Graham v. Dunkley is a lone wolf

In Traitouros v. Goldstein et al., Justice Anthony Parga of Nassau County declined to follow Graham v. Dunkley, 2006 WL 2596327 (Sup. Ct. Queens County), which held that 49 USC 30106 was an unconstitutional exercise of the Commerce Clause. Traitouros followed Kuryla v. Halabi, 39 AD3d 485 (2d Dept., 2007) (http://www.nycourts.gov/reporter/3dseries/2007/2007_02895.htm) in holding that the Graves Amendment (preempting VTL section 388) is constitutional -- and dismissing a claim against a lessor based on vicarious liability. Traitouros was decided October 23, 2007.

Thank you to Robert M. Conti of the Bee Ready firm (http://www.beereadylaw.com/) for bringing this decision to my attention.

Clarence Darrow returned to Buffalo

The opening meeting of the Charles S. Desmond Inn of Court saw a return of "Clarence Darrow: A Search for Justice." The two hour presentation in the ceremonial courtroom was an energy-filled and well-researched re-enactment of some of Darrow's infamous closings and narrative about his life and career. "I laughed. I cried. It was better than Cats!"

Pictured here with Clarence and ABL are several Desmond Officers, Mary Wydish (President of WNYTLA), Frances M. Letro, and Robert Brucato (Counsel Press) -- all of whom generously co-sponsored this event.

Federalist Society hosted innaugural luncheon

Professor John Yoo of Boalt Hall was the inaugural speaker for the Buffalo Chapter of the Federalist Society. He discussed the Schlesinger anecdotal study of Presidential greatness and a more recent survey of college professors on the same topic. The "top ten" lists for both studies were remarkably consistent, with the exception of the recent study, which listed Reagan as no. 8. The top three are Washington, Lincoln, and FDR. Other top ten Presidents are Truman, Jefferson, and Jackson. Professor Yoo has written that "great" Presidents are often those Presidents who take an aggressive or expansive view of Presidential power (with the example of the counterthesis being Nixon). Jefferson made the Louisiana purchase despite a lack of Constitutional authority to do so. Jackson ignored the Supreme Court's ruling in McCulloch v. Maryland to veto the national bank. The event was well attended and the FS looks forward to promoting debate on legal issues. Professor Yoo later gave the 25th Frank J. Raichle presentation, which has included a number of Supreme Court Justices including Justices Rehnquist (as Chief), Scalia, O'Connor, White, and Ginsburg while she was on the DC Cir.

BOTW - Wait A Second

Too much litgation - ridiculous!

"Judges and lawyers often complain that the courts are inundated with a flood of litigation, but the fact remains that litigation is as American as apple pie." von Bulow by Auersperg v. von Bulow, 657 F.Supp. 1134, 1143 (S.D.N.Y. 1987).

BOTW - Tillers on Evidence

2d Cir. affirms exclusion of expert under Daubert

. . . because he never examined the subject machines, reviewed any relevant literature, or obtained an exemplar machine upon which to conduct testing -- rendering his opinions "not reliable" because they were not "grounded on sufficient facts or data." LaBarge v. Joslyn Clark Controls, Inc., 2007 WL 2788253 (2d Cir. Sept. 26, 2007), affirming on other grounds Judge Skretny's decision published at 2006 WL 2795612. Consequently, SJ was awarded in favor of the Ds.

Judge Elfvin to retire

It is a sad day in the WDNY. Judge Arcara announced at the Bench & Bar dinner that Judge Elfvin will be retiring as of October 5, 2007. Judge Elfvin will be missed and his departure will strain caseloads that are already among the highest per judge in the circuit.

Judge Elfvin is pictured here with his clerk family at his 30th anniversary celebration.