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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
Thus begins the Sixth Circuit's decision in Bray v. Planned Parenthood, 746 F.3d 229 (6th Cir. 2014), a case that illustrates how the doctrine of qualified immunity has been bent by the Sixth Circuit and other courts to sanction the abuse of some while insulating outrageous abuses of power from redress or accountability. The individuals whose conduct was thus described... Continue reading
Posted Jun 9, 2020 at ... and Justice for All
Our senior Senator, Mitch McConnell, has taken up the cause of an admitted liar and, along with other Republican Senators, filed a brief on the liar's behalf. The disgraced Michael Flynn is the beneficiary of this effort. Here's the Brief; read it and choke on it. Who knew these Senators had so much concern and time to take up for... Continue reading
Posted Jun 4, 2020 at ... and Justice for All
Former NBAer and UK basketball star Rex Chapman, on first thought, would seem an unlikely candidate to pen such a powerful essay on race in America. But he's done it: "Injustice, double standards and heartbreaking bigotry." He's seen what he's seen and shared it well. Robert L. Abell Continue reading
Posted Jun 3, 2020 at ... and Justice for All
Marty Smith was convicted in 2006 of participating in a crack cocaine conspiracy involving more than 50 grams. He had a prior felony drug conviction and so, based on the amount of crack cocaine involved, was 20 years. The United States Sentencing Guidelines, at the time, prescribed a sentencing range of 168-210 months, which, of course, was trumped by the... Continue reading
Posted May 18, 2020 at ... and Justice for All
Dennis Willard, by the account offered by the Sixth Circuit, is "a successful, veteran car salesman," who ranked in the top 125 of Ford's 3,500 national salesforce. He was 63, when he was fired, and probably it could be found... Continue reading
Posted Apr 6, 2020 at Kentucky Employment Law Blog
The Sixth Circuit's recent decision in Torres v. Vitale, which was discussed in a prior post, RICO Claims Can Arise from Wage Theft Scheme, Sixth Circuit Rules, implicated the doctrine of preclusion, a judicially-fabricated doctrine unmoored from and contradictory to the text of the laws involved, the Fair Labor Standards Act (FLSA) and RICO. Preclusion is an example of courts... Continue reading
Posted Apr 2, 2020 at ... and Justice for All
Employees at Vitale's Italian Restaurants kept two timecards, "one reflecting the first forty hours of work, and the other, reflecting overtime hours. The employees were paid via check for the first card and via cash for the second. The pay... Continue reading
Posted Apr 1, 2020 at Kentucky Employment Law Blog
As discussed in the prior post, Healthcare Fraud and the Ordeal of Dr. Richard Paulus; Part I, the Sixth Circuit reinstated the healthcare fraud convictions of Dr. Richard Paulus, the court concluding that the statistical evidence presented by the government's experts indicated a disproportionate tendency amounting to a "lengthy pattern" by Dr. Paulus to overstate the arterial blockage indicated by... Continue reading
Posted Apr 1, 2020 at ... and Justice for All
Angiograms are medical tests that measure the extent of a patient's arterial stenosis (put plainly: the degree of blockage of the heart arteries). For instance, a cardiologist reviewing an angiogram could conclude the patient had 60% blockage. But angiograms, as a matter of course, are subject to widely varying interpretations: one cardiologist may conclude a blockage of 60%, while another... Continue reading
Posted Mar 31, 2020 at ... and Justice for All
The Department of Justice and the Solicitor General's office represent the United States government in criminal cases in the Supreme Court. But there is no similar office that represents criminal defendants before or in the Supreme Court. Does this absence raise an impediment to equal justice under law? A good case for a Defender General's office is made by two... Continue reading
Posted Mar 16, 2020 at ... and Justice for All
In an opinion straining at the bit to express hostility toward the Americans With Disabilities Act (ADA) as mildly as possible, the Sixth Circuit suggested that it is ready to re-examine its subjective intent requirement in constructive discharge cases. The... Continue reading
Posted Mar 9, 2020 at Kentucky Employment Law Blog
The proposed and advisory sentencing range for Roger Stone indicated by the United States Sentencing Guidelines is too long, something not at all unusual since the sentencing guidelines almost always propose a sentence that is too long, which rarely if ever keeps the Department of Justice from arguing for a sentence consistent with those guidelines. That's what makes Roger Stone's... Continue reading
Posted Feb 13, 2020 at ... and Justice for All
"The Road to Real Criminal Justice Reform Goes Through Public Defenders" is the article in Esquire and it reports on a report published by the Brennan Center, A Fair Fight. Robert L. Abell Continue reading
Posted Jan 21, 2020 at ... and Justice for All
The Sixth Circuit has ruled that Title IX liability requires "proof that a school had actual knowledge of actionable sexual harassment, and that the school's deliberate indifference to it resulted in further actionable sexual harassment against" the complaining student in Kollaritsch v. Michigan State Board of Trustees. This resulted in the dismissal of four students' claims. The Court took pains... Continue reading
Posted Dec 16, 2019 at ... and Justice for All
Last year JPMorgan Chase reached a $24 million settlement in a race discrimination case in which financial advisors claimed that "the bank practiced “uniform and national in scope” discrimination against African-American financial advisors, such as assigning them to poorer bank... Continue reading
Posted Dec 11, 2019 at Kentucky Employment Law Blog
Breathalyzers, which purport to measure a person's blood-alcohol content, are the cornerstone of nearly all DUI prosecutions, certainly in Kentucky. A refusal to take a Breathalyzer test results in loss of your drivers license for 6 months. But are Breathalyzer tests reliable and accurate? A study conducted by the New York Times has revealed that Breathalyzers, which are "found in... Continue reading
Posted Nov 4, 2019 at ... and Justice for All
Senators Chuck Grassley (R - Iowa) and Dick Durbin (D - Illinois) have introduced the Prohibiting Punishment for Acquitted Conduct Act of 2019, which would bar federal judges from considering conduct/acts that underlay charged crimes for which a defendant was found not guilty or which was dismissed by motion. There is a press release from Senator Grassley's office. The United... Continue reading
Posted Oct 2, 2019 at ... and Justice for All
Actress Felicity Huffman, who paid a big pile of money to have her daughter's SAT scores faked so the daughter could be admitted to a more desirable university, received a sentence for her honest services fraud conviction of two weeks in jail, a $250,000 fine and 250 hours of community service. Also, an avalanche of embarrassment and humiliation although the... Continue reading
Posted Sep 17, 2019 at ... and Justice for All
A defendant reached a plea agreement with the government in which it promised to argue at sentencing for a sentence within the sentencing guidelines range computed in the plea agreement. But at the sentencing hearing the government double-crossed the defendant and argued for a higher sentence and then, apparently realizing what had been done, attempted to backtrack only to have... Continue reading
Posted Sep 11, 2019 at ... and Justice for All
A guy in a marijuana patch realizes that he’s been found out and the cops are closing in; he takes a wild swing with a shovel and tries to flee on foot but apparently not being fleet of foot is caught. From such modest origins comes the question: was the swing and miss with the shovel a use of violence... Continue reading
Posted Aug 6, 2019 at ... and Justice for All
Sometimes the law yields a good story of redemption and persistence. Calvin Duncan, who served some 23 years at Louisiana's Angola State Penitentiary and became a renowned jailhouse lawyer is profiled in the New York Times: A Relentless Jailhouse Lawyer Propels A Case to the Supreme Court. Remember, every now and then although not as often as one might reasonably... Continue reading
Posted Aug 5, 2019 at ... and Justice for All
The New York Times reports, At Long Last, A Measure of Justice for Some Drug Offenders, that more than 1000 federal inmates have had their sentences reduced and been released as a result of the First Step Act enacted last December. Nearly all of these individuals had been sentenced to draconian and morally wrong sentences involving crack cocaine offenses. An... Continue reading
Posted Jun 12, 2019 at ... and Justice for All
A good and I think accurate analysis of the factors driving Paul Manafort's sentence imposed the other day is offered at by Los Angeles criminal defense lawyer Ken White: 6 Reasons Paul Manafort Got Off So Lightly. And so it goes. Robert L. Abell Continue reading
Posted Mar 9, 2019 at ... and Justice for All
Whether a worker is an employee or an independent contractor is a threshold question with regard to overtime: employees have to be paid overtime and independent contractors do not. The Sixth Circuit uses what it calls the "economic reality" test... Continue reading
Posted Mar 4, 2019 at Kentucky Employment Law Blog
Workers at New York City area car washes have recovered about $8.5 million in a wage theft case, the New York Times reports, A Multi-million Dollar Payoff at the Carwash. A musical tribute: Every now and then the little guys... Continue reading
Posted Feb 24, 2019 at Kentucky Employment Law Blog