How Appealing

Monday, May 1, 2017

"Circuit Court Nominees In The Trump Administration: A Nationwide Round-Up; Names, names, and more names, for federal judgeships around the country." David Lat has this post at "Above the Law."
Posted at 11:18 PM by Howard Bashman

"Supreme Court to Explore Power of Congress to Affect Lawsuits; Separation of powers between branches is at issue": Todd Ruger of Roll Call has this report.
Posted at 10:20 PM by Howard Bashman

"Madison lawyer Tim Burns announces Wisconsin Supreme Court run for Michael Gableman's seat": Patrick Marley of The Milwaukee Journal Sentinel has this report.

Molly Beck of The Wisconsin State Journal reports that "Madison attorney announces bid for state Supreme Court."

And Jessie Opoien of The Capital Times of Madison, Wisconsin reports that "Madison attorney Tim Burns will run for Michael Gableman's state Supreme Court seat in 2018."
Posted at 10:18 PM by Howard Bashman

"Split 5th Circ. Denies Bass Pro Discrimination Rehearing Bid": Matthew Perlman of has an article (subscription required for full access) that begins, "Bass Pro Outdoor World's bid for a rehearing of the Equal Employment Opportunity Commission's suit alleging the retailer discriminated against minorities when hiring was denied Friday after the Fifth Circuit split evenly over the issue in a poll."

You can access Friday's order of the U.S. Court of Appeals for the Fifth Circuit denying rehearing en banc by an evenly divided 7-to-7 vote, and the opinions concurring in and dissenting from that order, at this link. And the original three-judge panel's unanimous opinion issued in June 2016, which remains good law, can be accessed here.
Posted at 09:56 PM by Howard Bashman

"Gorsuch, in Sign of Independence, Is Out of Supreme Court's Clerical Pool": Adam Liptak of The New York Times has an article that begins, "In an early sign of Justice Neil M. Gorsuch's independence and work ethic, he has decided not to join a labor pool at the Supreme Court in which justices share their law clerks in an effort to streamline decisions about which cases to hear."
Posted at 06:03 PM by Howard Bashman

In the May 8, 2017 issue of The New Yorker magazine: In the Talk of the Town section, Jelani Cobb has a Comment headlined "The Banal Horror of Arkansas's Executions: With the state's supply of the sedative midazolam due to expire, the proposed schedule came to resemble a lethal clearance sale."

And Evan Osnos has an article headlined "How Trump Could Get Fired: The Constitution offers two main paths for removing a President from office; How feasible are they?"
Posted at 05:22 PM by Howard Bashman

"U.S. appeals court will not rehear 'net neutrality' challenge": David Shepardson and Lawrence Hurley of Reuters have this report.

And Sam Hananel of The Associated Press reports that "Appeals court won't reconsider net neutrality ruling."

You can access today's order of the U.S. Court of Appeals for the D.C. Circuit denying rehearing en banc, and the opinions concurring in and dissenting from that order, at this link.
Posted at 05:14 PM by Howard Bashman

"Pa. Appeals Court Deadlocks On $21M Bad Faith Award": Dan Packel of has this report (subscription required for full access) in which I am quoted.
Posted at 04:08 PM by Howard Bashman

"The Myth of the Neutral Expert: In the context of a capital trial, is there any such thing?" Slate has posted online this new installment of its "Amicus" podcast featuring Dahlia Lithwick.
Posted at 03:42 PM by Howard Bashman

"How Slow Pace of Justice Is Harmful: Texas Edition." Online at Bloomberg View, law professor Noah Feldman has an essay that begins, "What if the U.S. Supreme Court issued a landmark abortion rights ruling -- and nothing changed?"
Posted at 03:39 PM by Howard Bashman

Try, try again: One of the two appeals that I argued before the same three-judge panel of the Superior Court of Pennsylvania on February 2, 2016 in Harrisburg -- both of which have yet to be decided -- has resulted in a deadlock between the two remaining judges after the third judge on the panel recused himself.

As a result, the case has been scheduled for panel reargument in Philadelphia on October 11, 2017. Because there are numerous other Pa. Superior Court panels that are scheduled to hear oral arguments in Harrisburg and Philadelphia between now and October, my best guess is that the October 10th panel will consist of the two non-recused judges from the current panel and a third, yet-to-be-disclosed judge who is already assigned to sit on that panel.

The judge who recused himself made absolutely the right call, as he had not until the eve of oral argument focused on the fact -- due to being extremely busy with other work -- that the insurance company-defendant that was seeking to overturn a large judgment against it in this matter was the same insurance company at which his daughter was employed.

I have been working as an appellate attorney in Pennsylvania for more than 25 years, and this is the first time an appeal I have worked on has had to be reargued due to the inability of the original panel to reach a decision.
Posted at 01:44 PM by Howard Bashman

"OT2016 #20: 'Who Is Calling Justice Breyer?'" You can access today's new episode of the "First Mondays" podcast, featuring Ian Samuel and Dan Epps, via this link.
Posted at 10:25 AM by Howard Bashman

Access today's rulings of the U.S. Supreme Court in argued cases: The Court today issued rulings in two argued cases.

1. Justice Stephen G. Breyer delivered the opinion for a unanimous Court (Justice Neil M. Gorsuch not participating) in Bolivarian Republic of Venezuela v. Helmerich & Payne Int'l Drilling Co., No. 15-423. You can access the oral argument via this link.

2. And Justice Breyer delivered the opinion of the Court in Bank of America Corp. v. Miami, No. 15-1111. Justice Clarence Thomas issued an opinion concurring in part and dissenting in part, in which Justices Anthony M. Kennedy and Samuel A. Alito, Jr. joined. Justice Gorsuch did not participate in the ruling. You can access the oral argument via this link.

In early news coverage, The Associated Press has reports headlined "Supreme Court: Cities can sue banks under fair housing law" and "Justices give Venezuela another chance to toss oil rig case."
Posted at 10:04 AM by Howard Bashman

"Conservatives prepare for Justice Anthony Kennedy's retirement": Ariane de Vogue and Joan Biskupic of have this report.
Posted at 09:58 AM by Howard Bashman

"A POTUS-SCOTUS get-together? Past decisions, current cases could make it a little awkward." Robert Barnes of The Washington Post has this report.
Posted at 09:56 AM by Howard Bashman

"Sent to Prison by a Software Program's Secret Algorithms": Adam Liptak will have this new installment of his "Sidebar" column in Tuesday's edition of The New York Times.
Posted at 09:52 AM by Howard Bashman

"Judicial Confirmations Reached Historic Lows Under Obama": Aebra Coe of has an article (subscription required for full access) that begins, "The U.S. Senate confirmed a smaller percentage of President Barack Obama's district and circuit court nominees during his eight years than any other two-term president going back to Harry S. Truman, according to a recent report by the Congressional Research Service."

You can access the Congressional Research Service report at this link.
Posted at 09:42 AM by Howard Bashman

Access today's Order List of the U.S. Supreme Court: At this link. The Court granted review in two new cases.

In early news coverage, Greg Stohr of Bloomberg News reports that "Gay-Conversion Therapy Ban Survives as Supreme Court Rejects Appeal."

And The Associated Press reports that "Justices won't hear challenge over Alaska polar bear habitat" and "Justices reject appeal in California police shooting lawsuit."
Posted at 09:34 AM by Howard Bashman

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