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Robert Abell
Lexington, Kentucky
"Lets have faith that right makes might; and in that faith let us, to the end, dare to do our duty as we understand it." - Abraham Lincoln
Interests: Nothing on this blog is legal advice, and it shouldn't be taken as legal advice. This blog is free; legal advice you have to pay for. My purpose is to discuss events, cases and other things that seem important. I invite comments, although I may delete them because they are offensive to me, idiotic or any other reason I happen to think of.
Recent Activity
President Obama played a significant historical role by commuting the sentences of some 1,715 federal inmates, more than the previous seven Presidents combined. Unfortunately, significant bipartisan legislative reforms were shelved, although there is some optimism that the present Congress will act: Criminal Justice Reform Is Ripe for Bipartisan Achievement. Don't hold your breath; this is an issue that demands Presidential... Continue reading
Posted Feb 14, 2017 at ... and Justice for All
Judge Neil Gorsuch the nominee for the Supreme Court has, by any measure, very impressive if not impeccable credentials and qualifications, at least as far as degrees and awards and things of that nature go. Clearly, he is a hard worker and a high achiever, and, among other things, has worked to cultivate his standing in Republican legal circles. His... Continue reading
Posted Feb 4, 2017 at ... and Justice for All
Defendants facing supervised release revocation have a due process right that includes an "opportunity to be heard in person and to present witnesses and documentary evidence." Morrissey v. Brewer, 408 U.S. 471, 489 (1972). Put even better by the Ninth Circuit, the right requires "that a supervised releasee receive a fair and meaningful opportunity to refute or impeach the evidence... Continue reading
Posted Jan 30, 2017 at ... and Justice for All
The Supreme Court ruled long ago that a defendant in probation or parole revocation proceedings had due process rights that would include the "opportunity to be heard in person and to present witnesses and documentary evidence." Morrissey v. Brewer, 408 U.S. 471 (1972). The Court admonished that the process right was not static, fixed or categorical: "It has been said... Continue reading
Posted Jan 29, 2017 at ... and Justice for All
Bad facts made bad law. Sometimes the bad law is so bad that it, as a practical matter, will spread like waves and ripples from a boulder into a pond. So it is with the Sixth Circuit's recent decision in... Continue reading
Posted Jan 19, 2017 at Kentucky Employment Law Blog
The Sixth Circuit's decision earlier this year in Jackson v. VHS Detroit Receiving Hospital offers an excellent example of the correct analysis of comparator proof in discriminatory discipline cases. Judge Eric Clay's opinion shows the type of care and attention... Continue reading
Posted Dec 28, 2016 at Kentucky Employment Law Blog
The Sarasota Herald-Tribune's project on racism in Florida's criminal justice system focuses on Florida's Treasure Coast, Tough on Crime: Black Defendants Get Longer Sentences In Treasure Coast System, which includes its 19th Judicial Circuit, Martin County, and Judge Sherwood "Chip" Bauer. Judge Bauer it is reported: Since taking the bench a decade ago, Bauer has been tougher on those with... Continue reading
Posted Dec 13, 2016 at ... and Justice for All
The Sarasota Herald-Tribune has undertaken and published a comprehensive and alarming review of sentencing in criminal cases in that state: Florida's Broken Sentencing System. A key and central conclusion: Now, prejudice wears a black robe. Half a century after the civil rights movement, trial judges throughout Florida sentence blacks to harsher punishment than whites, a Herald-Tribune investigation found. They offer... Continue reading
Posted Dec 12, 2016 at ... and Justice for All
Gov. Bevin spent about an hour this morning at a press conference describing and discussing the total and complete success that was his first year in the Governor's office. Jack Brammer reports in the Lexington Herald-Leader, Bevin Finds No Failures In His First Year as Governor. I feel better. And for some reason, perhaps having also to do with soon... Continue reading
Posted Dec 9, 2016 at ... and Justice for All
The answer it appears is "yes," according to a story by Andrew Wolfson in the Courier-Journal, U of L Pays $1M to Two Under FBI Investigation. And so it goes. Robert L. Abell Continue reading
Posted Dec 9, 2016 at ... and Justice for All
I can't improve on the title so I used it; see Jared Bernstein's article at The assessment is harsh, but the gist of the decision is the Labor Department fundamentally has misunderstood under both Democratic and Republican Presidents the... Continue reading
Posted Dec 6, 2016 at Kentucky Employment Law Blog
The University of Kentucky's ongoing suit with its own newspaper, the Kentucky Kernel, is the subject of a report in yesterday's New York Times: Campus Press vs. Colleges; Kentucky Suit Highlights Free-Speech Fight. And so it goes. Robert L. Abell Continue reading
Posted Dec 5, 2016 at ... and Justice for All
President Obama announced the commutation of 98 more federal sentences on Thursday continuing the President's efforts to mitigate the misguided harshness of federal criminal sentencing imposed before reforms in recent years. There are numerous reports in the Washington Post, USA Today, Huffington Post, Bloomberg Politics, and The Hill. Many of the commuted sentences had to do with crack cocaine offenses,... Continue reading
Posted Oct 28, 2016 at ... and Justice for All
Charles Hickman, the chairman of the Pikeville-Pike County airport board, got upset about some mean things that had been posted anonymously about him on the local Topix site. He filed a defamation suit and sought to compel Topix to disclose the identities of the anonymous posters. The case came to the Kentucky Supreme Court on the issue of what Hickman... Continue reading
Posted Oct 11, 2016 at ... and Justice for All
The DEA had a good day in Almherst, Massachusetts: it conducted a successful raid of an 81 year old woman's garden and recovered a single as in one marijuana plant. See Cops Raid an 81-Year-Old Woman's Garden for a Single Marijuana Plant. Because they could, I guess. And so it goes. Robert L. Abell Related articles Racial Preference Explicitly... Continue reading
Posted Oct 10, 2016 at ... and Justice for All
Truck drivers are often perhaps usually exempted from overtime pay requirements by the federal Motor Carrier Act (MCA). But a recent Fifth Circuit decision, Olibas v. Native Oilfield Services, shows the limits of that exemption, and the perils an employer... Continue reading
Posted Oct 10, 2016 at Kentucky Employment Law Blog
Roy Moore, the Chief Justice of the Alabama Supreme Court, was suspended from office without pay by the Alabama Court of the Judiciary for, well, for refusing to follow the law of the land and for ordering lower court judges in Alabama to violate and/or ignore the law. The whole thing has to do with the Supreme Court's ruling last... Continue reading
Posted Oct 2, 2016 at ... and Justice for All
Malicious prosecution claims are among the oldest of tort claims under Kentucky law; the law reports discuss them nearly all the way back to when Kentucky became a state. See Frowman v. Smith, 16 Ky. 7 (Ky. 1800): "A person discharged from a prosecution for felony, without a trial on the merits, cannot, in an action for malicious prosecution, require... Continue reading
Posted Sep 23, 2016 at ... and Justice for All
Federal inmates who had their sentences enhanced as career offenders under the United States Sentencing Guidelines prior to 2005 had a door opened for relief by the Sixth Circuit in Hill v. Masters, No 15-5188 (September 7, 2016). The petitioner, Mark David Hill, was sentenced under the then-mandatory 2001 sentencing guidelines manual. Two prior felony convictions in Maryland caused Hill... Continue reading
Posted Sep 16, 2016 at ... and Justice for All
A "file review" by a medical professional labeled "independent" by the insurance company is often a part of disability insurance claims process. The Sixth Circuit recently considered the strengths and weaknesses of such a "file review" in Okuno v. Reliance... Continue reading
Posted Sep 12, 2016 at Kentucky Employment Law Blog
Reliance Standard, as do many disability insurers, has a mental and nervous disorders limitation that restricts payment of disability insurance benefits to 12 months where a claimant's disability is "caused by, " "contributed to by," or "resulting from" mental or... Continue reading
Posted Sep 11, 2016 at Kentucky Employment Law Blog
Evidence is evidence. That unremarkable observation is at the heart of the 7th Circuit's remarkable opinion in Ortiz v. Werner Enterprises in which it endeavors to simplify the evidence doctrines that "has complicated and sidetracked employment discrimination litigation for many... Continue reading
Posted Aug 26, 2016 at Kentucky Employment Law Blog
In an unusual twist, the University of Kentucky has filed suit against its own newspaper, the student-run Kentucky Kernel. See University to Sue Kernel. The Kernel sought via the Kentucky Open Records Law documents concerning a sexual harassment complaint by a student against a former faculty member and related investigation. The Kentucky Attorney General Andy Beshear ruled that the records... Continue reading
Posted Aug 9, 2016 at ... and Justice for All
Is a trial court judge still a trial court judge if there are no trials in the judge's court? No wonder they are called U.S. District Court judges. Judge Jesse Furman, judge in the U.S. District Court for the Southern District of New York, has had one criminal jury trial in four plus years on the bench. The New York... Continue reading
Posted Aug 8, 2016 at ... and Justice for All
As part of President Obama's continuing historic and appropriate efforts to leaven the harsh stupidity of the federal criminal justice system the sentences of 214 federal inmates were commuted yesterday. There is widespread coverage: Bloomberg News, Washington Post, USA Today and Politico being a few, and an encouraging statement from White House Counsel to the President Neil Eggleston on the... Continue reading
Posted Aug 5, 2016 at ... and Justice for All