Under California Business and Professions Code Section 2400, a corporation or other artificial legal entity (e.g., LLC), may not practice medicine (a California professional corporation is exempt from this prohibition). As a result of this ban on the corporate practice of medicine (“CPM” and the “CPM Ban”), corporate entities in California may not typically employ physicians to treat patients on the corporation’s behalf (subject to certain exceptions). Similarly, it is also illegal for an individual to practice medicine without a license.
A California Attorney General Opinion reviewed an unlawful arrangement where a management services organization ( “MSO”) selected, scheduled and paid for diagnostic services ordered by the MSO’s physicians for their patients. The opinion noted that while each of the above tasks could be viewed as purely commercial in nature, they also take into account salient clinical variables, such as the type of equipment needed for the patients. According to the this opinion, only a physician can do this.
California courts have also stated that the law does not divide the medical profession into business side that may be conducted without a license or by a corporation, and a professional side that requires a license and is subject to the CPM Ban. MSOs and similar organizations must tread with extreme caution to ensure that services offered to physicians do not cross over into clinical decisions. While courts have not identified a clear dividing line, actionable conduct by an MSO or similar non-clinical entity has been found when the entity exercised control or made decisions that touched on areas requiring clinic training (e.g., selecting medical equipment). Nevertheless, there are no reported cases or Attorney General opinions regarding CPM violation by MSOs that provided purely commercial services, such as billing and collections.
As a corollary to the CPM Ban and the licensure requirement, it is also unlawful to aid or abet any unlicensed person, including a corporation, in the practice of medicine. In Steinsmith v. California Medical Board, the Court held a physician was guilty under Section 2264 because he was employed by a medical clinic, the ownership of which included in part non-physicians. That the non-physician owners never engaged in any patient care did not prevail in this decision.
In its October 1996 Action Report, the MBC described an enforcement action it took under Section 2264. A physician obtained fictitious name permits to operate surgery clinics, and contracted with an MSO, ostensibly, to provide management services to the clinics. The physician then saw patients and conducted surgery at the clinics one day a week. The MSO paid the physician a set amount based upon physician fees. The MBC found that the physician was aiding and abetting the MSO in the unlicensed practice of medicine and revoked the physician’s license.
If a physician employs or contracts with nurse practitioners (“NPs”) or physician assistants (“PAs”), the physician must properly supervise these mid-level practitioners to avoid liability under Section 2264. With respect to NPs, a physician: (1) may only supervise four at any one time, and (2) must develop written standardized protocols and procedures in order to allow the NP to furnish drugs or medical devices to patients. With respect to PAs, a physician must exercise control by one or more of the following: (1) examination of the patient the same day care is given to the patient by the PA; (2) countersigning and dating all medical records written by PA within 30 days; or (3) review, countersign, and date a minimum 5% sample of medical records written by the PA.
 Cal. Bus. & Prof. Code § 2052.
 83 Ops. Cal. Atty. Gen. 170 (2000).
 Id; see also Marik v. Superior Ct., 191 Cal. App. 3d 1136, 1140 (1987).
 See Garvai v. Bd. of Chiropractic Examiners, 216 Cal. App. 2d 374 (1963); Parker v. Bd. of Dental Examiners of State of Cal., 216 Cal. 285 (1932).
 83 Ops. Cal. Atty. Gen. 170 (2000); Marik v. Superior Ct., 191 Cal. App. 3d 1136, 1140 (1987).
 Cal. Bus. & Prof. Code § 2264.
 Steinsmith v. Medical Bd. of Ca., 85 Cal. App. 4th 458, 466 (2000).
 Medical Board of California, Who is Responsible for Medical Decisions? The Prohibition Against the Corporate Practice of Medicine, Action Report (Oct. 1996).
 Cal. Bus. & Prof. Code § 2836.1.


text:
L. Andreis, A. Asselah, P. Dai Pra , Ergodicity of a system of interacting random walks with asymmetric interaction, Preprint no. arXiv:1702.02754, Cornell University Library, arXiv.org, 2017.
L. Andreis, P. Dai Pra, M. Fischer, McKean--Vlasov limit for interacting systems with simultaneous jumps, Preprint no. arXiv:1704.01052, Cornell University Library, arXiv.org, 2017.
L. Andreis, F. Polito, L. Sacerdote, On a class of time-fractional continuous-state branching processes, Preprint no. arXiv:1702.03188, Cornell University Library, arXiv.org, 2017.
L. Andreis, D. Tovazzi, Coexistence of stable limit cycles in a generalized Curie--Weiss model with dissipation, Preprint no. arXiv:1711.05129, Cornell University Library, arXiv.org, 2017.
A. Bayandina, P. Dvurechensky, A. Gasnikov, F. Stonyakin, A. Titov, Mirror descent and convex optimization problems with non-smooth inequality constraints, Preprint no. arXiv:1710.06612, Cornell University Library, arXiv.org, 2017.
P. Dvurechensky, A. Gasnikov, A. Lagunovskaya, Parallel algorithms and probability of large deviation for stochastic optimization problems, Preprint no. arXiv:1701.01830, Cornell University Library, arXiv.org, 2017.
P. Dvurechensky, A. Gasnikov, A. Tiurin, Randomized similar triangles method: A unifying framework for accelerated randomized optimization methods (coordinate descent, directional search, derivative-free method), Preprint no. arXiv:1707.08486, Cornell University Library, arXiv.org, 2017.
P. Dvurechensky, S. Omelchenko, A. Tiurin, Adaptive similar triangles method: A stable alternative to Sinkhorn's algorithm for regularized optimal transport, Preprint no. arXiv:1706.07622, Cornell University Library, arXiv.org, 2017.
P. Dvurechensky, Gradient method with inexact oracle for composite non-convex optimization, Preprint no. arXiv:1703.09180, Cornell University Library, arXiv.org, 2017.
J. Fuhrmann, K.S. Scheliga, H. Pampel, H. Bernstein, B. Fritzsch, ET AL., Helmholtz Open Science Workshop ``Zugang zu und Nachnutzung von wissenschaftlicher Software'', Report, Deutsches GeoForschungsZentrum GFZ, 2017, DOI 10.2312/lis.17.01 .
L.T. Ding, P. Mathé, Minimax rates for statistical inverse problems under general source conditions, Preprint no. arXiv:1707.01706, Cornell University Library, arXiv.org, 2017.
P. Mathé, B. Hofmann, Tikhonov regularization with oversmoothing penalty for non-linear ill-posed problems in Hilbert scales, Preprint no. arXiv:1705.03289, Cornell University Library, arXiv.org, 2017.
J. Ebert, V. Spokoiny, A. Suvorikova , Construction of non-asymptotic confidence sets in 2-Wasserstein space, Preprint no. arXiv:1703.03658, Cornell University Library, arXiv.org, 2017.
F. Götze, A. Naumov, V. Spokoiny, V. Ulyanov, Gaussian comparison and anti-concentration inequalities for norms of Gaussian random elements, Preprint no. arXiv:1708.08663, Cornell University Library, arXiv.org, 2017.
A. Naumov, V. Spokoiny, V. Ulyanov, Bootstrap confidence sets for spectral projectors of sample covariance, Preprint no. arXiv:1703.00871, Cornell University Library, arXiv.org, 2017.
I. Silin, V. Spokoiny, Bayesian inference for spectral projectors of covariance matrix, Preprint no. arXiv:1711.11532, Cornell University Library, arXiv.org, 2017.

matches: V. V. V. V. V. V.


text:
As an attorney in Nexsen Pruet’s Tax Group, Jim focuses his practice in two distinct areas: employee benefits and state and local tax.
In the area of state and local tax, Jim regularly represents both corporate and individual taxpayers through all stages of the audit process and resulting litigation before the Department of Revenue, Administrative Law Court, and state appellate courts. Jim has represented clients both challenging proposed assessments and seeking refunds in the areas of corporate tax, income tax, sales and use tax, admissions tax, state tax withholding, and property tax. Jim regularly represents both South Carolina and multinational corporations.
Jim also works closely with businesses to find and take advantage of tax credits at both the state and federal level. He has experience with state infrastructure and other economic development incentives, as well as federal credits related to alternative energy and low income housing. He has assisted in the representation of Fortune 500 companies at the Administrative Law Court, South Carolina Court of Appeals, and South Carolina Supreme Court.
Jim handles matters related to 401(k), profit sharing, pension and other qualified retirement plan administration, as well as the administration of insurance and other fringe benefits. Jim also advises clients with respect to nonqualified plans, including deferred compensation and phantom stock plans. Jim has also helped clients navigate the extensive regulatory network created by Health Care Reform under the Patient Protection and Affordable Care Act.
In addition to his primary focus, Jim regularly advises public charities, supporting organizations, private foundations, trade associations, social clubs, fraternal organizations, and cooperatives in applying for, receiving, and maintaining their exempt status. Additionally, Jim routinely works with exempt organizations regarding state property tax, admissions tax, and sales tax issues, and regularly assists clients in the sale and acquisition of exempt property to and from both for-profit and non-profit entities. Jim also has assisted in securing reinstatement of revoked and dissolved organizations at both the federal and state level.
Most recently, Jim has handled a number of appeals deriving from preliminary calculations of proposed Employer Shared Responsibility Payments assessed under the Affordable Care Act. In many cases, Jim has been able to resolve these assessments with the IRS quickly and in an efficient and favorable manner.
Retail Services & Systems, Inc. v. S.C. Dep’t of Rev., 419 S.C. 469, 799 S.E.2d 665 (2017) (constitutionality of liquor license ownership limitation).
Books-A-Million v. S.C. Dep’t of Rev., 16-ALJ-17-0133 (S.C. Admin. Law Court filed June 6, 2017) (whether membership fees are subject to sales tax).
Fairfield Waverly, LLC v. Dorchester Cnty. Assessor, 14-ALJ-17-0601-CC (S.C. Admin. Law Court filed Feb. 1, 2017) (ATI exemption).
Windsor Club, LLC v. Dorchester Cnty. Assessor, 14-ALJ-17-0602-CC (S.C. Admin. Law Court filed Feb. 1, 2017) (ATI exemption).
Bright-Meyers NA, LLC v. Aiken Cnty. Assessor, 16-ALJ-17-0253-CC (S.C. Admin. Law Court filed Jan. 23, 2017) (property valuation dispute).
Hunter-Gatherer Brewery, LLC v. S.C. Dep't of Rev., 16-ALJ-17-0031-CC (S.C. Admin Law Court filed May 2, 2016) (application for brewery license).
Tax Court to Exempt Orgs: Substantiate!
Jim stays abreast of developments that impact employee benefits and state and local taxation. He enjoys sharing what he learns by speaking and writing as often as possible.
Presenter at Oct. 2016 SALT Seminar - "Circular 230 Update" and "2016 Attorney General Opinion Update"
Jim found his way to South Carolina by way of the Chattooga River (of Deliverance fame), where he worked as a whitewater rafting guide. These days, he prefers the tranquility of the Midlands’ many blackwater rivers, where he can still be found many weekends.
In addition, Jim remains active with the Harvard Alumni Association, conducting admission interviews for prospective students and making presentations on behalf of the university. In July 2014, Jim accepted a three-year appointment with the South Carolina State Guard to serve as Captain in the State Guard’s Judge Advocate program, where he provides legal advice regarding exempt organization and other tax issues.
Prior to moving to South Carolina, Jim worked in the Public Affairs department of the Boston Red Sox for five years, and was lucky enough to be with the team for their World Series championship run in 2004. Stop by and ask to see his World Series ring!

matches: v. v. v. v. v. v.


Rule 24: Rules of Procedure Governing Petitions for Waiver of Parental Consent for Abortions by Minors.
Pursuant to Tennessee Code Annotated § 37-10-304 (i), this rule is promulgated to ensure that proceedings governing petitions for waiver of parental consent for abortions by minors are conducted in an expeditious and anonymous manner.
(a) “Act”means Acts 1988, ch. 929, as amended by Acts 1989, ch. 412, and Acts 1995, ch. 458.
(b) “Applicant”means a pregnant female less than eighteen years of age and not emancipated, or a person acting as next friend on such female's behalf.
(c) “Petition”includes a motion or application.
(d) “Court”means the Juvenile Court, the Circuit Court, or the Supreme Court.
(a) The proceedings governed by this Rule shall be confidential, and every effort should be made to ensure that the anonymity of the applicant is protected.
(b) The record shall be sealed. The record includes, without limitation, the petition, pleadings, submissions, transcripts, exhibits, orders, evidence, findings, and conclusions and any other written material to be maintained.
(c) Except as provided in Section 5(c) of this Rule, the identity of the applicant shall not be disclosed at any stage of the proceeding. In all documents and proceedings, the applicant shall be identified or referred to only by the initials of her first and last name.
(d) The clerks of the various courts shall undertake to ensure that the applicant's contact with the clerk's office is confidential and expeditious to the fullest extent practicable.
(3) Precedence of the Proceeding.
Proceedings under this Rule shall be given such precedence over other pending matters to enable the court to render a decision within the time requirements established below.
(4) Commencement of the Proceeding.
The proceeding shall be commenced by filing a petition in the Juvenile Court of any county of this state.
(5) Content of Petition and Assistance in Preparation.
(vii) The signature of the applicant, which shall consist only of the applicant's initials.
(b) An applicant proceeding under this Rule has the right to court-appointed counsel. Upon request, the court shall immediately appoint counsel to assist the applicant in the proceeding.
(c) One copy of the petition shall contain the complete true name of the minor applicant, shall be filed with the court, and shall be kept in a separate file under seal. This file shall not be open to inspection by anyone, except as provided in Tenn. Code Ann. § 37-10-304(h).
The form of the petition shall be prepared and filed in substantial conformity with the form set forth in the appendix to this Rule. Provided, that the court should not decline to decide a case brought under Tenn. Code Ann. § 37-10-304 and this Rule because of any pleading omissions or other technical defects, but should favor the disposition of the case on the merits by liberally construing the pleadings.
No filing fees or court costs shall be required of the applicant.
(8) Dockets and Document Maintenance.
(a) Each court shall maintain a separate sealed docket of proceedings under this Rule that shall not be open to public inspection. The name or initials of the applicant shall not appear on any docket that is subject to public inspection.
(b) The proceeding shall be identified in any docket open to public inspection by case number only.
(c) Documents pertaining to the proceeding shall not be entered on court minutes. They shall be maintained in a closed file which shall be conspicuously marked “SEALED MATERIALS —CONFIDENTIAL”and identified by the case number only.
(9) Record of the Proceedings.
Proceedings in the juvenile court and the circuit court shall be recorded by a court reporter, who shall maintain the anonymity of the petitioner and the confidentiality of the proceedings and the record. The expenses of reporting and transcribing the proceeding shall be paid by the state.
(10) Entry and Effects of Judgments.
A judgment or decision by the juvenile court, the circuit court, or the Supreme Court granting or denying the petition is effective immediately upon the filing thereof. The clerk of the court in which the petition is pending shall notify the applicant by delivering to her counsel a certified copy of the order. Upon entry by any court of an order granting the petition, counsel for the petitioner shall deliver a certified copy of the order to the person who will perform or induce the abortion. The order shall become a part of the applicant's medical records. There shall be no appeal from a judgment granting the petition.
(11) Proceedings in the Juvenile Court.
(a) The case shall be heard by a juvenile court judge and not by a juvenile court referee. If a juvenile court judge is unavailable to hear the case within the time requirements established below, the case shall be immediately transferred to the Circuit Court for disposition.
(b) Upon filing of the petition, the case shall be immediately docketed for a hearing to be held as soon as the parties can be assembled, but in no event later than the next business day following the filing of the petition. The parties to the hearing should be limited to: the applicant, the applicant's counsel, the court-appointed advocate, the judge, one representative from the clerk's office, and the court reporter.
(c) The hearing shall be closed to all other persons. Witnesses shall be admitted only for the duration of their testimony. The hearing shall be held in a location where privacy can be assured and access limited. It may be held in chambers at the discretion of the court.
(d) The court should endeavor to rule at the conclusion of the hearing, but in any event shall render a decision within forty-eight (48) hours of the time of filing of the petition, weekends and holidays included, unless the applicant consents to an extension. The decision must be in writing, and must include specific findings of fact and conclusions of law. Failure to render a decision within forty-eight (48) hours shall be deemed a denial of the petition, and the applicant may immediately pursue an appeal. In the event the court does not rule at the conclusion of the hearing, the court reporter shall prepare a transcript of the hearing immediately.
(e) If the decision is not rendered immediately following the hearing, then the petitioner shall be responsible for contacting the clerk of the court for notification of the decision. All notifications pursuant to this procedure may be informal and shall be confidential.
(f) If the petition is denied or a decision is not reached within forty-eight (48) hours, an appeal may be had by filing a Notice of Appeal with the Juvenile Court Clerk. Upon receipt of the Notice of Appeal, the Juvenile Court Clerk shall immediately hand deliver the notice of appeal and the record to the Circuit Court Clerk. The transcript of the hearing in juvenile court shall be delivered to the Circuit Court Clerk by the court reporter not later than two (2) hours prior to the time set for the hearing in circuit court.
(12) Proceedings in the Circuit Court.
(a) Upon receipt of the Notice of Appeal, the Circuit Court Clerk shall immediately docket the case.
(b) A hearing shall be held within seventy-two (72) hours of the filing of the Notice of Appeal, weekends and holidays included.
(c) The hearing shall be closed to all persons other than the following: the applicant, the applicant's counsel, the court-appointed advocate, the judge, one representative from the clerk's office, and the court reporter. The hearing shall be held in a location where privacy can be assured and access limited. It may be held in chambers at the discretion of the court.
(d) The court may hear the case de novo on the record, or require the witnesses, or some of them, to testify in person. The court may also hear additional witnesses in its discretion.
(e) The court should endeavor to rule at the conclusion of the hearing, but in any event shall render a decision within seventy-two (72) hours of the time of filing of the notice of Appeal, weekends and holidays included, unless the applicant consents to an extension. The decision must be in writing and must include specific findings of fact and conclusions of law. Failure to render a decision within seventy-two (72) hours shall be deemed a denial of the petition, and the applicant may immediately pursue an appeal.
(f) If the decision is not rendered immediately following the hearing, then the petitioner shall be responsible for contacting the clerk of the court for notification of the decision. All notifications pursuant to this procedure may be informal and shall be confidential.
(g) The applicant may appeal the decision of the Circuit Court denying the petition directly to the Supreme Court by filing a Notice of Appeal with the Circuit Court Clerk. Upon receipt of the Notice of Appeal, the Circuit Court Clerk shall immediately transmit the Notice to the Supreme Court Clerk by facsimile. The Circuit Court Clerk shall thereafter contact the Supreme Court Clerk telephonically to confirm that the facsimile was received.
(viii) The certificate of the clerk.
(13) Proceedings in the Supreme Court.
(a) Upon receipt of the Notice of Appeal, the Supreme Court Clerk shall immediately notify the Chief Justice or his/her designee of the filing.
(b) Filing of a brief. The applicant shall file in the Supreme Court a brief within two (2) calendar days after the record is filed with the Court. The brief shall include copies of the orders and opinions of the lower courts, and may include those parts of the record necessary for determination of the appeal. See Tenn. R. Civ. P. 10.03.
(c) Unless oral argument is waived, the Supreme Court shall conduct a hearing within two (2) calendar days after the brief and record are filed in the Supreme Court. When necessary because of the exigencies of the situation, oral argument may be conducted by telephone, at the Court's discretion.
(d) Oral argument shall be deemed waived unless requested. See Tenn. R. App. P. 35.
(e) The Supreme court shall hear the case de novo upon the record.
(f) If possible, the Supreme Court will render a decision at the conclusion of the argument, if held. In any event, the Court will render a decision no later than forty-eight (48) hours after hearing argument, or after the record and brief are filed, whichever is later, weekends and holidays included.
(g) If the decision is not rendered immediately following argument, then the petitioner shall be responsible for contacting the Supreme Court Clerk for notification of the decision. All notifications pursuant to this procedure may be informal and shall be confidential.
(h) Upon application and for good cause shown, the Supreme Court may order the time periods in this Rule reduced in order to ensure an expedited review. The requirement of good cause will be satisfied if the applicant shows that the requested relief may become unavailable and the issue will become moot by the passage of time unless the time periods are reduced.
1. Applicant is a pregnant female.
2. Applicant's date of birth is _____________________.
3. Applicant is approximately ____ weeks pregnant.
4. The applicant desires to terminate her pregnancy and has consulted with the physician who is to perform the abortion, or with a referring physician, for that purpose the ____ day of ______, 20____. The applicant has been fully informed of the risks and consequences of the abortion.
5. Applicant consents to the abortion procedure.
6. Applicant is of sound mind and has sufficient intellectual capacity to consent to an abortion.
7. Applicant is mature and capable of giving informed consent to the proposed abortion. AND/OR The performance of an abortion upon the applicant would be in the applicant's best interests.
WHEREFORE, applicant prays this Honorable Court to enter an Order authorizing a physician to perform an abortion upon applicant without first obtaining parental consent.
I verify that the statements made in this petition are true and correct to the best of my personal knowledge or information and belief. I understand that any false statements made herein are subject to the penalties of Tenn. Code Ann. § 39-16-702 relating to perjury.
This new rule is in response to the Tennessee legislature's request that the Supreme Court promulgate rules to “ensure that proceedings under . [the waiver of parental consent to abortion statute, T.C.A. §§ 37-10-301 —307] are handled in an expeditious and anonymous manner .”T.C.A. § 37-10-304(i). Underlying this rule is the fact that a decision on a request to waive parental permission for an abortion must be decided quickly or the issue becomes moot simply because of the passage of time.
The proposed Rule 24 assumes that the process involves three courts: The juvenile court, circuit court, and Supreme Court. The initial petition for waiver of parental consent is filed in the juvenile court, T.C.A. § 37-10-303(c), which must rule within forty-eight hours of the application unless the time is extended by the minor. T.C.A. § 37-10-304(d). A minor whose petition is denied by the juvenile court may take a de novo appeal to the circuit court. T.C.A. § 37-10-304(g). Strict time limitations apply. Notice of appeal is filed within twenty-four hours of the juvenile court's decision. The juvenile court record must be received in the circuit court and the appeal docketed within five days of the filing of the notice of appeal. The appeal is to be heard and a decision rendered by the circuit court within five days of the day the case was docketed in the circuit court. Thus, the circuit court should render a decision no more than eleven days after the decision in the juvenile court.
The proposed Rule 24 adopts the dual principles of an expedited appeal with strict time limitations. Subsection (1) requires the minor appealing from a decision of the circuit court to file a notice of appeal with both the circuit court and the Supreme Court within forty-eight hours after the decision of the circuit court. Of course notice could be filed more quickly. Notice to both courts is designed to advise the circuit court clerk that a record will have to be prepared and should assist the Supreme Court in docketing the case.
Subsection (2) requires the minor's representative to prepare and file the record in the circuit court within three calendar days of the adverse decision. The circuit court clerk must transmit the record to the Supreme Court in three calendar days.
Subsection (3) requires the minor's representative to file a brief in the Supreme Court within three calendar days after the record is filed in the circuit court.
The Supreme Court is to conduct a hearing, unless waived, within three days after the brief and record are filed, subsection (4), and shall render its decision within three days after the hearings, subsection (6).
Upon application the Supreme Court may order the statutory time periods shortened in any given case. These procedures should enable the minor to have a full and fair opportunity to resolve the issue of whether a court should grant a waiver of parental consent to an abortion.


(ix) domestic violence service programs that provide services and treatment to children and their non-abusing caregivers.
(6) participate with other community-based and prevention-focused programs and activities designed to strengthen and support families to prevent child abuse and neglect in the development, operation, and expansion of networks where appropriate.
A prior section 5116e, Pub. L. 93–247, title II, §206, formerly Pub. L. 98–473, title IV, §407, Oct. 12, 1984, 98 Stat. 2199 ; renumbered §206 of Pub. L. 93–247, and amended Pub. L. 101–126, §§2(a), 3(a)(3), (c)(1), 4(f), Oct. 25, 1989, 103 Stat. 764 , 766, 768, related to withholding of grant payments upon failure to comply with provisions of this subchapter, prior to the general amendment of this subchapter by Pub. L. 103–252, §401(a).
A prior section 205 of Pub. L. 93–247 was renumbered section 204 and is classified to section 5116d of this title.
Another prior section 205 of Pub. L. 93–247 was classified to section 5116d of this title prior to the general amendment of this subchapter by Pub. L. 103–252, §401(a).
2010-Subsec. (a). Pub. L. 111–320, §136(a)(1), inserted a comma after "expand" in introductory provisions.
Subsec. (a)(1). Pub. L. 111–320, §136(a)(2), substituted "parents," for "parents and" and inserted "in meaningful roles" before semicolon at end.
Subsec. (a)(2). Pub. L. 111–320, §136(a)(3), substituted "a comprehensive strategy to provide" for "a strategy to provide, over time,", "family-centered" for "family centered", and ", to parents with young children, and to parents who are adult former victims of domestic violence or child abuse or neglect," for "and parents with young children,".
Subsec. (a)(3). Pub. L. 111–320, §136(a)(4)(A), struck out introductory provisions which read as follows: "provide-".
Subsec. (a)(3)(B). Pub. L. 111–320, §136(a)(4)(A), (B)(i), redesignated subpar. (C) as (B), inserted "provide" before "access", and struck out former subpar. (B) which read as follows: "other core services, which must be provided or arranged for through contracts or agreements with other local agencies, including voluntary home visiting and all forms of respite care services to the extent practicable; and".
Subsec. (a)(3)(B)(ii). Pub. L. 111–320, §136(a)(4)(B)(ii), added cl. (ii) and struck out former cl. (ii) which read as follows: "child care, early childhood development and intervention services;".
Subsec. (a)(3)(B)(iii). Pub. L. 111–320, §136(a)(4)(B)(iii), inserted "and parents who are individuals with disabilities" before semicolon at end.
Subsec. (a)(3)(B)(v). Pub. L. 111–320, §136(a)(4)(B)(iv), (viii), amended cl. (v) identically, substituting "academic tutoring" for "scholastic tutoring".
Subsec. (a)(3)(B)(ix). Pub. L. 111–320, §136(a)(4)(B)(v)–(vii), added cl. (ix).
Subsec. (a)(3)(C). Pub. L. 111–320, §136(a)(4)(B)(i), redesignated subpar. (C) as (B).
Subsec. (a)(5). Pub. L. 111–320, §136(a)(5), substituted "child abuse and neglect prevention program" for "family resource and support program".
Subsec. (a)(6). Pub. L. 111–320, §136(a)(6), inserted a comma after "operation".
Subsec. (b). Pub. L. 111–320, §136(b), substituted "low-income" for "low income" and "child abuse and neglect prevention programs." for "family resource and support programs".
2003-Subsec. (a). Pub. L. 108–36, §126(1), substituted "and prevention-focused programs and activities designed to strengthen and support families to prevent child abuse and neglect" for "prevention-focused, family resource and support programs" in introductory provisions.
Subsec. (a)(3)(B). Pub. L. 108–36, §126(2), inserted "voluntary home visiting and" after "including".
Subsec. (a)(6). Pub. L. 108–36, §126(3), added par. (6) and struck out former par. (6) which read as follows: "participate with other community-based, prevention-focused, family resource and support program grantees in the development, operation and expansion of the Statewide network."


This case involves the City of Lancaster’s attempt via local ordinance to regulate public utilities’ use of Lancaster’s public rights of way (i.e., to inspect, direct alteration of, and impose fines regarding public utilities’ use of Lancaster’s public rights of way), and to levy an annual assessment for public utilities’ use of Lancaster’s public rights of way. Contending that the Pennsylvania Public Utility Commission has exclusive jurisdiction over the purported regulation, and that the Public Utility Code preempts Lancaster’s attempt to assess an annual fee for use of the public rights of way, PPL challenged the ordinance, joining the PUC as a respondent in order to bring the case in the Commonwealth Court’s original jurisdiction.
In 2015, the Commonwealth Court granted PPL’s motion for summary relief on the challenge to the regulatory aspects of the ordinance, but denied PPL’s motion as to the annual assessment. In 2017, the Commonwealth Court granted Lancaster’s motion for summary relief as to the annual assessment. Both parties appealed the issues they lost to the Supreme Court. Throughout the litigation the PUC has supported PPL’s position. Numerous interested parties have filed amicus briefs in the Supreme Court supporting either PPL’s or Lancaster’s position.
In striking down the ordinance provisions governing inspection of public utility facilities, the location of such facilities, and penalties for non-compliance, the Commonwealth Court noted that the “courts of this Commonwealth have long recognized the intent of our General Assembly that public utilities be regulated on a uniform basis by a statewide regulator and not be subject to the varied regulation of the many cities, townships, and boroughs throughout the Commonwealth,” and surveyed 100 years of cases supporting this proposition. Slip Op. at 10-18. Based on that precedent, the court held that the sections of the ordinance governing inspection of public utility facilities, the location of such facilities, and penalties for non-compliance are preempted by the Public Utility Code, and enjoined the City from enforcing those sections. Id. at 20-22, 24-26. The court reasoned that the General Assembly vested the PUC with authority over these topics, and that the ordinance created overlapping regulation of public utilities by the City. Id.
In upholding the annual assessment, however, the Commonwealth Court found that Lancaster’s ordinance is not preempted by the Public Utility Code. Id. at 22-24. The court reasoned that “maintenance of rights-of-way is within the ambit of the traditional exercise of municipal police powers and the assessment of a reasonable fee for the recovery of costs incurred by the City expended in maintaining such rights-of-way does not constitute local regulation of public utilities.” Id. at 23 (citing Adams v. New Kensington, 55 A.2d 392, 394-95 (Pa. 1947); Kittanning Borough v. American Natural Gas Co., 86 A. 717, 717-18 (Pa. 1913)).
Lancaster and its amici argue on appeal that in striking down the ordinance provisions governing inspection of public utility facilities, the location of such facilities, and penalties for non-compliance, the Commonwealth Court failed to conduct a conflict preemption analysis, ignoring specific language in each of the challenged sections that was designed to “respect the PUC’s exclusive jurisdiction” while “giving effect to the Lancaster’s authority to manage its rights-of-way.” Instead, Lancaster argues, the Commonwealth Court majority erroneously engaged in a field preemption analysis which, Lancaster argues, does not apply to public utility regulation. Had the court applied a conflict preemption analysis and focused on the express language of the ordinance, Lancaster argues, it would have found no preemption.
In response, PPL argues that regardless of whether there is a literal, physical conflict between the ordinance and the Public Utility Code, the ordinance runs contrary to the legislature’s goal in enacting the Code: to ensure safe and adequate utility service to the public, at reasonable rates, by providing for the comprehensive and uniform regulation of public utilities by a single statewide regulator, the PUC. The ordinance stands as an obstacle to this purpose because it purports to grant Lancaster concurrent regulatory authority over matters that were entrusted to the PUC in the furtherance of statewide welfare. Thus, PPL argues, Lancaster misses the point with its contention that the ordinance is unlike ordinances found to be preempted in other cases because they required a utility “to do something….” Lancaster’s ordinance is not preempted because it tells a utility to go “up” while the PUC tells the utility to go “down”, PPL explains; it is preempted because the General Assembly reserved to the PUC the exclusive authority to give direction to public utilities.
The annual occupancy fee violates PPL’s statutory right to occupy the right-of-way for purposes of providing utility service under Section 1511(e) of the Business Corporation Law, which grants public utilities the right to occupy rights-of-way, without compensating or obtaining the consent of the municipality, in order to provide service to the public.
In response, Lancaster, noting that both the majority and the dissent in the Commonwealth Court properly applied a conflict preemption analysis to conclude that the fee is lawful, argues that Lancaster is permitted to assess reasonable fees to defray the expense of exercising its police power, so long as the fees are “necessary or desirable for the public good.” Adams v. City of New Kensington, 55 A.2d 392, 395 (Pa. 1947). The City’s fees must be in the nature of cost recovery, and not a tax. See Kittanning Borough v. Am. Natural Gas Co., 86 A. 717 (Pa. 1913). Fees are unlawful if they are unreasonable in relation to the costs incurred by the municipality. Norwood Borough v. Keystone Tel., Co., 64 Pa. Super. 261, 264 (1915).
a. Whether the General Assembly’s statutory purpose of ensuring reasonable utility rates for consumers across the Commonwealth through the uniform, statewide regulation of rates by the Public Utility Commission pursuant to the Public Utility Code preempts a municipality’s perpetual, annual occupancy fee on public utilities’ facilities in the right-of-way?
b. Whether, as a matter of statutory construction, and in light of the General Assembly ‘s intent that the Public Utility Code provide for the statewide, uniform regulation of public utilities by the Public Utility Commission, a municipality ‘s limited statutory authority over public utilities cannot be construed to include the power to impose a perpetual, annual occupancy fee on public utilities’ facilities in the right-of-way?
c. Whether a municipality’s perpetual, annual occupancy fee on public utilities’ facilities in the right-of-way violates the statutory right of public utilities under 15 Pa.C.S. § 1511(e) to occupy the right-of-way for purposes of providing utility service to the public, without compensation or obtaining the consent of the municipality?


text:
11.1. Each family or taxon of lower rank with a particular circumscription, position, and rank can bear only one correct name, special exceptions being made for 9 families and 1 subfamily for which alternative names are permitted (see Art. 18.5 and 19.7). However, the use of separate names for the form-taxa of fungi and for morphotaxa of fossil plants is allowed under Art. 1.3, 59.4, and 59.5.
11.2. In no case does a name have priority outside the rank in which it is published (but see Art. 53.4).
Ex. 1. Campanula sect. Campanopsis R. Br. (Prodr.: 561. 1810) when treated as a genus is called Wahlenbergia Roth (1821), a name conserved against the taxonomic (heterotypic) synonym Cervicina Delile (1813), and not Campanopsis (R. Br.) Kuntze (1891).
Ex. 2. Magnolia virginiana var. foetida L. (1753) when raised to specific rank is called M. grandiflora L. (1759), not M. foetida (L.) Sarg. (1889).
Ex. 3. Lythrum intermedium Ledeb. (1822) when treated as a variety of L. salicaria L. (1753) is called L. salicaria var. glabrum Ledeb. (Fl. Ross. 2: 127. 1843), not L. salicaria var. intermedium (Ledeb.) Koehne (in Bot. Jahrb. Syst. 1: 327. 1881).
Ex. 4. When the two varieties constituting Hemerocallis lilioasphodelus L. (1753), var. flava L. and var. fulva L., are considered to be distinct species, the one not including the lectotype of the species name is called H. fulva (L.) L. (1762), but the other one bears the name H. lilioasphodelus L., which in the rank of species has priority over H. flava (L.) L. (1762).
11.3. For any taxon from family to genus inclusive, the correct name is the earliest legitimate one with the same rank, except in cases of limitation of priority by conservation (see Art. 14) or where Art. 11.7, 15, 19.4, 56, 57, or 59 apply.
Ex. 5. When Aesculus L. (1753), Pavia Mill. (1754), Macrothyrsus Spach (1834) and Calothyrsus Spach (1834) are referred to a single genus, its name is Aesculus L.
11.4. For any taxon below the rank of genus, the correct name is the combination of the final epithet of the earliest legitimate name of the taxon in the same rank, with the correct name of the genus or species to which it is assigned, except (a) in cases of limitation of priority under Art. 14, 15, 56, or 57, or (b) if the resulting combination could not be validly published under Art. 32.1(c) or would be illegitimate under Art. 53, or (c) if Art. 11.7, 22.1, 26.1, or 59 rules that a different combination is to be used.
Ex. 6. Primula sect. Dionysiopsis Pax (in Jahresber. Schles. Ges. Vaterländ. Kultur 87: 20. 1909) when transferred to Dionysia Fenzl becomes D. sect. Dionysiopsis (Pax) Melch. (in Mitt. Thüring. Bot. Vereins 50: 164-168. 1943); the substitute name D. sect. Ariadna Wendelbo (in Bot. Not. 112: 496. 1959) is illegitimate under Art. 52.1.
Ex. 7. Antirrhinum spurium L. (1753) when transferred to Linaria Mill. is called L. spuria (L.) Mill. (1768).
Ex. 8. When transferring Serratula chamaepeuce L. (1753) to Ptilostemon Cass., Cassini illegitimately (Art. 52.1) named the species P. muticus Cass. (1826). In that genus, the correct name is P. chamaepeuce (L.) Less. (1832).
Ex. 9.The correct name for Rubus aculeatiflorus var. taitoensis (Hayata) T. S. Liu & T. Y. Yang (in Annual Taiwan Prov. Mus. 12: 12. 1969) is R. taitoensis Hayata var. taitoensis, because R. taitoensis Hayata (1911) has priority over R. aculeatiflorus Hayata (1915).
Ex. 10. When transferring Spartium biflorum Desf. (1798) to Cytisus Desf., Spach correctly proposed the substitute name C. fontanesii Spach (1849) because of the previously and validly published C. biflorus L'Hér. (1791); the combination C. biflorus based on S. biflorum would be illegitimate under Art. 53.1.
Ex. 11. Spergula stricta Sw. (1799) when transferred to Arenaria L. is called A. uliginosa Schleich. ex Schltdl. (1808) because of the existence of the name A. stricta Michx. (1803), based on a different type; but on further transfer to the genus Minuartia L. the epithet stricta is again available and the species is called M. stricta (Sw.) Hiern (1899).
Ex. 12. Arum dracunculus L. (1753) when transferred to Dracunculus Mill. is named D. vulgaris Schott (1832), as use of the Linnaean epithet would result in a tautonym (Art. 23.4).
Ex. 13. Cucubalus behen L. (1753) when transferred to Behen Moench was legitimately renamed B. vulgaris Moench (1794) to avoid the tautonym "B. behen". In Silene L., the epithet behen is unavailable because of the existence of S. behen L. (1753). Therefore, the substitute name S. cucubalus Wibel (1799) was proposed. This, however, is illegitimate (Art. 52.1) since the specific epithet vulgaris was available. In Silene, the correct name of the species is S. vulgaris (Moench) Garcke (1869).
Ex. 14. Helianthemum italicum var. micranthum Gren. & Godr. (Fl. France 1: 171. 1847) when transferred as a variety to H. penicillatum Thibaud ex Dunal retains its varietal epithet and is named H. penicillatum var. micranthum (Gren. & Godr.) Grosser (in Engler, Pflanzenr. 14: 115. 1903).
Ex. 15.The final epithet of the combination Thymus praecox subsp. arcticus (Durand) Jalas (in Veröff. Geobot. Inst. ETH Stiftung Rübel Zürich 43: 190. 1970), based on T. serpyllum var. arcticus Durand (Pl. Kaneanae Groenl. 196. 1856), was first used at the rank of subspecies in the combination T. serpyllum L. subsp. arcticus (Durand) Hyl. (in Uppsala Univ. Årsskr. 1945(7): 276. 1945). However, if T. britannicus Ronniger (1924) is included in this taxon, the correct name at subspecies rank is T. praecox subsp. britannicus (Ronniger) Holub (in Preslia 45: 359. 1973), for which the final epithet was first used at this rank in the combination T. serpyllum subsp. britannicus (Ronniger) P. Fourn. (Quatre Fl. France: 841. 1938, "S.-E. [Sous-Espèce] Th. Britannicus").
Note 1. The valid publication of a name at a rank lower than genus precludes any simultaneous homonymous combination (Art. 53), irrespective of the priority of other names with the same final epithet that may require transfer to the same genus or species.
Ex. 16. Tausch included two species in his new genus Alkanna: A. tinctoria Tausch (1824), a new species based on "Anchusa tinctoria" in the sense of Linnaeus (1762), and A. mathioli Tausch (1824), a nomen novum based on Lithospermum tinctorium L. (1753). Both names are legitimate and take priority from 1824.
Ex. 17. Raymond-Hamet transferred to the genus Sedum both Cotyledon sedoides DC. (1808) and Sempervivum sedoides Decne. (1844). He combined the epithet of the later name, Sempervivum sedoides, under Sedum as S. sedoides (Decne.) Raym.-Hamet (1929), and published a new name, S. candollei Raym.-Hamet (1929), for the earlier name. Both names are legitimate.
11.5. When, for any taxon of the rank of family or below, a choice is possible between legitimate names of equal priority in the corresponding rank, or between available final epithets of names of equal priority in the corresponding rank, the first such choice to be effectively published (Art. 29, 30, 31) establishes the priority of the chosen name, and of any legitimate combination with the same type and final epithet at that rank, over the other competing name(s) (but see Art. 11.6).
Note 2. A choice as provided for in Art. 11.5 is effected by adopting one of the competing names, or its final epithet in the required combination, and simultaneously rejecting or relegating to synonymy the other(s), or nomenclatural (homotypic) synonyms thereof.
Ex. 18. When Dentaria L. (1753) and Cardamine L. (1753) are united, the resulting genus is called Cardamine because that name was chosen by Crantz (Cl. Crucif. Emend.: 126. 1769), who first united them.
Ex. 19. When Claudopus Gillet (1876), Eccilia (Fr. : Fr.) P. Kumm. (1871), Entoloma (Fr. ex Rabenh.) P. Kumm. (1871), Leptonia (Fr. : Fr.) P. Kumm. (1871), and Nolanea (Fr. : Fr.) P. Kumm. (1871) are united, one of the generic names simultaneously published by Kummer must be used for the combined genus. Donk, who did so (in Bull. Jard. Bot. Buitenzorg, ser. 3, 18(1): 157. 1949), selected Entoloma, which is therefore treated as having priority over the other names.
Ex. 20. Brown (in Tuckey, Narr. Exped. Zaire: 484. 1818) was the first to unite Waltheria americana L. (1753) and W. indica L. (1753). He adopted the name W. indica for the combined species, and this name is accordingly treated as having priority over W. americana.
Ex. 21. Baillon (in Adansonia 3: 162. 1863), when uniting for the first time Sclerocroton integerrimus Hochst. (1845) and S. reticulatus Hochst. (1845), adopted the name Stillingia integerrima (Hochst.) Baill. for the combined taxon. Consequently Sclerocroton integerrimus is treated as having priority over S. reticulatus irrespective of the genus (Sclerocroton, Stillingia, Excoecaria or Sapium) to which the species is assigned.
Ex. 22. Linnaeus (1753) simultaneously published the names Verbesina alba and V. prostrata. Later (1771), he published Eclipta erecta, an illegitimate name because V. alba was cited in synonymy, and E. prostrata, based on V. prostrata. The first author to unite these taxa was Roxburgh (Fl. Ind., ed. 1832, 3: 438. 1832), who adopted the name E. prostrata (L.) L. Therefore V. prostrata is treated as having priority over V. alba.
Ex. 23. Donia speciosa and D. formosa, which were simultaneously published by Don (1832), were illegitimately renamed Clianthus oxleyi and C. dampieri, respectively, by Lindley (1835). Brown (in Sturt, Narr. Exped. C. Australia 2: 71. 1849) united both in a single species, adopting the illegitimate name C. dampieri and citing D. speciosa and C. oxleyi as synonyms; his choice is not of the kind provided for by Art. 11.5. Clianthus speciosus (G. Don) Asch. & Graebn. (1909), published with D. speciosa and C. dampieri listed as synonyms, is an illegitimate later homonym of C. speciosus (Endl.) Steud. (1840); again, conditions for a choice under Art. 11.5 were not satisfied. Ford & Vickery (1950) published the legitimate combination C. formosus (G. Don) Ford & Vickery and cited D. formosa and D. speciosa as synonyms, but since the epithet of the latter was unavailable in Clianthus a choice was not possible and again Art. 11.5 does not apply. Thompson (1990) was the first to effect an acceptable choice when publishing the combination Swainsona formosa (G. Don) Joy Thomps. and indicating that D. speciosa was a synonym of it.
11.6. An autonym is treated as having priority over the name or names of the same date and rank that established it.
Note 3. When the final epithet of an autonym is used in a new combination under the requirements of Art. 11.6, the basionym of that combination is the name from which the autonym is derived, or its basionym if it has one.
Ex. 24. By describing Synthyris subg. Plagiocarpus, Pennell (in Proc. Acad. Nat. Sci. Philadelphia 85: 86. 1933) established the name Synthyris Benth. subg. Synthyris (although using the designation "Eusynthyris"), and when this group is included in Veronica, V. subg. Synthyris (Benth.) M. M. Mart. Ort. & al. (in Taxon 53: 440. 2004) has precedence over a combination in Veronica based on S. subg. Plagiocarpus Pennell.
Ex. 25. Heracleum sibiricum L. (1753) includes H. sibiricum subsp. lecokii (Godr. & Gren.) Nyman (Consp. Fl. Eur.: 290. 1879) and H. sibiricum subsp. sibiricum automatically established at the same time. When H. sibiricum is included in H. sphondylium L. (1753) as a subspecies, the correct name for the taxon is H. sphondylium subsp. sibiricum (L.) Simonk. (Enum. Fl. Transsilv.: 266. 1887), not subsp. lecokii, whether or not subsp. lecokii is treated as distinct.
Ex. 26. The publication of Salix tristis var. microphylla Andersson (Salices Bor.-Amer.: 21. 1858) created the autonym S. tristis Aiton (1789) var. tristis, dating from 1858. If S. tristis, including var. microphylla, is recognized as a variety of S. humilis Marshall (1785), the correct name is S. humilis var. tristis (Aiton) Griggs (in Proc. Ohio Acad. Sci. 4: 301. 1905). However, if both varieties of S. tristis are recognized as varieties of S. humilis, then the names S. humilis var. tristis and S. humilis var. microphylla (Andersson) Fernald (in Rhodora 48: 46. 1946) are both used.
Ex. 27. In the classification adopted by Rollins and Shaw, Lesquerella lasiocarpa (Hook. ex A. Gray) S. Watson (1888) is composed of two subspecies, subsp. lasiocarpa (which includes the type of the name of the species and is cited without an author) and subsp. berlandieri (A. Gray) Rollins & E. A. Shaw. The latter subspecies is composed of two varieties. In that classification the correct name of the variety which includes the type of subsp. berlandieri is L. lasiocarpa var. berlandieri (A. Gray) Payson (1922), not L. lasiocarpa var. berlandieri (cited without an author) or L. lasiocarpa var. hispida (S. Watson) Rollins & E. A. Shaw (1972), based on Synthlipsis berlandieri var. hispida S. Watson (1882), since publication of the latter name established the autonym S. berlandieri A. Gray var. berlandieri which, at varietal rank, is treated as having priority over var. hispida.
11.7. For purposes of priority, names of fossil morphotaxa compete only with names based on a fossil type representing the same part, life-history stage, or preservational state (see Art. 1.2).
Ex. 28. The generic name Sigillaria Brongn. (1822), established for bark fragments, may in part represent the same biological taxon as the "cone-genus" Mazocarpon M. J. Benson (1918), which represents permineralizations, or Sigillariostrobus (Schimp.) Geinitz (1873), which represents compressions. Certain species of all three genera, Sigillaria, Mazocarpon, and Sigillariostrobus, have been assigned to the family Sigillariaceae. All these generic names can be used concurrently in spite of the fact that they may, at least in part, apply to the same organism.
Ex. 29. The morphogeneric name Tuberculodinium D. Wall (1967) may be retained for a genus of fossil cysts even though cysts of the same kind are known to be part of the life cycle of an extant genus that bears an earlier name, Pyrophacus F. Stein (1883).
Ex. 30. A common Jurassic leaf-compression fossil is referred to by different authors either as Ginkgo huttonii (Sternb.) Heer or Ginkgoites huttonii (Sternb.) M. Black. Both names are in accordance with the Code, and either name can correctly be used, depending on whether this Jurassic morphospecies is regarded as rightly assigned to the living (non-fossil) genus Ginkgo L. or whether it is more appropriate to assign it to the morphogenus Ginkgoites Seward (type, G. obovata (Nath.) Seward, a Triassic leaf compression).
11.8. Names of plants (diatoms excepted) based on a non-fossil type are treated as having priority over names of the same rank based on a fossil (or subfossil) type.
Ex. 31. If Platycarya Siebold & Zucc. (1843), a non-fossil genus, and Petrophiloides Bowerb. (1840), a fossil genus, are united, the name Platycarya is correct for the combined genus, although it is antedated by Petrophiloides.
Ex. 32. Boalch and Guy-Ohlson (in Taxon 41: 529-531. 1992) united the two prasinophyte genera Pachysphaera Ostenf. (1899) and Tasmanites E. J. Newton (1875). Pachysphaera is based on a non-fossil type and Tasmanites on a fossil type. Under the Code in effect in 1992, Tasmanites had priority and was therefore adopted. Under the current Code, in which the exemption in Art. 11.8 applies only to diatoms and not to algae in general, Pachysphaera is correct for the combined genus.
Ex. 33. The generic name Metasequoia Miki (1941) was based on the fossil type of M. disticha (Heer) Miki. After discovery of the non-fossil species M. glyptostroboides Hu & W. C. Cheng, conservation of Metasequoia Hu & W. C. Cheng (1948) as based on the non-fossil type was approved. Otherwise, any new generic name based on M. glyptostroboides would have had to be treated as having priority over Metasequoia Miki.
Note 4. The provisions of Art. 11 determine priority between different names applicable to the same taxon; they do not concern homonymy. In accordance with Art. 53, later homonyms are illegitimate whether the type is fossil or non-fossil.
Ex. 34. Endolepis Torr. (1861), based on a non-fossil type, is an illegitimate later homonym of, and does not have priority over, Endolepis Schleid. (1846), based on a fossil type.
Ex. 35. Cornus paucinervis Hance (1881), based on a non-fossil type, is an illegitimate later homonym and does not have priority over C. paucinervis Heer (Fl. Tert. Helv. 3: 289. 1859), based on a fossil type.
Ex. 36. Ficus crassipes F. M. Bailey (1889), F. tiliifolia Baker (1885), and F. tremula Warb. (1894), each based on a non-fossil type, were illegitimate later homonyms of, respectively, F. crassipes (Heer) Heer (1882), F. tiliifolia (A. Braun) Heer (1856), and F. tremula (Heer) Heer (1874), each based on a fossil type. The three names with non-fossil types have been conserved against their earlier homonyms in order to maintain their use.
11.9. For purposes of priority, names in Latin form given to hybrids are subject to the same rules as are those of non-hybrid taxa of equivalent rank.
Ex. 37. The name ×Solidaster H. R. Wehrh. (1932) antedates ×Asterago Everett (1937) for the hybrids between Aster L. and Solidago L.
Ex. 38. Anemone ×hybrida Paxton (1848) antedates A. ×elegans Decne. (1852), pro sp., as the binomial for the hybrids derived from A. hupehensis (Lemoine & É. Lemoine) Lemoine & É. Lemoine × A. vitifolia Buch.-Ham. ex DC.
Ex. 39. Camus (in Bull. Mus. Natl. Hist. Nat. 33: 538. 1927) published the name ×Agroelymus A. Camus for a nothogenus, without a Latin description or diagnosis, mentioning only the names of the parents involved (Agropyron Gaertn. and Elymus L.). Since this name was not validly published under the Code then in force, Rousseau (in Mém. Jard. Bot. Montréal 29: 10-11. 1952) published a Latin diagnosis. However, the date of valid publication of ×Agroelymus under this Code (Art. H.9) is 1927, not 1952, so it antedates the name ×Elymopyrum Cugnac (in Bull. Soc. Hist. Nat. Ardennes 33: 14. 1938).
11.10. The principle of priority does not apply above the rank of family (but see Rec. 16B).

matches:
Art. 18
Art. 1
Art. 53
Art. 14
Art. 11
Art. 14
Art. 32
Art. 53
Art. 11
Art. 52
Art. 53
Art. 11
Art. 11
V.
V.
V.
V.
V.
Art. 11
Art. 11
Art. 11
Art. 11
V.
Art. 1
Art. 11
Art. 11
Art. 53


text:
The other day, after we published my blog post about the New Jersey Supreme Court’s “Animal House” decision, I received some emails about police searches in general. So, in response, I thought the below primer may be helpful to understand what the police can and cannot do to you, your car, and your home. I should note that search and seizure issues are among the most fact-sensitive aspects of a criminal case.
As a starting point, both the United States Constitution’s 4th Amendment and the New Jersey Constitution Article 1, Paragraph 7 (yes, there is more than one constitution) guarantee the right of the people to be free from unreasonable searches or seizures.Generally, a warrant is required to sustain the reasonableness of a search or the propriety of a seizure. These constitutional rights are tempered by the exceptions set forth by both the United States Supreme Court and New Jersey Supreme Court.
But, what happens if the police did not utilize a search warrant? Well, where any search or seizure is challenged by a defendant through a motion to suppress at the trial court, the burden is on the State to establish the constitutionality of the search. Side note: if the State prevails at the trial court level, on appeal, the record is reviewed by the Appellate Division (the court of appeals) to determine whether: (1) the findings are supported by sufficient credible evidence and (2) the legal conclusions are valid. State v. Yohnnson, 204 N.J. 43, 62 (2010).
(8) whether it would be safe to leave the car unguarded and, if not, whether the delay that would be caused by obtaining a warrant would place the officers or the evidence at risk.
This exception is often relied on by the State where a vehicle is stopped late at night and the police feel they have some basis to search the entirety of the vehicle—but do not believe they have time for (or, simply do not want to wait for) a judge to sign a search warrant.
This exception is often used by the State when police “observe” drugs or other contraband in a vehicle.
For a Search Incident to Arrest, State v. Hill, 115 N.J. 169, 173 (1989) provides one of the better explanations of the exception. Essentially, this exception provides that when a suspect is lawfully placed under arrest, a law enforcement officer may conduct a search of the person of the suspect as well as the area within the suspect’s immediate control. The foundation of this exception is officer safety and the risk of destruction of evidence within the immediate control of a suspect. That said, the search must be contemporaneous to the arrest. State v. Bradley, 291 N.J. Super. 501 (App. Div. 1996). This exception, among other things, is what allows an arrestee (someone who has been arrested) to have items seized from their body and clothing.
For Community Caretaking issues, State v. Diloreto, 180 N.J. 264, 275 (2004) provides a good discussion of this exception. The “community caretaking” doctrine applies when the police are engaged in functions that are totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute. State v. Adubato, 420 N.J. Super. 167 (App. Div. 2011). As noted in Diloreto, community caretaking is based on the notion that police serve to ensure the safety and welfare of the citizenry at large. This exception used to be more widely used by the State. It was, essentially, a “catch-all” exception. The Appellate Division has refined this exception over the years, most recently in State v. Kaltner, which I wrote about last week.
For an Inventory Search, State v. Mangold, 82 N.J. 575, 587 (1980) and Colorado v. Bertine, 479 U.S. 367, 372–74, 107 S.Ct. 738, 742, 93 L.Ed.2d 739, 747 (1987), provide good explanations of this exception. In New Jersey, if a vehicle is lawfully impounded and its owner or permissive user is present, that person must be given the option of either consenting to the inventory or making his own arrangements for the safekeeping of the property contained in the vehicle. Absent consent or alternative security provisions, an inventory may be not undertaken. In such cases the vehicle owner or user will be presumed to have assumed the risk for any claims of property loss or theft arising from the impoundment. Don’t be fooled—if your car is impounded by the police, you do not have to consent to having an inventory search of your car performed. However, if, for example, you had a $10,000 rolex in the car, and it gets stolen out of your impounded car, there is nothing you can do if you refused the inventory search.
For an Administrative Search, State v. Hewitt, 400 N.J. Super. 376 (App. Div. 2008) sets the score. This exception applies only if three criteria are satisfied: First, there must be a substantial government interest that informs the regulatory scheme pursuant to which the inspection is made; second, the warrantless inspections must be necessary to further the regulatory scheme; and third the statute’s inspection program, in terms of the certainty and regularity of its application, must provide a constitutionally adequate substitute for a warrant. See also New York v. Burger, 482 U.S. 691, 702-03, 107 S.Ct. 2636, 2643-44, 96 L.Ed.2d 601, 613-14 (1987). Although you may not know it, you often read about this search in action—“police seize 300 pounds of pot from 18-wheeler on Route 287”. Administrative searches allow police officers to “search” without a warrant pursuant to a regulatory scheme.
If you or a loved one are arrested and evidence against you is seized (with or without a warrant), it is important for you to obtain legal representation. The above information is a scintilla of the law of search and seizure in New Jersey. The seizure of evidence to be used against you may be like the base of a house of cards. If you can successfully challenge a search and seizure of evidence, the rest of the case may fall apart. A skilled criminal defense attorney can identify the search and seizure issues and either file the appropriate motion to address those issues, or, in the alternative, highlight those issues to the prosecuting agency. A worthy prosecutor knows the pitfalls of his or her case and, if presented to him or her in the appropriate manner, may be willing to plea bargain or dismiss the charges against you.

matches: v. v. v. v. v. v. v. v. v. v.


Justice Kennedy, with whom The Chief Justice, Justice OConnor, and Justice Breyer join, concurring in part and dissenting in part.
The Court is correct, in my view, in rejecting the claim that damages awarded under the Federal Employers Liability Act (FELA or Act) must be apportioned according to causal contribution among even absent joint tortfeasors. Parts I, II, and IV of its opinion have my full assent.
It is otherwise as to Part III. The Court allows compensation for fear of cancer to those who manifest symptoms of some other disease, not itself causative of cancer, though stemming from asbestos exposure. The Courts precedents interpreting FELA neither compel nor justify this result. The Courts ruling is not based upon a sound application of the common-law principles that should inform our decisions implementing FELA. On the contrary, those principles call for a different rule, one which does not yield such aberrant results in asbestos exposure cases. These reasons require my respectful dissent.
It is common ground that the purpose of FELA is to provide compensation for employees protected under the Act. Ante, at 6. The Courts decision is a serious threat to that objective. Although a ruling that allows compensation for fear of a disease might appear on the surface to be solicitous of employees and thus consistent with the goals of FELA, the realities of asbestos litigation should instruct the Court otherwise.
Consider the consequences of allowing compensation for fear of cancer in the cases now before the Court. The respondents are between 60 and 77 years old. All except one have a long history of tobacco use, and three have smoked for more than 50 years. They suffer from shortness of breath, but only one testified that it affects his daily activities. As for emotional injury, one of the respondents complained that his shortness of breath caused him to become depressed; the others stated, in response to questions from their attorneys, that they have some concern about their health and about cancer. For this, the jury awarded each respondent between $770,640 and $1,230,806 in damages, reduced by the trial court to between $523,605 and $1,204,093 to account for the comparative negligence of the respondents cigarette use.
Contrast this recovery with the prospects of an employee who does not yet have asbestosis but who in fact will develop asbestos-related cancer. Cancers caused by asbestos have long periods of latency. Their symptoms do not become manifest for decades after exposure. See Selikoff et al., Latency of Asbestos Disease Among Insulation Workers in the United States and Canada, 46 Cancer 2736, 2740 (1980) (lung cancer becomes manifest 1524 years after exposure); A. Churg & F. Green, Pathology of Occupational Lung Disease 350 (2d ed. 1998) (The latency period for asbestos-induced mesothelioma is long, with a mean value of 30 to 40 years); see generally Mustacchi, Lung Cancer Latency and Asbestos Liability, 17 J. Legal Med. 277 (June 1996) (discussing the pathogenesis of asbestos-related carcinomata). These cancers inflict excruciating pain and distresspain more severe than that associated with asbestosis, distress more harrowing than the fear of developing a future illness.
. A minority of patients, somewhere around 15%, survive 3 to 4 years). Yet the majoritys decision endangers this employees chances of recovering any damages for the simple reason that, by the time the worker is entitled to sue for the cancer, the funds available for compensation in all likelihood will have disappeared, depleted by verdicts awarding damages for unrealized fear, verdicts the majority is so willing to embrace.
In a world of limited resources, would a rule permitting immediate large-scale recoveries for widespread emotional distress caused by fear of future disease diminish the likelihood of recovery by those who later suffer from the disease? Metro-North Commuter R. Co. v. Buckley, 521 U.S. 424, 435436 (1997).
The Court ignores this question and its warning. It is only a matter of time before inability to pay for real illness comes to pass. The Courts imprudent ruling will have been a contributing cause to this injustice.
Asbestos litigation has driven 57 companies, which employed hundreds of thousands of people, into bankruptcy, including 26 companies that have become insolvent since January 1, 2000. See RAND Institute for Civil Justice, S. Carroll et al., Asbestos Litigation Costs and Compensation: An Interim Report 71 (2002) Petitioners Supplemental Lodging, p. SL82. With each bankruptcy the remaining defendants come under greater financial strain, see Edley & Weiler, Asbestos: A Multi-Billion-Dollar Crisis, 30 Harv. J. Legis. 383, 392 (1993); M. Plevin & P. Kalish, Whats Behind the Recent Wave of Asbestos Bankruptcies? 16 Mealeys Litigation Report: Asbestos 35 (Apr. 20, 2001), and the funds available for compensation become closer to exhaustion, see Schuck, The Worst Should Go First: Deferral Registries in Asbestos Litigation, 15 Harv. J. L. & Pub. Poly 541, 547 (1992).
In this particular universe of asbestos litigation, with its fast diminishing resources, the Courts wooden determination to allow recovery for fear of future illness is antithetical to FELAs goals of ensuring compensation for injuries. Cf. Consolidated Rail Corporation v. Gottshall, 512 U.S. 532, 555 (1994) (describing FELAs central focus on physical perils); Metro-North, supra, at 430 (noting that Gottshall relied upon cases involving a threatened physical contact that caused, or might have caused, immediate traumatic harm). As a consequence of the majoritys decision, it is more likely that those with the worst injuries from exposure to asbestos will find they are without remedy because those with lesser, and even problematic, injuries will have exhausted the resources for payment. Todays decision is not employee-protecting; it is employee-threatening.
When the Court asks whether the rule it adopts has been settled by the common law, the answer, in my view, must be no. The issue before us is new and unsettled, as is evident from the diverse approaches of state and federal courts to this problem. In its comprehensive discussion, the majority cites some authorities that, it must be acknowledged, could be interpreted to support the Courts position. The result it reaches, however, is far from inevitable, and the rule the majority derives does not comport with our responsibility to develop a federal common law that administers FELA in an effective, principled way.
I disagree with the Courts conclusion that damages for fear of cancer may be recovered as part of the pain and suffering caused by asbestosis. Ante, at 9. The majority observes that a person who suffers from a disease may recover for all related emotional distress. Ante, at 8 (courts  do permit a plaintiff who suffers from a disease to recover for related negligently caused emotional distress ) (quoting Metro-North, supra, at 432)). While that may be true as a general matter, it begs the question: What relationship between a disease and associated emotional distress should entitle a person to compensation for the distress as pain and suffering?
The Courts precedent applying FELA provides the answer. To qualify as compensable pain and suffering, a persons emotional distress must be the direct consequence of an injury or condition. See Gottshall, 512 U.S., at 544 ([T]hese terms traditionally have been used to describe sensations stemming directly from a physical injury or condition (internal quotation marks omitted)). Damages for emotional harms that are less direct may be recovered only pursuant to a stand-alone tort action for negligent infliction of emotional distress. Ibid. (defining negligently inflicted emotional distress as mental or emotional harm (such as fright or anxiety) that is caused by the negligence of another and that is not directly brought about by a physical injury).
is the natural consequence of, or reasonably expected to flow from, the injury); see also Restatement (Second) of Torts §456(a) (19631964) (hereinafter Restatement) (tortfeasor liable for fright, shock, or other emotional disturbance resulting from the bodily harm or from the conduct which causes it).
This category of emotional distress includes certain types of fears. The fright that accompanies a dog bite or a radiation burn, for example, may be said to result from an injury because it arises without any intervening cause, such as a medical examination. See The Lord Derby, 17 F. 265, 267 (ED La. 1883) (To many people the shock to the system resulting from the most insignificant bite of a dog drawing blood is such that no money compensation is adequate). The passage in the Restatement deeming compensable emotional disturbance resulting from the bodily harm or from the conduct which causes it, §456(a), refers, as the official commentary makes clear, to this sort of instantaneous emotional trauma arising from the tortious act. See id., Comment e (Thus one who is struck by a negligently driven automobile and suffers a broken leg may recover not only for his pain, grief, or worry resulting from the broken leg, but also for his fright at seeing the car about to hit him).
Other, less immediate fears also might qualify as pain and suffering, but only if they are the direct result of an injury. See id., §456, Comment d (clarifying that recovery is not limited to immediate emotional disturbance accompanying the bodily harm, or following at once from it, but includes also subsequent emotional disturbance brought about by the bodily harm itself ).
Applying these standards to the instant case, I do not think the brooding, contemplative fear the respondents allege can be called a direct result of their asbestosis. Unlike shortness of breath or other discomfort asbestosis may cause, their fear does not arise from the presence of disease in their lungs. Instead, the respondents fear is the product of learning from a doctor about their asbestosis, receiving information (perhaps at a much later time) about the conditions that correlate with this disease, and then contemplating how these possible conditions might affect their lives.
The majority nevertheless would permit recovery because [t]here is an undisputed relationship between exposure to asbestos sufficient to cause asbestosis, and asbestos-related cancer. Ante, at 16. To state that some relationship exists without examining whether the relationship is enough to support recovery, however, ignores the central issue in this case. There is a fundamental premise in this caseconceded, as I understand it, by all partiesand it is this: There is no demonstrated causal link between asbestosis and cancer. See Churg & Green, Pathology of Occupational Lung Disease, at 313. The incidence of asbestosis correlates with the less-frequent incidence of cancer among exposed workers, ibid., but this does not suffice. Correlation is not causation. Absent causation, it is difficult to conceive why asbestosis is any more than marginally more suitable a predicate for recovering for fear of cancer than the fact of mere exposure. This correlation the Court relies upon does not establish a direct link between asbestosis and asbestos-related cancer, and it does not suffice under common-law precedents as a predicate condition for recovery of damages based upon fear.
It must be conceded that courts in some common-law jurisdictions have ruled that fear of cancer is compensable as pain and suffering before the cancer is diagnosed, but the majoritys extensive citations are not that persuasive. The Court collects cases from 12 jurisdictions that comport with its result, but only 5 of these were decided by the high court of a State. Ante, at 1213, and n. 10. Moreover, three would allow recovery for fear of cancer predicated upon mere exposure to asbestos, see Denton v. Southern R. Co., 854 S. W. 2d 885, 889 (Tenn. App. 1993) (citing Hagerty v. L & L Marine Servs., Inc., 788 F.2d 315, 318 (CA5 1986)); Lavelle v. Owens-Corning Fiberglas Corp., 30 Ohio Misc. 2d 11, 14, 507 N. E. 2d 476, 480 (Ct. Common Pleas, Cuyahoga Cty. 1987); Devlin v. Johns-Manville Corp., 202 N. J. Super. 556, 563, 495 A. 2d 495, 499 (1985), a result contrary to our own holding in Metro-North. Five more appear to allow recovery with the onset of pleurisy, see Capital Holding Corp. v. Bailey, 873 S. W. 2d 187, 194 (Ky. 1994); Beeman v. Manville Corp. Asbestos Disease Compensation Fund, 496 N. W. 2d 247, 250 (Iowa 1993); Celotex Corp. v. Wilson, 607 A. 2d 1223, 12291230 (Del. 1992); Mauro v. Raymark Industries, Inc., 116 N. J. 126, 129130, 561 A. 2d 257, 258259 (1989); Wolff v. A-One Oil, Inc., 216 App. Div. 2d 291, 292, 627 N. Y. S. 2d 788, 789790 (1995), again a result even todays Court would reject, ante, at 1517 and n. 14. In the end, cases from only five of those jurisdictions support the majoritys analysis, none of them decided by a state high court.
On the other hand, as the majority acknowledges, some courts have ruled that fear of cancer should not be compensable as pain and suffering. Ante, at 12, n. 10. These decisions are based, in part, upon the separate disease rule, which allows a person who has recovered for injuries resulting from asbestosis to bring a new lawsuitnotwithstanding the traditional common-law proscription against splitting a cause of actionif cancer develops. See Wilson v. Johns-Manville Sales Corp., 684 F.2d 111, 120121 (CADC 1982) (Ginsburg, J.). The rule has been adopted by a majority of jurisdictions, see Henderson & Twerski, Asbestos Litigation Gone Mad: Exposure-Based Recovery for Increased Risk, Mental Distress, and Medical Monitoring, 53 S. C. L. Rev. 815, 821, and n. 22 (2002) (collecting cases), and the Court does not suggest that it would not apply in cases brought under FELA.
[D]amages for fear of cancer are speculative. The awarding of such damages would lead to inequitable results since those who never contract cancer would obtain damages even though the disease never came into fruition.
In any case, Appellants are not left without a remedy for their mental anguish. [Pennsylvania case law] permits an action to be commenced if cancer develops. It is in this action that Appellants can assert their emotional distress or mental anguish claims. To allow the asbestos plaintiff in a non-cancer claim to recover for any part of the damages relating to cancer, including the fear of contracting cancer, erodes the integrity of and purpose behind the [separate] disease rule. Simmons v. Pacor, Inc., 543 Pa. 664, 677678, 674 A. 2d 232, 238239 (1996).
This analysis is persuasive because it accounts, in a way that the majoritys decision does not, for changes already underway in common-law rules for compensating victims of a disease with a long latency period. This approach surely is more likely to result in an equitable allotment of compensation than the decision of the Court; and this is the rule the Court should adopt to govern the availability of damages for fear of cancer under FELA.
If no nexus were required between cancer and an alleged injury, an injury akin to a spinal puncture, serious but unrelated to cancer, would admit recovery of parasitic damages for fear of cancer. Indeed, any serious physical injury, however unrelated to cancer, would permit fear-of-cancer damages. 868 F. Supp., at 1211.
The proofs offered by the claimants in Barron were insufficient on summary judgment to meet that burden under California law, and the respondents in todays case also would be incapable of recovering under that standard.
Other common-law authorities the majority cites do not compel a contrary result. It is of no help to the respondents that mental anguish related to a physical injury is recoverable even if the underlying future prospect is not itself compensable inasmuch as it is not sufficiently likely to occur.  Ante, at 10 (quoting Minneman, 50 A. L. R. 4th, at 25). This principle cannot sustain an award when, as here, there is a tangential, and no causal, relationship between the present injury suffered and the future disease feared. Ibid. (Thus, damages for mental anguish concerning the chance that a future disease or condition will result from an original injury are generally not recoverable where the connection between the anxiety and the existing injury is too remote or tenuous).
The respondents characterization, furthermore, finds no support in the part of the Restatement quoted by the majority. Ante, at 15 ([A] negligent actor is answerable in damages for emotional disturbance resulting from the bodily harm or from the conduct which causes it  (quoting Restatement §456(a))). As described supra, at 67, the commentary suggests that this statement would allow recovery for direct or immediate emotional trauma resulting from a tortious act, see Restatement §456(a), Comment e. The respondents do not claim to have experienced any shock or trauma arising from their exposure to asbestos or from the onset of their asbestosis. With almost no variation, they complained only of concern, for which the Restatement provides no guidance as to whether damages should be awarded.
More important, while the disagreement among state courts about how to address this problem is telling, it is important to keep in mind the nature of the Courts responsibility under FELA. The implementation of the Act is a matter of federal common law, see Urie v. Thompson, 337 U.S. 163, 173 (1949), and it is for the Court to develop and administer a fair and workable rule of decision, see Brady v. Southern R. Co., 320 U.S. 476, 479 (1943) ([T]he question must be determined by this Court finally); see also Gottshall, 512 U.S., at 558 (Souter, J., concurring) (That duty is to develop a federal common law of negligence under FELA, informed by reference to the evolving common law). State-court precedent is not dispositive. See Dice v. Akron, C. & Y. R. Co., 342 U.S. 359, 361 (1952) (State laws are not controlling in determining what the incidents of this federal right shall be). Instead, the Court is bound only by the terms of FELA and its own precedent giving meaning to the Act. Within those constraints, the Court must endeavor to arrive at the correct rulea rule that is just and practicalrather than the majority rule or the rule of the Restatement.
These considerations establish the proper rule for the case. Although the anxiety generated by an increased awareness about a disease may be real and painful, it lacks the direct link to a physical injury that suffices for recovery. Cf. Metro-North, 521 U.S., at 432 (denying fear-of-cancer recovery where condition causes emotional distress only because the worker learns that he may become ill after a substantial period of time). The respondents entitlement to compensation for their fear of cancer turns upon their ability to make out a claim for negligent infliction of emotional distress; and they cannot do so.
If viewed as alleging negligent infliction of emotional distress, the respondents claims fail for the same reasons the Court disallowed recovery in Metro-North. There, the employee was exposed to massive amounts of asbestos for one hour of each working day for three years. See id., at 427. He presented testimony about his fear of developing cancer. Ibid. Two expert witnesses testified that the employees fear was at least reasonable because his exposure to asbestos increased the likelihood of contracting cancer, after discounting for a 15-year tobacco habit, by between one and five percent. Ibid.
Despite these indications of genuine emotional distress, the Court held the exposure did not satisfy the zone of danger test and denied any recovery for fear of cancer. Id., at 430. The Court explained that the claim implicated the traditional concerns underlying common-law restrictions upon recovery for emotional distress. See id., at 433. The distress the employee alleged, including his emotional reaction to an incremental, increased risk of dying from cancer, was beyond the ability of a jury to evaluate with precision, heightening the danger that damages would be based upon speculation or caprice, see id., at 435.
The respondents claims implicate these considerations to the same or greater degree than in Metro-North. Each respondent seeks damages for his emotional response to being told he has an increased likelihood of dying. Ibid. The extent of the distress the respondents suffered is not calculable with a precision sufficient to permit juries to award damages, for the distress is simply incremental from the fears already shared by the general population.
overview.pdf (as visited Feb. 10, 2003) (available in Clerk of Courts case file). This literature also suggests that a person who smokes has more than a 50 percent chance of dying from a disease caused by tobacco use, see National Cancer Institute, Changes in Cigarette-Related Disease Risks & Their Implication for Prevention and Control, Smoking & Tobacco Control Monograph, No. 8, 1997, at xi, Table1, a risk that all but one of the respondents has incurred that is wholly separate from their exposure to asbestos.
The damages the jury awarded in this case indicate the legitimacy of these concerns. As described above, supra, at 2, the respondents received damages of between $500,000 and $1.2 million despite having complained only that they suffered shortness of breath and experienced varying degrees of concern about cancer. This evidence of injury and the compensation awarded is recited here not to reweigh that evidence in light of information not presented at trial, ante, at 15, n. 13, or to judge the sufficiency of the evidence or the reasonableness of the damages awards, ante, at 18. Rather, it is instructive as to what results in a single case when a jury is charged with translating into dollar amounts confusing and contested evidence about the nature of a complicated harm. It demonstrates the speculative, unreasoned kind of award generated when a jury is presented vivid testimony about the agony of cancer, provided expert evidence that a persons chances of developing that cancer have increased, but admonished that only the fear of that cancerand not the cancer itself, or a heightened risk of developing canceris compensable.
. In the context of claims for intangible harms brought under a negligence statute, we find such an arbitrary result unacceptable. Ibid.
The Courts response to the possibility of speculative awards is instead to adopt common-law rules restricting the classes of plaintiffs eligible to seek recovery and the types of emotional distress for which recovery is available. See ibid.; see also Metro-North, 521 U.S., at 436. This is not to say that allegations of emotional distress need not be genuine and serious in order to warrant compensation, but review for genuineness alone does little or nothing to prevent capricious outcomes. Instead, the responsibility of todays Court is not to review whether an individual claim alleging fear of cancer is genuine and severe, but to adopt a rule that reconciles the need to provide compensation for deserving claimants with the concerns that speculative damages awards will exhaust the resources available for recovery.
The Court, to be sure, does refer to the admonition in Metro-North that common-law rules must be adopted to avoid the risk of  unlimited and unpredictable liability.  Id., at 433 (quoting Gottshall, 512 U. S. at 557). Yet the rule it adopts is an unreasoned rule of limitationa rule that does not advance the goal of ensuring that fair and sensible principles will govern recovery for injuries caused by asbestos.
The majority ends its opinion with a plea for legislative intervention, ante, at 28, an entreaty made before, see Ortiz v. Fibreboard Corp., 527 U.S. 815, 821 (1999); id., at 865 (Rehnquist, C. J., concurring); id., at 866867 (Breyer, J., dissenting). This case arises under FELA, however, by which Congress has directed the courts, and ultimately this Court, to use their resources to develop equitable rules of decision. It is regrettable that the Court today does not accept that responsibility.
These reasons explain my dissent from Part III of the Courts opinion.


text:
Reference: Yachina NP, Khurmatulina RK. Formation of the Monitoring Competence of the Teacher in a Comprehensive Institution. Int Elect J Math Ed. 2016;11(4), 843-857.
Reference: Yachina, N. P., & Khurmatulina, R. K. (2016). Formation of the Monitoring Competence of the Teacher in a Comprehensive Institution. International Electronic Journal of Mathematics Education, 11(4), 843-857.
Reference: Yachina, Nadezhda P., and Rezeda K. Khurmatulina. "Formation of the Monitoring Competence of the Teacher in a Comprehensive Institution". International Electronic Journal of Mathematics Education 2016 11 no. 4 (2016): 843-857.
Reference: Yachina, N. P., and Khurmatulina, R. K. (2016). Formation of the Monitoring Competence of the Teacher in a Comprehensive Institution. International Electronic Journal of Mathematics Education, 11(4), pp. 843-857.
Reference: Yachina, Nadezhda P. et al. "Formation of the Monitoring Competence of the Teacher in a Comprehensive Institution". International Electronic Journal of Mathematics Education, vol. 11, no. 4, 2016, pp. 843-857.
Reference: Yachina NP, Khurmatulina RK. Formation of the Monitoring Competence of the Teacher in a Comprehensive Institution. Int Elect J Math Ed. 2016;11(4):843-57.
The relevance of the problem in question is stipulated by the increasing role of the teacher and his professional competence in the successful solution of innovative social pedagogical problems of the new educational paradigm; by the more significant role of the teacher’s monitoring activity in the improvement of quality of general education. It is as well determined by the fulfilled conscious need of the teacher to develop the monitoring competence as a component of his pedagogical mastery. The aim of the article is formulation, theoretical justification and implementation of the model of the teacher’s monitoring competence and pedagogical conditions of its efficient realization in a comprehensive institution. The main approaches of the research are personal active, competence-based and monitoring with the primary cognition principle being dialectical. The mentioned approaches crucially reflect the peculiarities of scientific cognition as well as of the process of the teacher’s monitoring competence. The research found structural functional components of the monitoring competence of the teacher (motivational, cognitive, projective), which reflect its specific systemic characteristics: the typology of teacher basing on his involvement in the monitoring activities has been determined (the main determined types are reproductive, constructive, innovative, creative); the model of the monitoring competence of the teacher in a comprehensive institution has been designed and explained. The model comprises a set of interconnected stages: orientation-motivational, contensive, operational active, result evaluating.
Abdoulkhanova-Slavskaya, K. А. (1991). Strategiya zhizni. Мoscow: Mysl. 299p.
Ananiev, B. G. (1999). O problemakh sovremennogo chelovekoznaniya. Мoscow: Nauka. 304p.
Andreyev, V. I. (2000). Pedagogika: uchebniy kurs dlya tvorcheskogo samorazvitiya. Kazan: Tsentr innovatsionnikh technologiy. 600p.
Babanskiy, Y. K. (1982). Problemi povisheniya effectivnosti pedagogicheskikh issledovanii. Мoscow: Pedagogika. 192p.
Davydov, V. V. (1996). Teoriya razvivayushschego obucheniya. Moscow: INPOR. 544p.
Denne, L. D., Thomas, E., Hastings, R. P. & Hughes, J. C. (2015). Assessing competencies in applied behavior analysis for tutors working with children with autism in a school-based setting. Journal Research in Autism Spectrum Disorders, 20, 67-77.
Feyereislova, S. & Nathan, D. (2014). How best to teach developmental assessment? A single-blinded randomized study, Child: Care, Health and Development, 41(2), 334-342.
Gabdoullin, G.G. (1990). Perestroika shkoli: problemi upravleniy. Kazan: Tatarskoye knizhnoye izdatelstvo. 206p.
Khurmatullina, R. & Yachina, N. (2015). Formation of Individual Creative Activity Style of a Prospective Music Teacher. Review of European Studies, 7(5), 231-236.
Khutorskoi, А. V. (2002). Opredeleniyeobshchepredmetnogo soderzhaniya I klyuchevikh competentsiy kak kharakteristica novogo podkhoda k konstruirovaniyu obrazovatelnikh standartov. Journal Pedagogika, 5, 18-22.
Koshkin, V., Maslennikov, A., Steshina, L., Starigina N. & Petukhov I. (2015). In-House Monitoring over Student Competence Formation. Procedia - Social and Behavioral Sciences, 186, 582-586.
Kuzmina, N. V. (1993). Professionalizm pedagogicheskoi deyatelnosti. Saint-Petersburg: Peter. 154p.
Leontiev, D. А. (1996). Samorealizatsiya i soushchostniye sili. Мoscow. 128p.
Makhmutov, М. I., Ibragimov, G. I. & Choshanov, M. A. (1993). Pedagogicheskiye technologii razvitiya mishleniya uchaschikhsya. Kazan: TGZhI. 88p.
Markova, А. K. (1999). Psikhologiya trouda uchitelya: kniga dlya uchitelya. Moscow: Prosveshcheniye. 244p.
Miller, A., Eather, N., Sproule, J., Annis-Brovn, L. & Lubans, D. R. (2015). The PLUNGE randomized controlled trial: Evaluation of a games-based physical activity professional learning program in primary school physical education. Journal Preventive medicine, 74, 1-8.
Orlova, V. А. & Lebedeva V. P. (2000). Psikhodidakticheskiye aspecti proyektirovaniya obrazovatelnoy sredi. Journal Standarti i monitoring v obrazovanii, 4, 20-26.
Slastyonin, V. А. (2004). Professionalizm uchitelya kak yavleniye pedagogicheskoi culture. Journal Pedagogicheskaya nauka i obrazovaniye, 5, 4-15.
Vigotskiy, L. S. & Davydov, V. V. (1982). Problemi obshchei psikhologii. Мoskow: Pedagogika. 360p.
Yachina, N. P., Moukhutdinova T. Z. & Khaziyeva N. N. (2009). Professional competence as an indicator of the quality of education. Vestnik of Kazan Technological University. Federal scientific peer-reviewed journal, 2, 180-186.
Yagoupov, V. V., Mizinchuk, V. I. & Krishtal, N. А. (2013). Monitoringovaya funktsiya prepodavatelei spetsialnikh distsiplin. Journal Goumanitarniye vedomosti TGPU named after L. N. Тоlstoy, 3, 95-102.
Zagvyazinskiy, V. I. (1981). Metodologiya i metodika didakticheskogo issledovaniya. Мosсow: Pedagogika. 160p.
Zmeyev, S. I. (2012). Competentnostnaya osnova professionalnoi podgotovki i povisheniya kvalifikatsii prepodavatelya visshei shkoli ХХI veka. Vestnik MGLU, 649, 51-62.

matches: V. V. V. V. V. V. V. V. V. V. V.