How Appealing

Thursday, May 25, 2006

"Senate Clears the Way for Kavanaugh Vote": The Associated Press provides this report.
Posted at 07:54 PM by Howard Bashman

The U.S. Senate has just begun to vote on whether to invoke cloture on the nomination of Brett M. Kavanaugh to serve on the U.S. Court of Appeals for the D.C. Circuit: The cloture request is expected to succeed this evening, allowing an up-or-down vote on the nomination to occur, perhaps as early as tomorrow.

Update: By a vote of 67-30, the Senate has invoked cloture.
Posted at 06:03 PM by Howard Bashman

Ludacris calls copyright infringement claim ludicrous: The Associated Press provides this report.

In somewhat related coverage, readers may recall my post from May 2005 titled "The rapper formerly known as 'C-Murder' faced a similar problem."
Posted at 05:28 PM by Howard Bashman

"Experts Says Cheney Can't Avoid Testifying": The Associated Press provides this report.
Posted at 05:20 PM by Howard Bashman

"Appeals court throws out Cobb 'evolution' ruling; More hearings to be held on controversial textbook stickers": Bill Rankin of The Atlanta Journal-Constitution provides this news update.
Posted at 05:18 PM by Howard Bashman

"Judge Becker's Last Criminal Law Opinions -- An Appreciation": Attorney Peter Goldberger has this interesting guest post at the "Third Circuit Blog."

Peter's post concludes, "When Judge Becker presided at oral argument, the red light meant nothing. Argument continued until all questions had been explored thoroughly. It always seemed like he had all the time in the world to try and 'get it right.' Alas, he did not have as much time as we would have wanted him to have, for our own sakes -- many more years of dispensing justice with an even hand, a keen intellect, and a kind heart."
Posted at 04:44 PM by Howard Bashman

"3 in Paintball Case Complain About Trials": The Associated Press provides this report on an appeal argued today before the U.S. Court of Appeals for the Fourth Circuit.
Posted at 04:30 PM by Howard Bashman

"Less Leeway for Religious Colleges": Inside Higher Ed provides a report that begins, "Ministers or other religious officials may sue a religious college for employment discrimination if the institution's reasons for taking the contested employment action are not grounded in 'faith, doctrine, or internal regulation' of the church, a divided federal appeals court ruled Wednesday."
Posted at 04:02 PM by Howard Bashman

"First-cut Enron sentencing questions (and links)": Law Professor Douglas A. Berman has this post at his "Sentencing Law and Policy" blog.
Posted at 03:58 PM by Howard Bashman

In Cobb County, Georgia evolution sticker case, the U.S. Court of Appeals for the Eleventh Circuit remands the case for new evidentiary proceedings and new findings based on the evidence then introduced into the record: Circuit Judge Ed Carnes wrote today's opinion on behalf of a unanimous three-judge panel.

As the introduction to today's opinion explains, "Whether we should reverse or affirm the judgment depends on the evidence that was before the district court, and we cannot tell from the record what that evidence was. Everyone agrees that some evidence presented to the district court has been omitted from the record on appeal, but the attorneys have not been able to identify what was omitted. The problems presented by a record containing significant evidentiary gaps are compounded because at least some key findings of the district court are not supported by the evidence that is contained in the record. We have concluded that the unfilled gaps in the record, coupled with the problematic nature of some of the district court's factfindings, prevent proper appellate review of the merits of the important constitutional issues raised in this case."

The stickers in question, affixed by the defendant school district and board of education inside the front cover of some science textbooks used in the public schools of the county, stated: "This textbook contains material on evolution. Evolution is a theory, not a fact, regarding the origin of living things. This material should be approached with an open mind, studied carefully, and critically considered."
Posted at 03:20 PM by Howard Bashman

"Enron Chiefs Guilty of Fraud and Conspiracy": The New York Times provides this news update.

The Washington Post provides a news update headlined "Jury Convicts Enron's Skilling and Lay."

The Los Angeles Times provides a news update headlined "Enron Executives Guilty on Most Counts."

The Houston Chronicle provides news updates headlined "Enron jurors find Lay, Skilling guilty"; "Enron jury finally speaks out"; and "Enron verdict scorecard, count by count."

Finally, Texas Lawyer provides a news update headlined "Enron's Lay and Skilling Found Guilty."
Posted at 02:25 PM by Howard Bashman

"Opponents of S.D. Abortion Ban Seek Vote": The Associated Press provides this report.
Posted at 02:20 PM by Howard Bashman

Additional thoughts on dead judges voting: On the ConLawProfs email list, both Marty Lederman and Law Professor Edward A. Hartnett have exchanged lengthy emails on this subject this morning. I have reproduced those emails here and here, respectively, at "How Appealing Extra." My earlier posts on this subject can be accessed here and here.

At the risk of overly simplifying matters, Marty notes in his email of this morning that 28 U.S.C. sec. 46 authorizes the "hearing and determination of cases and controversies by separate panels, each consisting of three judges." Marty further notes that the U.S. Supreme Court, in United States v. American-Foreign Steamship Corp., 363 U.S. 685 (1960), held that "A case or controversy is 'determined' when it is decided."

Marty goes on to reason, however, that an appeal is necessarily determined/decided in advance of the date on which an opinion is filed by the Clerk of a federal appellate court, especially in the Third Circuit, where the internal operating procedures require that any precedential opinion be circulated to all active judges before filing. Thus, Marty does not believe that a judge whose vote is dispositive in the outcome of an appeal must remain alive until the date on which the opinion and judgment of the appellate court are filed in order for the judge's vote to count.

I continue to disagree with Marty, and I note that in American-Foreign Steamship the U.S. Supreme Court held that "A case or controversy is 'determined' when it is decided." A large number of federal appellate courts state on the face of their precedential opinions that the date on which the opinion issued is the date on which the case was decided. (See, for example, recent opinions from the D.C. Circuit, the Second Circuit, the Fourth Circuit, the Seventh Circuit, and the Federal Circuit.) This persuasively indicates that the date on which a federal appellate court's decision is filed, and judgment is entered on the federal appellate court's docket, is synonymous with the date on which the case is decided. Moreover, as a matter of common sense, an appeal is not in fact "decided" until the court before which the appeal is pending has issued its decision.

For these reasons, I remain of the view that in order for a federal judge to provide the dispositive vote in support of a federal appellate court's judgment, he or she must be among the living on the date that the judgment is entered on the docket.

Also agreeing with me is Law Professor Stephen I. Vladeck, who emails:

Thanks for taking the blog mantle on such an interesting issue. Marty and I have been exchanging e-mails, and the only thing I'd add to what's already more than deftly covered in your posts so far is the role, if any, of 28 U.S.C. [sec.] 46, including 46(b), which requires that Courts of Appeals (save for the Federal Circuit) sit as three-judge panels, and 46(d), which allows two judges to serve as a quorum (back to the "Circuit Justice Roberts" flap...). Usually, when the two remaining judges agree, 46(d) becomes the basis on which they decide a case involving a deceased (or elevated) jurist, e.g., when Judge Fred Parker passed away last year. See United States v. Allied Stevedoring Co., 241 F.2d 925, 927 (2d Cir. 1957) (L. Hand, J.). There's no suggestion that the missing judge's vote "counts"; rather, all of the cases (except this one) are of the mind that the quorum provision is what saves the day.

If we assume that there comes a point after which missing judges can no longer vote, I still don't think there is a serious argument that the vote of a missing judge invalidates the decision, thanks to 46(d) (but see Nguyen v. United States, 539 U.S. 69 (2003), holding that the presence of a non-Article III judge voids the decisions of a Ninth Circuit panel notwithstanding the presence of a quorum). But it does seem to me that, since case law seems to be clear that it is the date of filing the opinion on which the opinion becomes "law," there's a serious question as to the precedential value of an opinion such as Petruska, which, in my view, should really be seen as an affirmance by an equally divided court

Thanks to all who have emailed to share their views on this interesting topic.
Posted at 01:00 PM by Howard Bashman

"Lay, Skilling Convicted in Enron Collapse": The Associated Press provides this report.

The Houston Chronicle provides a news update headlined "Enron jurors find Lay, Skilling guilty."

And reports that "Skilling and Lay guilty; Ex-CEO and founder convicted on fraud and conspiracy charges in Enron case."

Finally, CBS Radio News is reporting that the judge in Ken Lay's bench trial for bank fraud has also returned a guilty verdict.
Posted at 12:03 PM by Howard Bashman

"Verdict Is Reached in Enron Trial": The Associated Press reports here that "The jury in the fraud and conspiracy trial of Enron founder Kenneth Lay and Jeffrey Skilling has reached a verdict. It will be announced at noon EDT."
Posted at 11:23 AM by Howard Bashman

"Justices Restore Exit Exam; Diplomas for thousands of high school seniors are at risk after the state high court reinstates the test and asks an appeals court to decide the case": This article appears today in The Los Angeles Times.

The San Francisco Chronicle today contains articles headlined "School exit test reinstated by state high court; Foes to appeal ruling that could keep thousands from graduating" and "Some students feel left in the lurch."

The Sacramento Bee reports that "Exit exam back on for class of '06."

And The New York Times reports that "California Court Reinstates Statewide Exit Exam for High Schools."
Posted at 10:45 AM by Howard Bashman

"Ken Starr Has Something to Say":'s "Legal Pad" blog provides a post that begins, "The constitutional fight over marriage in California, though civil, has already exhibited a certain potential for absurdly crowded courtroom scenes."
Posted at 10:35 AM by Howard Bashman

"Senate May Bypass a Battle Over Bush's Federal Court Nominees": Bloomberg News provides a report that begins, "The U.S. Senate, on the brink of gridlock over judicial nominations a year ago, is finessing a showdown over President George W. Bush's most divisive choices for the federal bench."
Posted at 09:35 AM by Howard Bashman

"Counsel Says He May Use Cheney in Libby Trial": This article appears today in The New York Times.

The Washington Post today contains a front page article headlined "Libby Told Grand Jury Cheney Spoke of Plame; Vice President May Be Called as Witness."

And The Los Angeles Times reports that "Cheney Might Testify in Libby Case."
Posted at 07:28 AM by Howard Bashman

"Jury seeks 3 exhibit lists, full transcript; Latest in series of requests may signal thoughtful, slow deliberation": Today in The Houston Chronicle, Mary Flood has an article that begins, "The jury in the fraud and conspiracy trial of former Enron top executives Ken Lay and Jeff Skilling spent a fifth day in the deliberation room Wednesday and is due back today."

And USA Today reports today that "3 Enron cases await verdicts; Judge OKs $6.6B civil settlement."
Posted at 07:25 AM by Howard Bashman

"In Rapt Courtroom, A Struggle of Wills; Muhammad, Malvo Spar on the Stand": This front page article appears today in The Washington Post, along with an article headlined "Muhammad's Ex-Wife Speaks Of Abuse, Fears; Sniper Sought Children, She Says." And columnist Marc Fisher has an essay entitled "The Chilling Alchemy Of a Sniper's Spell."

The Baltimore Sun, meanwhile, contains articles headlined "Malvo, sniper tangle again; Muhammad cross-examines ex-protege for 2nd day, erupts at prosecution objections"; "Muhammad, Malvo vie for upper hand; Defendant seems to seek dominance; his ex-protege resists"; and "Malvo story of Baltimore plot called 'alarming,' 'sobering.'"
Posted at 07:24 AM by Howard Bashman

"When jurors have a say: Some courts are letting them actively participate in trials." Columnist Steve Chapman has this op-ed today in The Chicago Tribune.
Posted at 07:18 AM by Howard Bashman

"Supreme Court: 9-0 is better than 5-4; Can the chief justice conquer the court's divide by aiming for unanimous rulings instead of swing-voting for the fences?" Law Professor Cass R. Sunstein has this op-ed today in The Los Angeles Times.
Posted at 07:14 AM by Howard Bashman

"A Law Firm Under Pressure: Case Reopens Debate on Whether to Indict a Company." This article appears today in The Washington Post.
Posted at 07:08 AM by Howard Bashman

"Firms Donated to Groups That Gave Judges Free Trips": The Washington Post today contains an article that begins, "Two organizations that have provided free trips to hundreds of federal judges received large contributions from tobacco, oil and other corporate interests, according to documents released yesterday."

Yesterday, Community Rights Counsel issued a press release titled "Tobacco and Oil Company Documents Undercut Groups' Claims to Media, Judges and Public About Corporate Funding for Judges' Junkets."
Posted at 07:05 AM by Howard Bashman

"Breach Was More of the Spirit, Not the Letter, of the Constitution": Today in The Washington Post, Charles Lane has a news analysis that begins, "The FBI raid on Rep. William Jefferson's congressional office was an aggressive tactic that broke a long-standing political custom. But while it might violate the spirit of the Constitution, it might not violate the letter of the document or subsequent rulings by the Supreme Court, legal analysts say."
Posted at 07:00 AM by Howard Bashman

"Interns? No Bloggers Need Apply." This article appears today in The New York Times.
Posted at 06:55 AM by Howard Bashman

"Is Chief Justice Roberts Correct that Unanimous Supreme Court Opinions Are Inherently Desirable? Why Split Decisions and Passionate Dissents Are Sometimes Better." Edward Lazarus today has this essay online at FindLaw.
Posted at 06:44 AM by Howard Bashman

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