How Appealing

Monday, March 19, 2007

"Ideological Drift among Supreme Court Justices: Who, When, and How Important?" Last month, I linked here to an article bearing that title to be published in the Northwestern University Law Review.

Today, a portion of that article appears here at the Northwestern University Law Review Colloquy web site. And Colloquy has posted here a response to that article written by Linda Greenhouse of The New York Times.
Posted at 11:00 PM by Howard Bashman

"Justices weigh free speech vs. school control": The Chicago Tribune provides this news update.

Tuesday's edition of The Telegraph (UK) contains an article headlined "Prank ends in Supreme Court."

And Jake Tapper of ABC News provides a report headlined "Students Await Free Speech Ruling; Supreme Court Tackles 'Bong' Case as Debates Range Over Free Speech."
Posted at 10:30 PM by Howard Bashman

"Students' Right to Free Speech": This editorial will appear Tuesday in The New York Times.
Posted at 10:25 PM by Howard Bashman

"Court Hears Arguments on Student Speech": Linda Greenhouse will have this article Tuesday in The New York Times.
Posted at 08:35 PM by Howard Bashman

"Bong Hits 4 Jesus: Because you just can't improve on 'Bong hits 4 Jesus.'" Dahlia Lithwick has this Supreme Court dispatch online at Slate.
Posted at 08:30 PM by Howard Bashman

"White House searching for Gonzales' replacement, source says": McClatchy Newspapers provide a report that begins, "The White House began floating the names of possible replacements for Attorney General Alberto Gonzales Monday as the Justice Department released more internal documents related to the firings of eight U.S. attorneys last year. One prominent Republican, who earlier had predicted that Gonzales would survive the controversy, said he expected both Gonzales and Deputy Attorney General Paul McNulty to resign soon."
Posted at 08:27 PM by Howard Bashman

Available online from "SCOTUSblog": Lyle Denniston has a post titled "Analysis: A new exception to 'Tinker'?"

And Marty Lederman has a post titled "Brief Notes on Morse Oral Argument."
Posted at 07:48 PM by Howard Bashman

"Bush nominates five for federal judicial posts in Michigan": The Associated Press provides this report. My earlier coverage appears here.
Posted at 07:44 PM by Howard Bashman

"Pentagon: Confession in Cole blast." Carol Rosenberg of The Miami Herald provides this news update.
Posted at 07:35 PM by Howard Bashman

"Detainee Alleges He Was Beaten in U.S. Custody": The New York Times provides a news update that begins, "David Hicks, the first detainee to be formally charged under the new military tribunal rules at Guantanamo Bay, Cuba, has alleged in a court document filed here that during nearly five years in American custody he was beaten several times during interrogations and witnessed the abuse of other prisoners."
Posted at 07:30 PM by Howard Bashman

"'Bong Hits 4 Jesus' case brought before Supreme Court": Stephen Henderson of McClatchy Newspapers provides this report.

Greg Stohr of Bloomberg News reports that "Justices Question Student's Right to Display 'Bong Hits' Sign."

Bill Mears of reports that "High court hears 'Bong hits 4 Jesus' case."

And BBC News reports that "US high court mulls free speech; The US Supreme Court is considering its first major test of students' free speech rights in two decades."
Posted at 07:28 PM by Howard Bashman

Today's federal appellate and district court nominations: Today's White House nominations -- including two renominations for the U.S. Court of Appeals for the Sixth Circuit and the renomination of the previously "controversial" Janet T. Neff (scroll down for bio) to the U.S. District Court for the Western District of Michigan -- can be accessed here.
Posted at 05:54 PM by Howard Bashman

"Court: No Class-Action in Enron Suit." The Associated Press provides a report that begins, "A federal appeals court ruled Monday that Enron Corp. shareholders cannot proceed with a class-action lawsuit against investment banks for their alleged role in the accounting fraud that led to Enron's collapse. The 5th U.S. Circuit Court of Appeals opinion reversed a ruling by U.S. District Judge Melinda Harmon in Houston, who had said shareholders could sue as a class."

The U.S. Court of Appeals for the Fifth Circuit has not yet posted the decision to its web site. If I receive a copy of the decision via email before it becomes available over the court's own site, I will post it. Update at 5:40 p.m.: I've posted the opinion online at this link.
Posted at 05:30 PM by Howard Bashman

Beware the "see also" cite: Today's oral argument in Wilkie v. Robbins, No. 06-219 -- also known as not the "Bong Hits 4 Jesus" case -- contained a humorous exchange between Justice Stephen G. Breyer and Laurence H. Tribe, arguing as counsel for respondents.

The exchange began when Justice Samuel A. Alito, Jr. remarked that Tribe's merits brief did not appear to cite very much authority for a certain point. Tribe remarked that there were two older New York State cases that provided support for the proposition. Justice Breyer then chimed in to note that one of the two cases appeared in Tribe's merits brief following a "see also" cite, which -- in Justice Breyer's view -- "is a sign to me there's something wrong with that case." After Tribe responded that, to the contrary, it was a really, really good case (to paraphrase), Justice Breyer asked, "Why did you say 'See Also'?" To which Tribe responded, "I don't remember." (The exchange appears in the oral argument transcript at pages 45-46).

The lesson of today's oral argument appears to be that one should be prepared not only to defend the cases cited in the brief but also The Bluebook signals that precede the citations to those cases. In any event, at least the debate did not turn to the value of the "cf." signal, which, as Seventh Circuit Judge Terence T. Evans noted in an opinion from 2003 (at page 5), "is often only revealed in the eye of the beholder."
Posted at 05:05 PM by Howard Bashman

"Roberts, Alito May Split on Free-Speech Case":'s Tony Mauro provides this news update.
Posted at 04:45 PM by Howard Bashman

"Bong Hits 4 SCOTUS Oral Argument Transcripts": The U.S. Supreme Court has now posted online today's oral argument transcripts.

The transcript of today's oral argument in Morse v. Frederick, No. 06-278 -- also known as the "Bong Hits 4 Jesus" case -- can be accessed here.

And the transcript of today's oral argument in Wilkie v. Robbins, No. 06-219 -- also known as not the "Bong Hits 4 Jesus" case -- can be accessed here.
Posted at 04:42 PM by Howard Bashman

"Supreme Court hears arguments in free speech case": David G. Savage of The Los Angeles Times provides this news update.
Posted at 03:48 PM by Howard Bashman

"Time to Rethink the FBI": Seventh Circuit Judge Richard A. Posner has this op-ed (pass-through link) today in The Wall Street Journal.

(N.B.: For the past week or so, these pass-through links have for me opened in an Internet Explorer web browser page that contains lots of error messages. Using a Netscape browser, however, these error messages remain toward the top of the page, while the entire text of the op-ed remains unobscured toward the bottom of the page.)
Posted at 03:28 PM by Howard Bashman

Today's ruling of the U.S. Court of Appeals for the Third Circuit in El v. SEPTA: Philadelphia natives may be saddened to learn that this lawsuit, despite its name, does not consist of Market-Frankford El (cute logo here) suing the rest of SEPTA.

Rather, El is the last name of plaintiff Douglas El, who has filed suit under Title VII of the Civil Rights Act of 1964 claiming that SEPTA "unnecessarily disqualifies applicants because of prior criminal convictions--a policy that he argues has a disparate impact on minority applicants because they are more likely than white applicants to have convictions on their records." Today's Third Circuit ruling affirms the entry of summary judgment in favor of SEPTA.
Posted at 03:18 PM by Howard Bashman

"A Right To Keep And Bear Arms?" Stuart Taylor Jr. has this essay in today's issue of National Journal.

And this week's installment of my "On Appeal" column for is headlined "State of the Second Amendment: Does It Apply in the District of Columbia?"
Posted at 03:10 PM by Howard Bashman

"Court hears 'Bong hits 4 Jesus' case": James Vicini of Reuters provides this report.
Posted at 03:02 PM by Howard Bashman

"Supreme Court Weighs Student Free-Speech Case": This audio segment (RealPlayer required) featuring Dahlia Lithwick appeared on today's broadcast of NPR's "Day to Day."
Posted at 02:38 PM by Howard Bashman

"Smearing the U.S. attorneys: New details show the Bush administration's 'document dump' gives a misleading rationale for the firing of two U.S. attorneys." Mark Follman has this essay today at
Posted at 02:35 PM by Howard Bashman

"High court asks Bush admin. view on tamoxifen case": Reuters provides a report that begins, "The U.S. Supreme Court asked the Bush administration on Monday to give its opinion on whether the court should review a case challenging patent settlements between major drugmakers and their generic rivals."
Posted at 02:30 PM by Howard Bashman

"Court Hears 'Bong Hits 4 Jesus' Case": The Associated Press provides this report on a case argued this morning before the U.S. Supreme Court.
Posted at 12:23 PM by Howard Bashman

"We now hold ... that a public official may appeal from an order conclusively denying a motion (based on qualified immunity) seeking summary judgment, whether or not the official has appealed from an order denying a motion to dismiss the complaint, and whether or not the motion for summary judgment rests on new legal or factual arguments." Here's even one more reason to admire the U.S. Court of Appeals for the Seventh Circuit -- if the court doesn't initially reach the correct result, it remains willing to do so on reconsideration.

Back on December 20, 2006, I had a post titled "Chief Judge Easterbrook versus Circuit Judge Posner" commenting on a decision issued that day in which Easterbrook had written the majority opinion and Posner had written a dissent. At the conclusion of my post, I wrote that "I think I agree with Judge Posner's dissent."

Today, the very same three-judge Seventh Circuit panel issued a unanimous decision on panel rehearing in which the court reaches the holding quoted in the above bolded title of this post, which is essentially the position for which Judge Posner argued in his earlier dissent.
Posted at 12:15 PM by Howard Bashman

"Schumer Faulted on Probe; GOP Solons See Conflict on Attorneys": This article appears today in The New York Sun.

The Associated Press reports that "White House Hopes Gonzales Will Stay On."

At her "Legalities" blog, ABC News correspondent Jan Crawford Greenburg (who spent this weekend in Philadelphia in connection with this National Constitution Center event) has a post titled "A 'pink-slip' slip-up."

And today in The Examiner of Washington, DC, George W. Liebmann has an op-ed entitled "Authority for authority’s sake."
Posted at 11:28 AM by Howard Bashman

"Detainee Confesses to USS Cole Bombing": The AP provides a report that begins, "A Pentagon transcript says Waleed Mohammed Bin Attash, a suspected mastermind of the bombing of the USS Cole, has confessed during a military hearing at Guantanamo Bay, Cuba."

Update: The Pentagon has posted the transcript online at this link.
Posted at 10:55 AM by Howard Bashman

The Associated Press is reporting: Now available online are articles headlined "Court Won't Review Sexual Harassment Case" and "Court Won't Hear Work Harassment Case."

Notwithstanding the similar headlines, each article reports on a separate denial of certiorari that the U.S. Supreme Court issued today.
Posted at 10:54 AM by Howard Bashman

"When Rendering Decisions, Judges Are Finding Law Reviews Irrelevant": Last night, I linked here to today's installment (TimesSelect temporary pass-through link) of Adam Liptak's weekly "Sidebar" column.

At her blog, Law Professor Ann Althouse offers a rather elegant solution to the matter.
Posted at 10:50 AM by Howard Bashman

"The chief justice's report is not analytical." In his latest entry at "The Becker-Posner Blog," Seventh Circuit Judge Richard A. Posner directs a variety of criticisms towards Chief Justice John G. Roberts, Jr.'s most recent "Year-End Report on the Federal Judiciary," wherein the Chief Justice called for pay raises for federal judges. And co-blogger Gary Becker offers this response to Judge Posner's post.
Posted at 10:35 AM by Howard Bashman

Unusual entry on today's U.S. Supreme Court Order List: In the case captioned Credit Suisse Securities (USA) LLC v. Billing, No. 05–1157, the Court entered the following order today:
Having been advised by Justice Kennedy that he now realizes that he should have recused himself from participation in this case, and does now recuse himself, the Court vacates its order of Thursday, December 7, 2006. The Court has reconsidered the petition for certiorari, and the petition is granted. The Chief Justice and Justice Kennedy have not participated in the vote to withdraw the order of December 7, 2006, or in the instant reconsideration of the petition for certiorari.
The order of December 7, 2006, which today's order vacates, likewise granted certiorari. The December 7, 2006 order stated:
The motion of NYSE Group, Inc. for leave to file a brief as amicus curiae is granted. The motion of National Association of Securities Dealers, Inc. for leave to file a brief as amicus curiae is granted. The motion of Securities Industry Association, et al. for leave to file a brief as amici curiae is granted. The petition for a writ of certiorari is granted. The Chief Justice took no part in the consideration or decision of these motions and this petition.
Presumably, because a total of seven Justices took part in the recent reconsideration, only three votes were necessary to grant review. The case remains scheduled for oral argument on March 27, 2007. Here's hoping that the parties did not obsess over trying to win Justice Kennedy's sometimes crucial swing vote in their merits briefing.
Posted at 10:25 AM by Howard Bashman

"'Bong Hits 4 Jesus' Dispute May Limit Speech Rights": Greg Stohr of Bloomberg News provides this report.
Posted at 10:08 AM by Howard Bashman

"Court takes no new cases": Lyle Denniston has this post today at "SCOTUSblog." Update: You can access today's U.S. Supreme Court Order List at this link.

If you haven't yet seen the interesting interview that C-SPAN aired last night with Lyle, you can access it via this link.
Posted at 10:05 AM by Howard Bashman

"When Is Viewpoint Discrimination a Constitutional Virtue?" At "SCOTUSblog," Marty Lederman offers these thoughts on the "Bong Hits 4 Jesus" case, which is being argued before the U.S. Supreme Court this morning.
Posted at 10:03 AM by Howard Bashman

On today's broadcast of NPR's "Morning Edition": The broadcast contained audio segments entitled "Justices Hear 'Bong Hits' Free-Speech Case" (featuring Nina Totenberg); "Congress Eyes Hearings on U.S. Attorney Firings"; and "Fallout from Attorney Firings Lands on White House."

RealPlayer is required to launch these audio segments.
Posted at 08:37 AM by Howard Bashman

"State of the Second Amendment: Does It Apply in the District of Columbia?" By clicking here, you can access this week's installment of my "On Appeal" column for
Posted at 08:24 AM by Howard Bashman

"Supreme Court to hear student free-speech case": James Vicini of Reuters provides this report.

The Guardian (UK) today contains an article headlined "'Bong' banner case could send student free speech up in smoke."

And The Cincinnati Enquirer contains an editorial entitled "Bong hits 4 students' free-speech rights."
Posted at 08:23 AM by Howard Bashman

"Blawg Review #100": Available here.
Posted at 08:20 AM by Howard Bashman

"Judges and their donors": Today's edition of The Chicago Tribune contains an editorial that begins, "Illinois has become a pioneer in state judicial races, but not in a wonderful way."
Posted at 08:17 AM by Howard Bashman

"Official Alerted F.B.I. to Rules Abuse 2 Years Ago, Lawyer Says": The New York Times today contains an article that begins, "Almost two years before the Federal Bureau of Investigation publicly admitted this month that it had ignored its own rules when demanding telephone and financial records about private citizens, a top official in that program warned the bureau about widespread lapses, his lawyer said on Sunday."
Posted at 08:13 AM by Howard Bashman

"Democrats turn up heat on firing of U.S. attorney; They allege Carol Lam was ousted in San Diego because she was investigating Republican politicians in Southern California": This article appears today in The Los Angeles Times.

The Washington Times reports today that "Leahy vows to subpoena Rove, Miers." And Donna Brazile has an op-ed entitled "Restore spirit of Justice."

The Washington Post contains an editorial entitled "Help Wanted: What's needed in the next attorney general."

In The New York Times, Adam Cohen has an Editorial Observer column headlined "It Wasn't Just a Bad Idea. It May Have Been Against the Law."

And in The Atlanta Journal-Constitution, Jay Bookman has an op-ed entitled "Gonzales' lies give justice a dirty name."
Posted at 08:10 AM by Howard Bashman

"Antitrust law losing its teeth -- The Supreme Court has relaxed rules against price fixing; Coming up: a big case for retailers." David G. Savage has this article today in The Los Angeles Times.
Posted at 08:04 AM by Howard Bashman

"Partner Adopted by an Heiress Stakes Her Claim": This article appears today in The New York Times.
Posted at 07:48 AM by Howard Bashman

"Trash Talk: Some lawyers-to-be should exercise their right to remain silent." Today in The Wall Street Journal, Elizabeth Wurtzel has an op-ed (free access) that begins, "It's hard out there for a law student. All the stuff to stumble through on the way to that J.D.: torts, property, contracts, evidence, civil procedure, AutoAdmit. That last item is a new development: a Web site of postings for law schools prestigious and otherwise, where students blab about whatever. An awful lot of it is about other students, most of it mean-spirited."
Posted at 07:44 AM by Howard Bashman

"As issues evolve, Supreme Court holds to tradition; Atmosphere is one of ritual, history and strict formality": Joan Biskupic has this article today in USA Today.
Posted at 07:38 AM by Howard Bashman

"Bullets: Arkansas’s new U.S. attorney and his partisan past." Jane Mayer has this Talk of the Town essay in the March 26, 2007 issue of The New Yorker.
Posted at 07:35 AM by Howard Bashman

"An Historical Perspective on the Controversy over U.S. Attorney Firings: In Making Its Inquiry, Congress Must Not Ignore That the Power to Remove is an Incident of the Power to Appoint - And Both are Necessary for the Proper Enforcement of Law." Douglas W. Kmiec has this essay online today at FindLaw.
Posted at 06:44 AM by Howard Bashman

"Gun Shy: Let's stop interpreting the Second Amendment and just abolish it." Benjamin Wittes has this essay online today at The New Republic.
Posted at 12:24 AM by Howard Bashman

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