U.S. Second Circuit - FindLaw

U.S. Second Circuit - The FindLaw 2nd Circuit Court of Appeals Opinion Summaries Blog


Following the Eric Garner and Michael Brown grand jury non-indictments, many of us wondered why grand juries are still hanging around. The Constitution requires only that the federal government use grand juries to indict criminal suspects, and yet 23 states still require the use of these bodies for serious felonies.

The problem is that grand juries are secretive (intentionally so) and not subject to the same protections as, say, preliminary hearings, like the right to counsel and the right to cross-examine witnesses. One prominent jurist wants to change that.

A peculiar bit of appellate procedure attended the issuance of an amended opinion in Garcia v. Does, the "Occupy Wall Street" case in which Occupy protesters claimed they were escorted onto the Brooklyn Bridge by police, then arrested when they were halfway across.

Though the protesters won in federal district court, and again before a three-judge panel of the Second Circuit, that same panel reversed itself Monday. The panel remanded the case to Judge Jed Rakoff with instructions to dismiss the complaint, dissolving the en banc rehearing before it started.

So-called anti-vaxxers believe that vaccination is harmful, as vaccines contain harmful "chemicals." A resurgence in once long-gone diseases is arguably attributable to a new wave of parents who refuse to vaccinate their children.

The problem is that many public school districts require children to be vaccinated before they can attend school. Because, you know, a parent's decision not to vaccinate actually has consequences for other children. But just ignore all that. An anti-vaccine case hit the Second Circuit Court of Appeals -- and, predictably, the anti-vaxxers lost.

From the 2nd Cir.: Top 10 Blog Posts of 2014

Y'all are nasty. Just kidding. But you do like nasty blog topics. (We all do.)

Need proof? Here are the 10 most popular blog posts from FindLaw's U.S. Second Circuit blog for the past year. The docket includes incest, sprayed feces, oral suction during circumcision, plus a litany of other topics that I have no interest in because, well, I'm nasty too.

Here's the big list:

Back in July, Microsoft lost a battle to protect data stored on Irish email servers, wholly owned and controlled by Microsoft, from the U.S. Justice Department. All we know about these email MacGuffins is that they have something to do with drugs.

Appealing to the Second Circuit Court of Appeals, Microsoft argues that, because the magnetic particles comprising the data are physically located in Ireland, those particles -- and the data they represent -- are protected by Irish and European privacy laws, meaning Microsoft can't be compelled to turn them over.

2nd Cir. Massively Limits Insider Trading Prosecutions

The Second Circuit called it "doctrinal novelty." Others might have called it made-up law.

The U.S. Attorney's Office for the Southern District of New York, led by Preet Bharara, called it insider trading despite increasingly tenuous connections between the traders and the tipsters, and a complete and utter lack of proof that the traders knew that the tippers benefited from the trades.

In short, it was a crime without a mens rea. The USAO stretched insider trading prosecutions as far as they could possibly go -- until the Second Circuit snapped back.

Bernie Madoff just won't stop popping up everywhere. As you'll recall, the disgraced investor was sentenced to 150 years in prison for defrauding clients out of about $18 billion in a Ponzi scheme that lasted almost 20 years.

What remained of Madoff's company was placed under the control of a trustee, Jean Luc Irving H. Picard. Picard's job is to recover as much as he can, however he can, and attempt to compensate investors who lost money.

Faster than you can say "engage," customers who profited on the scheme decided they wanted to keep those profits.

In October, the Nonhuman Rights Project, a legal advocacy group for chimpanzees, argued that a 26-year-old chimp named Tommy should be recognized as a "person" under New York law and granted a writ of habeas corpus.

Chimps, the group argued in a 65-page brief submitted to the New York Supreme Court Appellate Division last March, share genetic information as well as cognitive skills with humans. They understand language and use tools. Chimps trained in American Sign Language can even teach other chimps how to sign. For all these reasons and more, the Nonhuman Rights Project argued that Tommy should be released from his cage.

The Supreme Court yesterday denied a petition for a writ of certiorari in a case that's been going on since 2008, pitting a real estate developer against the owner of the World Trade Center site to figure out who was going to pay for cleanup costs related to the September 11 attacks.

When the real estate developer, Cedar & Washington, wanted to renovate an office building in downtown New York, the state Department of Environmental Conservation and the EPA told the developer the building might contain "WTC dust," consisting of fine particles of concrete along with hazardous substances like lead, mercury, and asbestos that settled in and on the building following the destruction of the World Trade Center towers in 2001.

Michael Lewis' nonfiction book The Big Short, published in 2011, chronicled the 2008 financial crisis as seen through the eyes of some of the people involved in it, including the hedge fund managers who "shorted" (bet against) the market.

In one chapter of the book, Steven Eisman, one of Lewis' sources, meets Wing Chau, the owner of an investment firm that managed collateralized debt obligations (CDOs). CDOs were investments comprised of portions of thousands of subprime mortgages; they were a key vector for the financial collapse.