How Appealing



Friday, March 31, 2006

“To a New Lingo: Liberal senators could use a makeover if they want to stop the next conservative nominee from sliding onto the Supreme Court.” Dahlia Lithwick will have this essay in the April 2006 issue of The American Lawyer.

Posted at 10:10 PM by Howard Bashman



“Attorney files ethics complaint over Johnson comments”: The St. Paul Pioneer Press provides a news update that begins, “A crusading conservative attorney Friday filed an ethics complaint against current Minnesota Supreme Court justices and the former chief justice regarding comments Senate Majority Leader Dean Johnson made about them.”

And The Associated Press reports that “Complaint filed against justices over Johnson flap.”

Posted at 5:15 PM by Howard Bashman



“Court: Suit Against Merck Can Go Forward.” The Associated Press provides a report that begins, “Merck & Co. suffered a significant legal setback Friday when an appeals court ruled a nationwide class-action lawsuit can go forward that allows health insurers and others to sue to recover the billions of dollars they spent on Vioxx.”

And Reuters reports that “Court upholds Vioxx class action against Merck.”

You can access today’s ruling of the Superior Court of New Jersey, Appellate Division, at this link.

Posted at 4:22 PM by Howard Bashman



Three-judge panel of the U.S. Court of Appeals for the Federal Circuit decides Zoltek Corp. v. United States, the F-22 stealth fighter patent infringement case: The result is 74 pages of opinions, consisting of a per curiam opinion, two concurring opinions (in which the authors debate whether the Federal Circuit’s earlier opinion in NTP, Inc. v. Research in Motion, Ltd. was correctly decided), and a dissent.

The dissenting opinion begins:

There are two separate though related issues in this case, both matters of first impression. One is of major significance to our understanding of the constitutional obligations of the United States; both relate as well to important rights of patent owners. The first issue is, may an owner of a United States patent bring a cause of action under the Fifth Amendment to the Constitution against the United States for a ‘taking’ as all other owners of property rights may; or is a patent right somehow less of a property interest, not worthy of such constitutional protection? Until this case, this issue has never been addressed directly by this or any other court.

The second issue, dealing with a cause of action for infringement of a United States patent, is raised in the context of a method or process patent claim involving multiple steps. When an owner of such a patent sues the United States for infringement under the provisions of 28 U.S.C. § 1498, the statute that authorizes such suits against the Government, does the fact that some or all of the steps are performed in a foreign country preclude recovery? If so, is this because of some inherent limitation in § 1498(a), or is it because of the express statutory exception in § 1498(c) for a claim “arising in a foreign country”? This is not only a new question of statutory interpretation, but because of the way the Supreme Court and this court have understood § 1498, there are significant constitutional overtones as well.

You can access the complete decision at this link.

Posted at 3:15 PM by Howard Bashman



Not to minimize the value of a properly-formatted federal appellate court brief: The U.S. Court of Appeals for the Sixth Circuit appointed appellate counsel under the Criminal Justice Act to represent a federal prisoner pursuing an appeal from the denial of the prisoner’s habeas corpus action. Yet, according to a dissenting opinion filed today, the attorney did little more than ensure that the prisoner’s pro se appellate brief was properly formatted. The majority proceeds to address and reject the merits of the appeal, while the dissent would appoint replacement appellate counsel to brief and argue the matter anew.

Posted at 11:50 AM by Howard Bashman



In today’s mail: A bobblehead doll depicting the shortest-serving Chief Justice of the United States in history.

Posted at 11:22 AM by Howard Bashman



Tom Goldstein of “SCOTUSblog” is on the cover of the April 10, 2006 issue of The New Republic: You can view an image of that issue’s cover by clicking here.

According to the article, written by Noam Scheiber, “[I]f the proper measure of influence is the extent to which one has shaped the Court’s norms and culture, then there is no debate at all. It’s not Roberts’s Court, nor even Stevens’s. It is Tommy Goldstein’s.” The article’s text is not yet freely available online.

Posted at 10:40 AM by Howard Bashman



“Because the Fourth Amendment already has more holes in it than a piece of Swiss cheese and the panel’s decision adds another errantly-fired cannon-ball sized hole, I dissent from the Court’s decision denying rehearing en banc.” So writes Circuit Judge Boyce F. Martin, Jr. in dissenting today from the U.S. Court of Appeals for the Sixth Circuit‘s decision to deny rehearing en banc of a ruling that I first reported on last December in a post titled “Putting a number on probable cause.”

Posted at 10:32 AM by Howard Bashman



“Skilling Lawyer Could Be Key for Lay, Too”: This article appears today in The Washington Post.

The Chicago Tribune today contains an article headlined “Skilling’s faith firm in storm of Enron; Weatherman supports his younger brother Jeffrey in fraud trial.”

The Houston Chronicle reports today that “Barge verdicts may not stand; Defendant’s release may signal overturning of convictions.”

And The New York Times reports today that “Judges Order Release on Bail for Ex-Broker in Enron Case.”

Posted at 9:00 AM by Howard Bashman



“Judge Visits San Quentin Execution Site; The jurist who ordered changes in the lethal injection method tours the death chamber”: Henry Weinstein has this article today in The Los Angeles Times.

In The San Francisco Chronicle, Bob Egelko reports today that “Judge visits San Quentin prison’s death chamber; Head of execution team testifies about injection procedures.”

And in The San Jose Mercury News, Howard Mintz reports that “Judge gets execution site tour; San Quentin visit is prelude to May death penalty hearing.”

Posted at 8:54 AM by Howard Bashman



“At Sept. 11 Trial, Tale of Missteps and Management”: The New York Times contains this article today.

The Washington Post reports today that “Moussaoui Jury Pauses For Query, Resumes; Panel Is Deciding If 9/11 Conspirator Is Eligible for Death.” The newspaper also contains an editorial entitled “Mr. Moussaoui’s Confession: His testimony confirms the government’s case; But is it true?

The Los Angeles Times reports that “‘Weapons of Mass Destruction’ Defined for Moussaoui Jury.”

The Richmond Times-Dispatch reports that “Jurors deliberate Moussaoui’s fate; They pause to request a definition of ‘weapon of mass destruction.’

And The Associated Press provides reports headlined “Deliberations Continue in Moussaoui Trial” and “Moussaoui Case Tests Judge’s Patience.”

Posted at 8:35 AM by Howard Bashman



“Catholic billionaire envisions city of God; The founder of Ave Maria, Fla., plans a university and town devoted to strict religious values”: This article appears today in The Chicago Tribune.

Posted at 7:24 AM by Howard Bashman



“Massachusetts Curb on Gay Marriage Upheld; The state’s highest court rules that municipal clerks must heed a 1913 law that prohibits the issuing of licenses to out-of-state couples”: The Los Angeles Times contains this article today.

The Boston Globe today contains articles headlined “Mass. can bar marriage for nonresident gay couples; SJC rules that home state’s laws prevail“; “Ruling shrinks issue to those from states without explicit ban“; and “For Reilly, victory may be incomplete; Legal win could be political loss in gubernatorial race.”

The Boston Herald reports that “Gay-wed opponents cheered by SJC ruling.” The newspaper also contains an editorial entitled “Marriage muddle a slippery slope.”

And The Washington Times reports that “Non-state gays cannot ‘marry.’

Posted at 7:20 AM by Howard Bashman



“Intelligence Redo Is Harshly Judged; A Judge Critiques 9/11 Overhaul, and Finds It Top-Heavy”: The Washington Post today contains an article that begins, “U.S. Court of Appeals Judge Richard A. Posner sharply criticized the restructuring of U.S. intelligence agencies last week, telling CIA lawyers that the overhaul has done nothing to rectify flaws exposed by al-Qaeda’s Sept. 11, 2001, attacks and that the changes ‘in the end … will amount to rather little.'”

Posted at 7:08 AM by Howard Bashman



“More Subpoenas in Suit Over Obscenity Law”: The New York Times today contains an article that begins, “Both the Justice Department and the American Civil Liberties Union confirmed yesterday that they had requested and received information from Internet service providers and software makers in connection with an A.C.L.U. lawsuit challenging an anti-pornography law.”

Posted at 7:00 AM by Howard Bashman



“Church fires photog over Scalia picture; Freelancer pays for ‘right thing'”: Today’s edition of The Boston Herald contains an article that begins, “A freelance photographer has been fired by the Archdiocese of Boston’s newspaper for releasing a picture of U.S. Supreme Court Justice Antonin Scalia making a controversial gesture in the Cathedral of the Holy Cross on Sunday.”

Posted at 6:54 AM by Howard Bashman



“Wash. Website Owner Wins Free Speech Case”: The Associated Press provides a report that begins, “The state Supreme Court ruled Thursday a trial judge overreached his authority when he restricted a man from posting information on a Web site.”

You can access yesterday’s ruling of the Washington State Supreme Court at this link.

Posted at 6:45 AM by Howard Bashman



“The Threshold Hurdles in the Lawsuit Alleging that the President Signed a Budget Bill the House Never Passed”: Vikram David Amar has this essay online today at FindLaw.

Posted at 6:33 AM by Howard Bashman