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Sunday
Feb152009

Tenth Circuit breaks ranks on Crime Victim’s Rights Act

By Jake Spratt

In In re Antrobus, 519 F.3d 1123 (10th Cir. 2008), the Tenth Circuit Court of Appeals lent its voice to a growing circuit split involving the Crime Victims’ Rights Act of 2004 (“CVRA”).  The CVRA grants enumerated rights to victims of federal crimes, such as the right to speak at sentencing and to be notified of any public hearings.  If a lower court abridges any of these rights, the CVRA specifically grants victims the right to “petition the court of appeals for a writ of mandamus.”  The Tenth Circuit, breaking sharply from the Ninth and Second Circuits before it, held that a victim petitioning for a writ of mandamus under the CVRA must show a “clear and indisputable right” for issuance of the writ.

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Sunday
Feb152009

Tenth Circuit Chooses Textualism Over Functionalism

 By Scott Valent

In Cannon v. Gates, 538 F.3d 1328 (10th Cir. 2008), the Tenth Circuit Court of Appeals held that Section 113(h) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) precluded the Cannons’ (plaintiffs) CERCLA claims against the U.S. Government . The Cannons’ dispute with the Government stemmed from the Government’s long-running delays in cleaning up the Cannons’ property, located near the Dugway Proving Grounds in Dugway, UT, after the Government conducted weapons training exercises on the property during World War II. Because the Government had failed to take action to clean up the hazardous waste that remained on the Cannons’ property, the Cannons filed two claims against the Government pursuant to the Solid Waste Disposal Act  to compel the Government to remove its hazardous waste from their property.

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Sunday
Feb152009

Colorado Supremes Poised to Address Defenses in Colorado’s Premises Liability Statute

By Ben Figa

The debate is heating up in Colorado about whether landholders can claim defenses of comparative negligence, pro rata liability and assumption of risk for injuries prior to 2006.  One published opinion of the Colorado Court of Appeals has said no and two others have said yes.

Colorado’s Premises Liability statute has caused many problems for lawyers, legislators and judges.  Essentially, the invitee-licensee-trespasser distinctions were once recognized at common law, but then the Colorado Supreme Court abandoned the common law classification scheme in favor of the traditional negligence concept.  The state legislature overruled the Colorado Supreme Court by passing the Colorado Premises Liability Act, which retained those common law distinctions.  The statute, when originally written, did not explicitly recognize the defenses of comparative negligence, pro rata liability and assumption of risk.  In 2006, the legislature amended the statute to include those defenses  Although the law is more settled now, the question remains: were those defenses available prior to the 2006 amendment?

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Sunday
Feb152009

Hernandez-Carrera: Deference to Agencies' Interpretations After Supreme Court Decisions

By Amber Blasingame 

Three years after the Court decided National Cable & Telecommunications Ass’n v. Brand X Internet Services, the Tenth Circuit finally weighs-in on deference to agency interpretations subsequent to contrary judiciary interpretations.  545 U.S. 967 (2005).  In Hernandez-Carrera v. Carlson, the Tenth Circuit holds that courts should defer to agency interpretations published subsequent to judiciary opinions, even U.S. Supreme Court interpretations.  547 F.3d 1237 (10th Cir. 2008).  The Tenth Circuit’s decision in Hernandez-Carrera departs from other circuits which have generally held that an earlier Supreme Court interpretation prevails over a subsequent contrary agency interpretation.  Tran v. Mukasey, 515 F.3d 478 (5th Cir. 2008); Thai v. Ashcroft, 366 F.3d 790 (9th Cir. 2004).

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