Ware V. Cnty's Argumentative Essay

QUESTION PRESENTED 1. In Texas, the doctrine of collateral estoppel bars a party from relitigating issues in a subsequent action if three elements are met: (1) the issues were fully and fairly litigated; (2) the issues were essential to the judgment; and (3) the parties were cast adversaries. Farmers asserts that Abraham is collaterally estopped from relitigating damages in the UIM claim after a jury determined liability and damages against the drivers. Will the doctrine of collateral estoppel bar Abraham from relitigating liability and damages? SHORT ANSWER 1.

The court cited Qualitex Co. v. Jacobson Products Co., a case where the Supreme Court forbade the implementation of a per se rule that would deny protection for the use of a single color as a trademark in a particularly industrial context. The court also reviewed whether the Red Sole Mark merited protection as a distinctive mark that had acquired secondary meaning. The District Court noted that since Louboutin had registered the Red Sole Mark with the Patent and Trademark Office this gave rise to a statutory presumption that the mark was valid. The appeals court found in effect that YSL had rebutted the presumption by showing that a single color can never achieve a trademark protection in the fashion industry. Louboutin also failed to show the appeals court that that the secondary meaning of its Red Sole Mark extended to uses in which the sole did not contrast with the upper part of a shoe.

There was no punitive damages received. It was stated, “California law would not extend negligence liability to a manufacturer in this circumstance, and the district court properly awarded summary judgment. For the foregoing reasons, we conclude that the district court properly awarded summary judgment in favor of TASER because the risk of lactic acidosis was not knowable in 2003. Thus, we do not reach TASER’s alternative arguments. AFFIRMED.” Taser International Inc. cannot be held liable, based on the information available at the time, for not issuing warnings that repeated exposure to its product could lead to death, said an appellate court, in upholding dismissal of a 2004 wrongful death lawsuit.

Gates counsel argued that law enforcement lack of sufficient probable cause for a warrant was a fourth amendment violation. The decision of the Trail Courts, was upheld by The Appellate Court. The court used the example of Spinelli v. United States,

Standard 9.04 a defines raw test data and scaled scores as raw information disclosed by clients during examination. Test data are client’s response to test and scaled scores and these information’s have not been released or subjected to analyzing by a third party. The scaled score are the psychologist note during the testing and does not include psychotherapy notes. The revised rules for test data was implemented in 2003 and new rules were added to help client have autonomy over their raw data. Standard 9.04a, test data will be in conjunction with Standard 9.11 for testing materials and both needed to be secured.

Weast, 546 U.S. 49 (2005) to shift the burden of proof from the patentee. That case, espoused the “ordinary default rule” which placed the “risk of failing to prove their claims” on the ‘plaintiffs’. The Court however found that the “ordinary default rule” did not support the Federal Circuit’s conclusion. Schaffer was not a declaratory judgment case and it described exceptions to its burden of proof rule. The Court stated that for the aforementioned reasons declaratory judgement actions like the one at issue in this case were also an exception to the Schaffer rule.

The Supreme Court Decision On several occasions, the Supreme Court has stated its view that ERISA jurisprudence is derived from the common law of trusts. The Supreme Court faulted the Ninth Circuit for failing to adequately consider principles of trust law when it rejected the Employees’ claim for breach of fiduciary duty with respect to the mutual funds added in 1999. Not only is there a duty of “prudence” to select appropriate investment choices at the outset, but the Court held that there is a “continuing duty” to monitor those investment selections to “remove imprudent ones.” The Supreme Court held that the “continuing duty” is separate from the initial duty to choose investments carefully; violation of the “continuing duty” counts as a breach of the fiduciary duty under ERISA. As long as the breach of the “continuing duty” occurred within six years of the filing of the lawsuit, ERISA’s statute of repose does not bar the

Franklin, J. (2000).Three Strikes and You're Out of Constitutional Rights - The Prison Litigation Reform Act's Three Strikes Provision and Its Effect on Indigents, 71 U. Colo. L. Rev. 191. This article hypothesizes that the PLRA Three Strikes provision or law goes against the equal protection element provided for in the Fifth Amendment due process clause and hence, it is constitutionally suspect. The methods used to find information and data to support the hypothesis are qualitative whereby the researcher reviews past documents and records regarding the three strikes provision.

In Arifin v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCAFC 61 (Arifin), the unrepresented appellant failed to comply with rule 36.01(2)(c) of the Federal Court Rules 2011, which required him to state “briefly but specifically, the ground relied on in support of the appeal”.4 Whilst Arifin serves as a reminder that the rules of the court should be equally binding on all parties irrespective of whether or not they have legal representation, the Full Court of the Federal Court in SZRUR v Minister for Immigration and Border Protection[2013] FCAFC 146 (SZRUR) confirmed that the courts have an overriding duty to ensure that a trial is conducted fairly and in accordance with the law. 5 It is brought forward in the above two case laws, 6 that active adjudication is an important tool to promote both fairness and efficiency in administrative justice. In a number of Courts, the adjudicative model has begun to shift from a more traditional, passive approach to one in which decision-makers more actively adjudicate cases and direct the course of the proceedings. As seen in Childrens Court observation7, it was obvious to all that the SRL was oblivious to the court proceedings and how and what was required. This case was towards the final stage of the matter.

Most often, this rule is applied when the confession violates Miranda. Of course, the latter definition is the result of the notorious Miranda v. Arizona, a case infamous for its conflict with the defendant’s knowledge of his own rights (Worrall 2007). The exclusionary rule can be cited in one of three major cases, including those involving: standing, impeachment, and fruit of the poisonous tree (Worrall 2007). First is the role of the exclusionary rule in standing cases. Couch v United States held that one’s knowledge of their Miranda rights is a personal right (Worrall 2007).

Holding: (What rule, definition or standard did the court use to resolve the dispute?) Kirkpatricks ' complaint against Transamerica Insurance Company adequately states a cause of action, in which the court reversed the lower courts decision and remanded the case for further proceedings consistent with the appellate courts

For example, Hobby Lobby sued the government so that they “would not have to provide coverage for contraceptives for its employees” under the Religious Freedom Restoration Act (Strine, 2015, p. 91). They ultimately won their case in Supreme Court. The decision the Supreme Court made in the Hobby Lobby case supported the need for an insurance exchange in the open market. The hurdle then becomes the obstacle some states are posing by not developing exchanges. In

Congress did not intend the FDCA to preempt state law’s inability to warn actions. Wyeth 's argument misinterprets the purpose of the congress on the FDCA. In Skidmore v. Swift & Co., 323 U.S. 134, “Congress has not authorized a federal agency to pre-empt state law directly, the weight this Court accords the agency 's explanation of state law 's impact on the federal scheme depends on its thoroughness, consistency, and persuasiveness.” Therefore, based on these arguments Wyeth should be liable under a state law claim that the label was inadequate and could have altered the label to increase drug safety making use of CBR regulation. In addition, the court has the sight to elucidate federal preemption