problematic for the employer and just as likely to lead to an eventual lawsuit.
Overseeing Overtime Practices
February 25, 2005
Overtime eligibility has developed into a snake pit for employers. The rate of claims for unpaid overtime compensation in court cases and agency proceedings has been increasing faster than that of any other type of employment litigation for several years now. During this period the number of federal overtime collective actions has been more than the number of federal class actions for all types of employment discrimination combined. The cumulative damages awarded to current and former employees for these claims have been enormous.
The Federal Circuit's En Banc Consideration of Claim Construction in Phillips v. AWH Corp.
February 25, 2005
Federal Circuit decisions on how to interpret patent claim language are critically important. Unfortunately, however, recent Federal Circuit decisions do not reflect a unitary approach to patent claim interpretation. On July 21, 2004, the Federal Circuit issued an order granting a petition to rehear <i>en banc</i> the appeal in <i>Phillips v. AWH Corp.</i>, 363 F.3d 1207 (Fed. Cir. 2004). The court "determined to hear this case <i>en banc</i> in order to resolve issues concerning the construction of patent claims," and invited the parties as well as <i>amicus curiae</i> to submit briefs on seven very specific questions relating to claim construction methodology and review on appeal. This article analyzes the <i>Phillips en banc</i> appeal focusing on the <i>amicus</i> briefing and responses to the Federal Circuit's seven questions.
Calculation of Lost Profits Damages in Patent Cases
February 25, 2005
Part one of this series, published last month, reviewed the current state of the law governing the availability of lost profits damages in patent infringement cases. This final installment addresses the calculation of these damages based on diverted sales.
