How Appealing

Tuesday, February 12, 2008

"This case assesses the constitutionality of a Texas statute making it a crime to promote or sell sexual devices." So begins a ruling that a partially divided three-judge panel of the U.S. Court of Appeals for the Fifth Circuit issued today. And, by a vote of 2-1, the appellate court holds that "the statute has provisions that violate the Fourteenth Amendment of the U.S. Constitution."

According to the majority opinion:

Because of Lawrence, the issue before us is whether the Texas statute impermissibly burdens the individual's substantive due process right to engage in private intimate conduct of his or her choosing. Contrary to the district court's conclusion, we hold that the Texas law burdens this constitutional right. An individual who wants to legally use a safe sexual device during private intimate moments alone or with another is unable to legally purchase a device in Texas, which heavily burdens a constitutional right.
In so ruling, the Fifth Circuit's majority opinion reaches a result in conflict with a February 2007 ruling of the U.S. Court of Appeals for the Eleventh Circuit upholding a similar Alabama law. I wrote about that Eleventh Circuit ruling in the March 5, 2007 installment of my "On Appeal" column for, headlined "'Lawrence' Fails to Open Floodgates to Unfettered Sexual Freedom."
Posted at 11:14 PM by Howard Bashman

McClatchy Newspapers are reporting: Michael Doyle reports that "Supreme Court gun-ban case draws blizzard of briefs."

And in other news, "Disputed Moussaoui reward money may go to two more."
Posted at 10:57 PM by Howard Bashman

"No Extra Prison Time For D.C.'s 'Tractor Man'": This article will appear Wednesday in The Washington Post.
Posted at 10:48 PM by Howard Bashman

"Energy Contracts Spark High-Stakes Supreme Court Case; Justices to review multibillion-dollar energy contracts": Marcia Coyle has this article in the current issue of The National Law Journal.
Posted at 10:30 PM by Howard Bashman

"State's high court says injured bobsled passenger can sue": Geoffrey Fattah of The Deseret Morning News has a news update that begins, "The Utah Supreme Court has ruled a man who broke his back while riding the Winter Sports Park bobsled run can sue the Utah Athletic Foundation for gross negligence, although he signed a liability waiver form acknowledging the risks."

You can access today's ruling of the Supreme Court of Utah at this link.
Posted at 08:10 PM by Howard Bashman

"Suit revived over UW response to alleged rape by athlete": The Seattle Times today contains an article that begins, "The state appeals court breathed new life Monday into a lawsuit that accused the University of Washington of minimizing an allegation of rape against a Husky football player and treating his accuser with 'deliberate indifference.'"

And The Seattle Post-Intelligencer reports today that "UW forced to defend actions in alleged rape."

You can access yesterday's ruling of the Washington State Court of Appeals, Division One, at this link.
Posted at 07:57 PM by Howard Bashman

Available online from National Public Radio: This evening's broadcast of "All Things Considered" contained audio segments entitled "Scalia Enters Debate on Constitution and Torture" (featuring Nina Totenberg) and "Senate Passes FISA Bill with Immunity for Telecoms."

And today's broadcast of "Talk of the Nation" contained an audio segment entitled "A Visual Tour of Detention at Guantanamo." In addition, yesterday's broadcast contained an audio segment entitled "Detainees Charged with Murder in Sept. 11 Case."
Posted at 07:45 PM by Howard Bashman

The Associated Press is reporting: Now available online are articles headlined "US Judge Scalia on 'So-Called Torture'" (additional coverage appears at this link); "Executions May Be Carried Out at Gitmo": and "Senate Dems Support New Crack Sentences."
Posted at 07:30 PM by Howard Bashman

"Women sue over marriage; Pair challenging voter-backed Amendment 43": The Rocky Mountain News today contains an article that begins, "A lesbian couple wants to overturn a voter-approved ballot measure that defines marriage in Colorado as the union of one man and one woman. Kate Burns and Sheila Schroeder, of Englewood, on Monday filed suit in Denver County Court, asking that Amendment 43 be declared unconstitutional. The couple unsuccessfully tried to obtain a marriage license last year."

And The Denver Post provides a news update headlined "Same-sex marriage ban challenge set; A lesbian couple is charged with trespassing after they staged a sit-in when they were refused a license."
Posted at 07:22 PM by Howard Bashman

"Judge Bybee Won't Recuse Himself in Fajitagate Excessive-Force Case": This article appeared Monday in The Daily Journal of California.

Via this link, you can access both the recusal motion and the order denying it.
Posted at 07:14 PM by Howard Bashman

"Trial could put focus on interrogation; Administration practice may be key in 9/11 cases": Charlie Savage has this article today in The Boston Globe.
Posted at 07:08 PM by Howard Bashman

"India court in moustache notice; India's Supreme Court has issued a notice to a state-run airline asking it to explain why an air steward was sacked for wearing a big moustache": BBC News provides this report.

And The Hindu today contains an article headlined "Flight steward sacked for sporting moustache?"
Posted at 03:08 PM by Howard Bashman

"Sentelle Takes Over": Joe Palazzolo has this post today at "The BLT: The Blog of Legal Times." Additional evidence can be viewed at this link.
Posted at 03:05 PM by Howard Bashman

"UK's 'concerns' over 9/11 trials; Foreign Secretary David Miliband has said he has 'some concerns' over US military tribunals for six men charged with involvement in the 9/11 attacks": BBC News provides this report.
Posted at 02:55 PM by Howard Bashman

"US judge steps in to torture row; The most outspoken judge on the US Supreme Court has defended the use of some physical interrogation techniques": BBC News provides this report. You can access related audio via this link.

And James Vicini of Reuters reports that "Top court's Scalia defends physical interrogation."
Posted at 02:23 PM by Howard Bashman

"U.S. Supreme Court chief in R.I. today": Edward Fitzpatrick has this article today in The Providence Journal. The newspaper also provides an update headlined "Dozens use chief justice's visit to protest Guantanamo."
Posted at 02:20 PM by Howard Bashman

"U.S. seeks shutdown of South Africa case": Lyle Denniston has this post today at "SCOTUSblog." You can access the federal government's cert-stage amicus brief at this link.
Posted at 02:04 PM by Howard Bashman

Under the National Childhood Vaccine Injury Act, does a claim for compensation for a vaccine-related injury survive the death of the child who received the vaccine? In an interesting decision issued today, a three-judge panel of the U.S. Court of Appeals for the Federal Circuit is unanimous in answering "yes," but the panel divides 2-1 over the reasons for reaching that outcome.
Posted at 12:04 PM by Howard Bashman

"Judicial skeptics may be excluded from juries": Today in The San Francisco Chronicle, Bob Egelko has an article that begins, "A state appeals court upheld a Richmond man's assault conviction and prison sentence of 40 years to life Monday, rejecting defense attorneys' argument that prosecutors were racially biased in dismissing black jurors who were skeptical about the criminal justice system."

You can access yesterday's ruling of California's First District Court of Appeal at this link.
Posted at 11:35 AM by Howard Bashman

"Pardon the personal aside. Just wanted to give a brief mention to my father, who died this morning and who's in my thoughts." So begins a post from Law Professor Shaun Martin late yesterday at his blog, "California Appellate Report."
Posted at 11:30 AM by Howard Bashman

Available online from National Public Radio: Yesterday's broadcast of "All Things Considered" contained an audio segment entitled "Pentagon Levels Capital Charges at Detainees."

And yesterday's broadcast of "Day to Day" contained an audio segment entitled "Pentagon to Seek Death Penalty for Detainees" featuring Dahlia Lithwick.

RealPlayer is required to launch these audio segments.

Earlier today, I collected additional related news coverage at this link.
Posted at 11:24 AM by Howard Bashman

"South Korea Holds Its First Jury Trial": The Associated Press provides a report that begins, "South Korea held its first-ever trial by jury Tuesday as part of reform measures aimed at increasing confidence in the judicial system."
Posted at 11:00 AM by Howard Bashman

"Consumer food labeling suits reinstated": Today in The San Francisco Chronicle, Bob Egelko has an article that begins, "Private citizens can sue to enforce California's food labeling laws, the state Supreme Court said Monday in a ruling that revives a consumer complaint about the chemically induced orange coloring of salmon raised on fish farms."

Metropolitan News-Enterprise reports today that "Supreme Court Revives Suit Over Artificially Colored Salmon."

The Associated Press reports that "Top Calif. Court Allows Salmon Lawsuit; California Supreme Court Reinstates Salmon Label Lawsuit."

And Bloomberg News reports that "High court OKs salmon suit against grocers; Consumers allege that chains dyed farm-raised fish pink; companies say that federal laws trump claims."

You can access yesterday's ruling of the Supreme Court of California at this link.
Posted at 10:55 AM by Howard Bashman

"Court Upholds Ron Isley Prison Sentence": The Associated Press provides a report that begins, "An appellate court has upheld a 37-month federal prison sentence for tax evasion for R&B singer Ronald Isley. The three-judge panel rejected the 66-year-old singer's argument that his sentence was unreasonable due to his age, poor health and lack of proof that the federal prison system can provide him adequate health care."

You can access yesterday's non-precedential ruling of the U.S. Court of Appeals for the Ninth Circuit at this link.
Posted at 10:40 AM by Howard Bashman

"Leading Class-Action Lawyer Is Sentenced to Two Years in Kickback Scheme": The New York Times contains this article today.

Josh Gerstein of The New York Sun reports today that "Lerach Sentenced to Two-Year Term."

The Los Angeles Times contains an article headlined "Two-year sentence for Lerach; The famed lawyer who admitted his role in a client kickback scheme says, 'I knew what I was doing was wrong.'"

The Washington Post reports that "Lerach Gets Two Years In Prison for Kickbacks; Prominent Plaintiff Lawyer Loses Appeals for Leniency." reports that "Contrite Lerach Gets Maximum Two-Year Term; Former securities class action king apologizes to firm, family and 'the legal system I've abused.'"

The Wall Street Journal contains an editorial entitled "Lerach Gets Two." And at, you can access Peter Lattman's interview via an item headlined "'I Was Guilty': Iconic plaintiffs lawyer William Lerach looks back on his past and considers what lies ahead."
Posted at 08:54 AM by Howard Bashman

"Mr. Mukasey's False Fear: The attorney general wrongly opposes adjustments of sentences for crack cocaine offenses." This editorial appears today in The Washington Post.
Posted at 08:45 AM by Howard Bashman

"As on Bench, Voting Styles Are Personal": Today in The Washington Post, Robert Barnes and Lucy Shackelford have an article that begins, "You won't find Chief Justice John G. Roberts Jr. on the list of registered voters in Montgomery County, where he lives, but that doesn't mean he has given up his franchise. Extending the private world of the Supreme Court just a bit, Roberts is a Maryland 'confidential voter.' That means that, unlike other voters, he is not required to make his home address, birth date, party affiliation and history of participation available to the public, according to Marjorie Roher, public information officer for Montgomery County's elections board. Roher said she is allowed to confirm the names of confidential voters when asked."
Posted at 08:42 AM by Howard Bashman

"Finding 11-Day Sentence Not Too Little but Too Late": Today in The New York Times, Adam Liptak has this installment of his weekly "Sidebar" column.

Additional coverage is available via this post (scroll down) at the "Sentencing Law and Policy" blog.
Posted at 08:33 AM by Howard Bashman

"Hurdles Seen as Capital Charges Are Filed in 9/11 Case": This article appears today in The New York Times, along with a news analysis headlined "Trial's Focus to Suit Bush."

Today in The Wall Street Journal, Jess Bravin reports that "Capital Charges Are Filed in 9/11 Trials."

The Washington Post contains a front page article headlined "U.S. to Try 6 On Capital Charges Over 9/11 Attacks; New Evidence Gained Without Coercive Tactics."

The Los Angeles Times contains articles headlined "9/11 suspects may face death penalty; The Pentagon brings murder and conspiracy charges against six detainees accused of plotting the attacks" and "A wary hold on 9/11 trials; The Pentagon is bound by tightened rules in prosecuting detainees." The newspaper also contains an editorial entitled "Out of order: Evidence obtained through waterboarding would taint the 9/11 trials -- and our nation."

In The Miami Herald, Carol Rosenberg reports that "Prosecutors seek death penalty for six al Qaeda captives" and "Pentagon scrambling to line up 9/11 defense." And last week, she had articles headlined "'Platinum' captives in off-limits camp; The Pentagon has placed its newest camp strictly out of bounds for both media and military defense attorneys" and "New court could try 6 terror suspects at once."

In The Christian Science Monitor, Warren Richey reports that "U.S. charges six to start 9/11 military trials; They're the first to be tried in Guantanamo's war court for direct ties to plot."

In The New York Sun, Joseph Goldstein reports that "'Guantanamo Six' Should Be Tried in N.Y., Some Say." The newspaper also contains an editorial entitled "The Guantanamo Six."

And USA Today reports that "U.S. prosecutors to seek death penalty for six; Alleged Sept. 11 plotter among suspects charged."
Posted at 08:27 AM by Howard Bashman

"Toleration and Islamic Law": David B. Rivkin, Jr. and Lee A. Casey have this op-ed today in The Wall Street Journal.

And today's edition of The Christian Science Monitor contains an article headlined "Archbishop controversy: does sharia have a role in Britain? The head of the Church of England answers critics of a speech in which he said it might be applicable in certain areas." According to the article, "an informal system of Islamic legal arbitration already functions happily alongside British common law (as do traditional Jewish tribunals)."
Posted at 08:17 AM by Howard Bashman

"Anna Mae Goes to China: Caught in a Six-Year Custody Struggle, She Starts New Life With Biological Family." provides this report.
Posted at 08:14 AM by Howard Bashman

"Lopez Torres and the Democrats": This editorial appears today in The New York Sun.
Posted at 08:02 AM by Howard Bashman

"Back to basics on rights and freedoms": Yesterday in The Guardian (UK), columnist Marcel Berlins had an essay that begins, "Antonin Scalia is the supreme court judge American liberals love to hate. Last week he was in London trying his best to acquire the same reputation here." (Via "Althouse.")
Posted at 08:00 AM by Howard Bashman

"The Oregon Supreme Court Once Again Affirms a Blockbuster Punitive Damages Award Against Philip Morris - Even in the Face of a U.S. Supreme Court Decision Seemingly to the Contrary." Anthony J. Sebok has this essay online today at FindLaw. He kindly mentions yesterday's installment of my "On Appeal" column for
Posted at 07:50 AM by Howard Bashman

"Signal Claims Are Not Patentable: Nuijten Stands -- Rehearing Denied." The blog "Patently-O" has this post reporting on an order denying rehearing en banc, over the dissent of three judges, that the U.S. Court of Appeals for the Federal Circuit issued yesterday.
Posted at 07:44 AM by Howard Bashman

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