How Appealing

Wednesday, January 17, 2007

"Court to Oversee U.S. Wiretapping in Terror Cases": The New York Times on Thursday will contain this article.

And McClatchy Newspapers report that "Court to monitor Bush eavesdropping program."
Posted at 11:03 PM by Howard Bashman

"Pentagon Aide Regrets Stance on Law Firms for Detainees": This article will appear Thursday in The New York Times.

And reports that "Bush Official Apologizes for Slap at Guantanamo Detainees' Lawyers."
Posted at 11:00 PM by Howard Bashman

"President Revises Nomination of N. Randy Smith to Ninth Circuit Court of Appeals": The U.S. Court of Appeals for the Ninth Circuit issued this news release today.
Posted at 10:55 PM by Howard Bashman

"City loses 'frivolous' appeal": The News Tribune of Tacoma, Washington today contains an article that begins, "Tacoma’s appeal of a woman’s victory in a lawsuit involving the actions of police officers was 'frivolous,' a federal court said Tuesday." You can access yesterday's order of the U.S. Court of Appeals for the Ninth Circuit at this link. Thanks to "The Volokh Conspiracy" for the pointer.

My coverage of the panel's initial ruling on the so-called merits of the appeal can be accessed here.
Posted at 10:54 PM by Howard Bashman

"Justices Scrutinize Death Penalty in Texas": Linda Greenhouse will have this article Thursday in The New York Times.
Posted at 10:44 PM by Howard Bashman

By an evenly divided 6-6 vote, the Tenth Circuit denies initial hearing in banc of a case involving sentencing procedure under Booker v. United States: According to the dissent from denial of en banc review, the three-judge panel's opinion in this case (also issued today) "injects serious, untoward obstacles to the exercise of the very sentencing discretion by the district courts that Booker was intended to revive. The imposition of a sentence outside the advisory Guideline range in reliance on the discretionary factors in §3553(a) will become painful and complex and will systemically slow the sentencing process."

You can access today's order denying initial hearing en banc, the accompanying dissenting opinion in which three of the six judges who voted in favor of en banc review have joined, and the unanimous three-judge panel's decision in the case at this link.

Here's a question for procedural mavens in the audience: Because this particular Tenth Circuit appeal was already argued before a three-judge panel, and that panel's resulting opinion is what has caused the case to nearly go en banc before the panel's opinion had issued, would such an en banc hearing have constituted "initial" en banc instead of "rehearing" en banc? In my view, once a case is argued and submitted to a three-judge panel for decision in the first instance, any later en banc review would constitute rehearing en banc even if the three-judge panel's decision never issued. The only difference is that this would constitute court-initiated rehearing en banc, instead of litigant-initiated rehearing en banc. Those who disagree or can shed any light on this procedural issue, including any Tenth Circuit judges in the audience, are invited to share their views via email.
Posted at 09:15 PM by Howard Bashman

"Justice Dept. Eases Stance on Domestic Spying": This audio segment (RealPlayer required) appeared on this evening's broadcast of NPR's "All Things Considered."
Posted at 07:22 PM by Howard Bashman

"Texas Side-Step: Have the Supreme Court's opinions become suggestions in Texas?" Dahlia Lithwick has this Supreme Court dispatch online at Slate.
Posted at 07:12 PM by Howard Bashman

The Associated Press is reporting: Now available online are articles headlined "High Court Split Over Texas Death Cases" and "Dismissal Upheld of Md. Wal-Mart Law."
Posted at 06:05 PM by Howard Bashman

"Supreme Court Hears Texas Death Penalty Cases; Justices appear ready to give greater deference to the state in administering its capital punishment laws":'s Tony Mauro provides this news update.
Posted at 05:20 PM by Howard Bashman

"Dogs to get day in Supreme Court; Date set for park case in Birmingham": This article appears today in The Detroit Free Press. We know from recent earlier coverage that various Justices on that court don't much like one another. The Freep provides a sidebar asking "Do the justices even like dogs?" setting forth information about which Justices have animals for pets.
Posted at 05:14 PM by Howard Bashman

Second Circuit dismisses cross-appeal filed one day too late and affirms district court's refusal to find excusable neglect: Applying last Term's per curiam U.S. Supreme Court ruling in Eberhart v. United States, a unanimous three-judge panel today holds that "whether or not the time limit for a cross-appeal is jurisdictional after Eberhart, that decision requires us to enforce the time limit when it is properly invoked by an adverse party."

Today's opinion explains that the deadline by which Travelers Indemnity Company had to file its notice of cross-appeal was no later than fourteen days after the opposing party had filed its appeal. Unfortunately, Travelers, represented on appeal by the Simpson Thacher & Bartlett law firm, filed the notice of cross-appeal one day too late because its counsel waited until what they thought was the last day for filing the notice but had "inadvertently calendared the first notice of appeal on their office records as of the day it was received in the lawyers' office, April 27, 2006, rather as of the day it was filed, April 26, 2006, the date made relevant by Rule 4(a)(3)."
Posted at 05:05 PM by Howard Bashman

"Supreme Court Reconsiders Death-Penalty Case": This audio segment (RealPlayer required) featuring Dahlia Lithwick appeared on today's broadcast of NPR's "Day to Day."
Posted at 04:35 PM by Howard Bashman

"Secret Court to Govern Wiretapping Plan": The Washington Post provides a news update that begins, "The Justice Department announced today that the National Security Agency's controversial warrantless surveillance program has been placed under the authority of a secret surveillance court, marking an abrupt change in approach by the Bush administration after more than a year of heated debate."

And The Los Angeles Times provides a news update headlined "Bush seeks court approval for surveillance."
Posted at 04:30 PM by Howard Bashman

"The Accidental Epidemic: Please Join Us in the Fight to Cure Clumsiness": Associate Justice William W. Bedsworth of the California Court of Appeal has this quite humorous essay online at
Posted at 04:28 PM by Howard Bashman

Mom, apple pie, and appellate judges selected on the basis of merit: Pennsylvania Governor Edward G. Rendell, sworn-in yesterday to his second and final term in that office, stated in his inaugural address: "We must select our state appellate court judges on merit. I believe we must have an independent expert panel to ensure that our judiciary includes only the most qualified jurists."

During his first four-year term as Governor, Rendell did not make any progress toward implementing so-called "merit selection" of appellate judges in Pennsylvania. In short, the issue is not popular within the legislative branch, and without the support of the legislative branch a constitutional amendment to implement "merit selection" cannot become law.

In news coverage of yesterday's inaugural address, The Philadelphia Inquirer reports today that "Rendell lays out ambitious 2d term; Universal health insurance, transit funding and ethics are on his agenda."

The Pittsburgh Post-Gazette reports today that "Rendell lays out 2nd-term agenda; Smaller Legislature, term limits, transit funds among goals."

And The Harrisburg Patriot-News contains an article headlined "An emphasis on reform: Rendell unveils ambitious 2nd-term agenda during inauguration speech."

The September 2001 installment of my monthly "Upon Further Review" column for The Legal Intelligencer was headlined "Pennsylvania Should Keep, But Reform, Its System Of Electing Appellate Judges."
Posted at 03:55 PM by Howard Bashman

"Is There a Post-Abortion Syndrome?" Emily Bazelon will have this cover story article (TimesSelect subscription required) in this upcoming Sunday's issue of The New York Times Magazine.
Posted at 03:35 PM by Howard Bashman

"Major precedent in Smith case?" Lyle Denniston provides this news analysis at "SCOTUSblog."

The U.S. Supreme Court has posted online transcripts of both of this morning's oral arguments. The transcript in Smith v. Texas, No. 05-11304, can be accessed here. And the transcript in Abdul-Kabir v. Quarterman, No. 05-11284, can be accessed here.
Posted at 03:30 PM by Howard Bashman

U.S. Court of Appeals for the Fourth Circuit affirms invalidation of Maryland's Fair Share Health Care Fund Act, requiring employers with 10,000 or more Maryland employees to spend at least 8% of their total payrolls on employees' health insurance costs: You can access today's ruling, by a divided three-judge panel, at this link.

Today's decision holds that the Maryland law, targeted at Wal-Mart, is preempted by the federal law known as ERISA. Circuit Judge Paul V. Niemeyer wrote the majority opinion, in which Circuit Judge William B. Traxler, Jr. joined. Circuit Judge M. Blane Michael dissented, concluding that ERISA does not preempt the Maryland law.

The Fourth Circuit's ruling today affirms a decision that U.S. District Judge J. Frederick Motz of the District of Maryland issued on July 19, 2006. I linked to the district court's opinion and order in this post from that date, and my post collecting news coverage of that ruling can be accessed here.
Posted at 03:05 PM by Howard Bashman

"Secrecy rule to get public input; State high court hosts hearing on whether to keep messages among justices confidential": This article appears today in The Detroit News.

And today in The Detroit Free Press, columnist Brian Dickerson has an op-ed entitled "Adultery, life and Engler's high court."
Posted at 02:15 PM by Howard Bashman

84-month mandatory minimum sentence to be served consecutively for brandishing a gun during a bank robbery does not justify merely a one-month sentence for having committed the bank robbery: Circuit Judge Richard A. Posner today issued this decision on behalf of a unanimous three-judge panel of the U.S. Court of Appeals for the Seventh Circuit.

Judge Posner's opinion notes that "[t]he minimum guidelines sentence for a bank robbery that does not involve the use of a gun is 46 months, and when the consecutive 84-month sentence required by section 924(c)(1) is tacked on to the minimum guidelines sentence, the total is 130 months." The opinion quotes the district judge's statement that "I find a 130 month sentence unreasonable on the facts of this case and contrary to the purposes of sentencing under §3553. Because I have no power to adjust the 84 month consecutive sentence, I have no alternative but to adjust the 46 month guideline part of the sentence so that the sentence, as a whole, is reasonable."

On the federal government's appeal challenging the sentence imposed as unreasonable, the Seventh Circuit today reverses and remand for a resentencing. Today's opinion explains, "Although our review of a sentence that is within the statutory range is deferential, it is not abject; and in this case the unreasonableness of the judge's one-month sentence for the bank robbery is palpable."
Posted at 02:05 PM by Howard Bashman

"Democracy and the Third Branch: A Speech by Attorney General Alberto R. Gonzales." The prepared remarks that Attorney General Gonzales intended to deliver this morning at the American Enterprise Institute can be accessed at this link. The remarks are divided into three sections: "Judicial Independence"; "The Proper Role of a Judge"; and "Judicial Selection."
Posted at 01:54 PM by Howard Bashman

"Secret Court to Govern Wiretapping Plan": The Associated Press provides a report that begins, "The Justice Department, easing a Bush administration policy, said Wednesday it has decided to give an independent body authority to monitor the government's controversial domestic spying program."

Update: You can view the Attorney General's letter at this link.
Posted at 01:45 PM by Howard Bashman

"Bush breaks the cycle of partisanship on judges": Today in The Baltimore Sun, Law Professor Carl Tobias has an op-ed that begins, "Bipartisanship is the byword as President Bush embarks on his final two years and Congress convenes with the first Democratic majorities since 1994. Once the 110th Congress assembled, the president had an excellent opportunity to cooperate with Democrats through the nomination of candidates for the 56 lower court openings. Mr. Bush demonstrated his commitment to bipartisanship by not renominating several controversial appellate nominees last week."

Elsewhere, The Fort Worth Star-Telegram today contains an editorial entitled "Backing off."

And The Richmond Times-Dispatch yesterday contained an editorial entitled "Clean Slate."
Posted at 11:40 AM by Howard Bashman

"Court Rules for Gov't in Deporation Case": The Associated Press provides this report.
Posted at 11:10 AM by Howard Bashman

Access online today's U.S. Supreme Court ruling: Today's decision in Gonzales v. Duenas-Alvarez, No. 05-1629, can be accessed online at this link.
Posted at 10:44 AM by Howard Bashman

From Antarctica to Honolulu: Senior Second Circuit Judge Jon O. Newman will be the guest of the Hawaii chapter of the Federal Bar Association at a brown-bag lunch at the U.S. Courthouse in Honolulu on Thursday, January 25, 2007. According to the invitation, during the hour-and-a-half session, Judge Newman will speak about "The Role of Federal Courts in the Age of Terrorism"; "The Future of Roe v. Wade"; and "The Federal Sentencing Guidelines: Are They Working?" That's a bit of ground to cover in ninety minutes.

My presence at an event in Washington, DC on the evening of Wednesday, January 24th will prevent me from getting to Honolulu in time to see Judge Newman speak on Thursday of next week. Thus, I'll depend on "How Appealing" readers in attendance for a full report.

Update: This post has been updated to correct the relevant dates.
Posted at 10:40 AM by Howard Bashman

"7th Circuit: Antarctica is Not a 'Foreign Country' for Tax Purposes." "TaxProf Blog" today provides this post linking to the tax court ruling that the Seventh Circuit affirmed yesterday. My earlier coverage of yesterday's ruling can be accessed here.
Posted at 10:30 AM by Howard Bashman

"The seven deadly sinners of the Scooter trial: Jury selection begins in the case of former Cheney chief of staff I. Lewis Libby; But are any of the players in this scandal worth rooting for?" Law Professor Jonathan Turley has this essay at
Posted at 10:25 AM by Howard Bashman

"Court rules in deportation case": Lyle Denniston has this post at "SCOTUSblog." According to Lyle's post, the U.S. Supreme Court's lone opinion in an argued case issued today occurred in Gonzales v. Duenas-Alvarez, No. 05-1629. The case was orally argued on December 5, 2006, and you can access the oral argument transcript at this link.
Posted at 10:07 AM by Howard Bashman

"Court reinstates Quran lawsuit": The News-Record of Greensboro, North Carolina today contains an article that begins, "A lawsuit that could determine whether Muslims, Jews and other non-Christians can use the holy texts of their faith to affirm courtroom testimony can move forward, the N.C. Court of Appeals ruled Tuesday."

My earlier coverage appears at this link.
Posted at 09:05 AM by Howard Bashman

On today's broadcast of NPR's "Morning Edition": The broadcast contained audio segments entitled "Documents Leaked to Web Prompt First-Amendment Debate" and "U.S. Attorneys and the Patriot Act" (RealPlayer required).
Posted at 08:55 AM by Howard Bashman

"Craig says Idaho's Randy Smith likely to get 9th Circuit seat; Bush renominates 6th District judge to different seat on appeals court, paving the way for his confirmation": This article appears today in The Idaho Statesman.

My most recent earlier coverage appears at this link.
Posted at 08:50 AM by Howard Bashman

"Lethal injection proposal expected by May 15; Governor's court filing sets timeline, requests secrecy": Claire Cooper, legal affairs writer for The Sacramento Bee, today has this article in that newspaper.

Today in The Los Angeles Times, Henry Weinstein reports that "State to propose execution revisions; Officials vow to release a report in May; But they want to keep secret how the results were reached."

In The San Jose Mercury News, Howard Mintz reports that "Governor promises execution changes; Lethal-injection plan would be ready by May."

And The San Francisco Chronicle reports that "State wants 4 months and secrecy to revamp execution procedures; Death penalty now on hold pending judicial review."
Posted at 08:45 AM by Howard Bashman

"Potential Jurors Queried on Views of Bush Administration": Neil A. Lewis has this article today in The New York Times. The newspaper also reports that "As Trial Begins, Cheney’s Ex-Aide Is Still a Puzzle."

The Washington Post reports today that "Jurors Questioned About War, Memory as Libby Trial Opens."

The Los Angeles Times reports that "Possible Libby jurors quizzed; Two are dismissed after they express strongly negative feelings about officials in the Bush administration."

And The New York Sun reports that "Libby Case Puts Bush on Trial On First Day."
Posted at 08:40 AM by Howard Bashman

"Sentencing to Resume for Truck Driver": The Associated Press provides a report that begins, "Whether a truck driver intended to kill 19 immigrants trapped in a sweltering trailer and whether he did it in a depraved and cruel manner are among the questions jurors are grappling with as they decide on his sentence."
Posted at 08:32 AM by Howard Bashman

"Court voids sentence in LAX plot; U.S. appellate panel says Ahmed Ressam's sentence needs to be recalculated because one count was vacated": Henry Weinstein has this article today in The Los Angeles Times.

Today in The San Francisco Chronicle, Bob Egelko reports that "'Millennium bomber' wins court ruling; 1 of his 9 convictions overturned, review of sentence ordered."

The Seattle Times reports that "Appeals court throws out 1 Ressam felony conviction."

The Seattle Post-Intelligencer reports that "Court reverses 1 count against Ressam; But 'millennium bomber' unlikely to get shorter term."

And The Washington Times reports that "1 conviction out in L.A. bomb plot."

My earlier coverage appears at this link.
Posted at 08:30 AM by Howard Bashman

"Connerly still targeting racial preferences; The ex-UC regent, at USC to speak at a forum, says he plans to put bans on affirmative action on ballots in other states; Critics decry the effort": This article appears today in The Los Angeles Times.
Posted at 08:20 AM by Howard Bashman

The blog "Decision of the Day" has moved to a new online address: The new home for that blog can be accessed here.
Posted at 08:07 AM by Howard Bashman

"U.S. Official Apologizes for Guantanamo Remarks": The Washington Post today contains an article that begins, "A Pentagon official who criticized large U.S. law firms for representing terrorism suspects at the U.S. detention facility at Guantanamo Bay, Cuba, has apologized for his comments, saying that his discussion on a local radio program does not reflect his 'core beliefs.'" You can access Cully Stimson's letter to the editor, published today in The Washington Post, at this link.

Carol Rosenberg of The Miami Herald provides a news update headlined "Defense official sorry for Guantanamo remarks."

Today in The New York Sun, Josh Gerstein has an article headlined "Law School Deans Criticize Pentagon Statement on Detainees."

The Harvard Crimson reports that "Kagan Joins Critics of Government."

The Boston Globe contains an editorial entitled "Another Pentagon smear."

And yesterday, The Chicago Tribune contained an editorial entitled "Attorneys for the damned."
Posted at 07:55 AM by Howard Bashman

"Rehnquist's Skeletons, Part 2: The Supreme Court justice's bad trip." Bonnie Goldstein has this Hot Document online at Slate.
Posted at 07:53 AM by Howard Bashman

"At Berkeley Law, a Challenge to Overcome All Barriers": This article appears today in The New York Times.
Posted at 07:48 AM by Howard Bashman

"AG Criticizes Judges for Terror Rulings": The Associated Press provides a report that begins, "Attorney General Alberto Gonzales says federal judges are unqualified to make rulings affecting national security policy, ramping up his criticism of how they handle terrorism cases. In remarks prepared for delivery Wednesday, Gonzales says judges generally should defer to the will of the president and Congress when deciding national security cases."
Posted at 07:35 AM by Howard Bashman

"The Federal Appeals Court Decision Setting the Final Damages Amount for the Exxon Valdez Oil Spill": Anthony J. Sebok has this essay online today at FindLaw.
Posted at 06:45 AM by Howard Bashman

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