Friday, May 01, 2009

Of Hamilton's nomination to CA7

Within the article “Hamilton sails through 2nd hearing”, one has

Instead, Coburn asked Hamilton about his view of using international law as guidance and about a comment he had made about judges writing the footnotes to the Constitution. Hamilton said he was making the point that judges are not trying to do something new, but are applying old principles and constitutional provisions to new situations.

In Dearborn v. Prescott, 486 F. Supp. 2d 802, Judge Hamilton got into trade secret issues and covenants not to compete.

 Under Indiana law, in the absence of genuine trade secrets that would be useful far beyond the scope of the employee's own responsibilities, geographic and customer restrictions on a departing salesman must ordinarily be no broader than the scope of the employee's former responsibilities. The use of territorial boundaries is only one method of limiting the scope of a covenant not to compete, and when a covenant not to compete contains a restraint which clearly defines a class of persons with whom contact is prohibited, the need for a geographical restraint is decreased. The limits, whether in terms of geography or customers, must be reasonably congruent with the employer's protectable interest.
 Under Indiana law, when an employer drafts an overly broad covenant no to compete, the price of over-reaching is that the restriction cannot be enforced at all, even if it would have been possible to draft and enforce a narrower, more reasonable restriction. If the covenant is not reasonable as written, the court may not create a reasonable restriction under the guise of interpretation, as this would subject the parties to an agreement they had not made.
 Under Indiana's "blue pencil" rule, if a covenant not to compete is clearly separated into parts, and if some parts are reasonable and others are not, the contract may be severed or "blue penciled" so that the reasonable portions may be enforced. If the covenant is clearly separated into parts and some parts are reasonable and others are not, the contract may be held divisible. Such efforts to save a covenant are limited to applying terms that already exist in the contract; the court may not add terms.
 Indiana law generally enforces contractual provisions that specify a choice of law, at least in commercial and other settings where the parties have comparable bargaining power, and where the chosen state has some connection to the parties' relationship, but Indiana will not enforce a contractual provision, including a choice of law provision, if enforcement would be contrary to Indiana's public policy. Another state's law is not contrary to Indiana public policy merely because the result would be different. A court's own scheme of legislation may be different, and the court may even have no legislation on the subject, but that is not enough to show that public policy forbids the court to enforce the foreign right. A right of action is property. If a foreign statute gives the right, the mere fact that the court does not give a like right is no reason for refusing to help the plaintiff in getting what belongs to him. The court is not so provincial as to say that every solution of a problem is wrong because the court deals with it otherwise at home.

A better known case by Judge Hamilton is HINRICHS v. BOSMA, 400 F. Supp. 2d 1103, which has the line The practice of the Indiana House shown by the evidence here amounts in practical terms to an official endorsement of the Christian religion and violates the Establishment Clause.

**Also on "footnotes," in the context of picking Justice Souter's replacement:

"I will seek someone who understands that justice isn't about some abstract legal theory or footnote in a casebook," Obama said Friday. "It is also about how our laws affect the daily realities of people's lives, whether they can make a living and care for their families, whether they feel safe in their homes and welcome in their own nation."

**Some people have suggested that Obama's nomination of Hamilton may inform Obama's selection process to replace Justice Souter. Elsewhere at politico:

Others possible contenders for Obama include:

—Kagan, 49, formerly dean of Harvard Law School. She served as deputy domestic policy adviser in President Clinton’s White House. Clinton nominated her to the D.C. Circuit in 1999 but she never got a hearing. Considered liberal, but perhaps not as liberal as others. Made a point to reach out to conservatives while at Harvard. [IPBiz: separately, at Harvard during Tribe plagiarism business.]

—. Wood, 58, was also an associate dean at University of Chicago Law School. Considered a moderate.

—Kathleen Sullivan, 53, a professor and former dean at Stanford Law School. A Constitutional law expert, she has argued several cases before the Supreme Court and formerly taught at Harvard Law. Considered a liberal.

—Harold Koh, 54, dean of Yale Law School. He is currently Obama’s nominee to be the chief legal adviser at the State Department, but his nomination has encountered heavy opposition from Republicans. Also considered a liberal pick.

—Cass Sunstein, 54, an Obama friend from the University of Chicago Law School and Obama’s nominee to run the White House Office of Information and Regulatory Affairs. He once clerked for Supreme Court Justice Thurgood Marshall. Considered a moderate.

-- Ann Williams, 59, sits on the U.S. Court of Appeals for the Seventh Circuit. An African-American woman, she could be tough for Republicans to oppose because she was first appointed as a federal district court judge in 1985 by Reagan. Clinton elevated her to the appeals court. Considered a moderate.

**Separately, of “Biden as bozo the bloviator”

Q: What about airplanes — aren't airline cabins breeding grounds for germs?
A: Vice President Joe Biden suggested he believes that when he said Thursday [30 April 09] he has advised his family not to fly. The federal Centers for Disease Control and Prevention advises against going to Mexico, the country hardest hit by swine flu. And public health officials say people with flu symptoms should avoid public transportation. But they aren't telling healthy people to avoid all air travel, and Obama administration representatives later said Biden had misspoken.
Most modern airliners have air filtering systems that are as efficient at weeding out germs as those used in hospital isolation units. While there have been occasional infectious disease outbreaks associated with airplane travel, they're not common, and generally only people within a few rows of the sick individual have gotten sick.
"We shouldn't go overboard" on limiting air travel, said Dr. Mark Dworkin, an infectious disease specialist at the University of Illinois at Chicago. But he said it's a good idea to check the CDC's Web site before making travel plans because the agency's advisories may change as the outbreak develops.

[from LINDSEY TANNER, AP Medical Writer in an article which included misstatements by Biden AND Paris Hilton]

See also

Pondering confusions: Biden vs. Britney

**HOWEVER, United Airlines goes to Boston because of passenger-->

Rahsaan Johnson, a United Airlines spokesman, said the woman had reported symptoms that were "indicative of the flu or severe cold." He said the flight crew radioed for advice to a United medical team and were advised to get her immediate medical treatment. Local television stations broadcast footage of a woman wearing a blue mask being led off the plane by emergency personnel.

The incident happened at a time of worldwide concern about the spread of the swine flu.

But Johnson said the diversion was for the woman's health and safety. "In this case, the medical professionals thought that she should get immediate care," he said.

Asked if there was any chance that the woman could have infected others on the plane, Johnson had no comment. Asked if officials were concerned about the possibility, he said, "There is never a time that we're not concerned with the health of of all of our customers."

"Based on what the crew knew of this customer's symptoms and based on what United [ground-based medical experts] knew, we thought taking the plane to Boston was the best course of action," he said.


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