How Appealing

Monday, June 19, 2006

"In this mandamus action, Qwest Communications International, Inc. presents an issue of first impression in this circuit, namely, whether Qwest waived the attorney-client privilege and work-product doctrine, as to third-party civil litigants, by releasing privileged materials to federal agencies in the course of the agencies' investigation of Qwest." So begins an opinion that a unanimous three-judge panel of the U.S. Court of Appeals for the Tenth Circuit issued today. Today's ruling states: "On the record before us, we hold that the district court did not abuse its discretion in declining to apply selective waiver."
Posted at 09:15 PM by Howard Bashman

On this evening's broadcast of NPR's "All Things Considered": The broadcast contained segments entitled "Divided Supreme Court Rules on Wetlands Law" (featuring Nina Totenberg) and "High Court Approves of Using 911 Calls as Evidence." RealPlayer is required to launch these audio segments.
Posted at 08:54 PM by Howard Bashman

"Court Gives Philip Morris $2B of Bond": The Associated Press provides a report that begins, "The Illinois Supreme Court on Monday returned some of the massive appeal bond that Philip Morris USA posted in a lawsuit over the company's 'light' cigarettes."
Posted at 08:43 PM by Howard Bashman

"Supreme Court Justices Show Support for Wetlands Protection": David G. Savage of The Los Angeles Times provides this news update.

In Tuesday's edition of The Christian Science Monitor, Warren Richey will have an article headlined "Supreme Court splits over protecting wetlands; The Clean Water Act might not prevent building on them."

The St. Louis Post-Dispatch on Tuesday will report that "Justices split over wetlands protections."

Bill Mears of reports that "High court splits over wetlands protection; Case reveals deep divisions among justices."

And Greg Stohr of Bloomberg News reports that "Clean Water Act Reach Limited."
Posted at 08:30 PM by Howard Bashman

"Justices accept another abortion case; Court expected to rule on pair of challenges in the fall": Bill Mears provides this report at
Posted at 08:22 PM by Howard Bashman

The U.S. Senate has confirmed Sandra Segal Ikuta to serve on the U.S. Court of Appeals for the Ninth Circuit by a vote of 81-0: I will link to the official roll call tally once it becomes available.

Update: The official roll call tally can be accessed here.
Posted at 05:59 PM by Howard Bashman

"Justice Alito's Pitching Arm?" The "Sports Law Blog" provides this post. My earlier coverage appears here and here.
Posted at 05:28 PM by Howard Bashman

"The Battle of Hudson Heights: A small case may portend big changes to the exclusionary rule." Law Professor Akhil Reed Amar has this jurisprudence essay online at Slate.
Posted at 05:20 PM by Howard Bashman

"We consider whether Los Angeles police officers violated an individual's constitutional rights by arresting him for his suspected role in the theft of Oscar statuettes to be presented by the Academy of Motion Picture Arts and Sciences on Academy Awards night in March 2000." So begins an opinion that a unanimous three-judge panel of the U.S. Court of Appeals for the Ninth Circuit issued today.
Posted at 05:02 PM by Howard Bashman

"High Court Splits on Wetlands Protections; Justices Agree to Widen Review of Federal Partial-Birth Abortion Ban":'s Tony Mauro provides this news update.
Posted at 04:40 PM by Howard Bashman

"Hearing for Guantanamo Prisoner Delayed": The Associated Press provides this report.
Posted at 03:55 PM by Howard Bashman

The Reno Gazette-Journal launches the "Judge Shooting Blog": You can access the blog by clicking here.
Posted at 03:50 PM by Howard Bashman

"Supreme Court to Hear Abortion Case": This audio segment (RealPlayer required) featuring Dahlia Lithwick appeared on today's broadcast of NPR's "Day to Day."
Posted at 03:10 PM by Howard Bashman

The Associated Press is reporting: Now available online are articles headlined "Top Court Won't Hear Holocaust Claim Case" and "Supreme Court Rejects Glaxo Appeal."
Posted at 03:00 PM by Howard Bashman

Second Circuit rejects criminal defendant's argument that the federal district court, in sentencing the defendant, violated the defendant's First Amendment rights by weighing the defendant's published writings against the mitigating character evidence that defendant offered: You can access today's ruling at this link.
Posted at 02:55 PM by Howard Bashman

Follow-up on yesterday's post about Justice Samuel A. Alito, Jr.'s appearance at the Phillies-Devil Rays game to throw out the ceremonial first pitch: In addition to appearing on the field before yesterday's baseball game, Justice Alito also joined the television broadcasters for the Phillies in the booth for the top of the 5th inning. Scott Graham and Chris Wheeler spoke with Justice Alito about his stint as a second baseman at the Phillies Dream Week in the mid-1990s. Justice Alito also briefly spoke about the confirmation experience, Jim Bunning's perfect game on Father's Day in 1964, and his visit recently with U.S. Senator Jim Bunning (R-KY). During his time on the air, Justice Alito orally delivered the opinion that Citizens Bank Park is the nicest baseball stadium he has ever visited. In addition, Justice Alito took the opportunity to express his appreciation for second baseman Chase Utley's amazing scoop play to Jimmy Rollins, which occurred during Justice Alito's interview, thwarting the Devil Ray's pitcher's attempt at a sacrifice bunt. You can view the play (and, if you listen closely, hear Justice Alito's voice in the background) via this link from
Posted at 02:04 PM by Howard Bashman

"S.D. to Vote on Abortion Law in Nov." The Associated Press provides this report.
Posted at 11:00 AM by Howard Bashman

Today's U.S. Supreme Court Order List and opinions in argued cases: The Court issued three opinions in argued cases today.

1. The Court issued its ruling in Rapanos v. United States, No. 04-1034. You can access the syllabus for this splintered 5-4 ruling at this link. Justice Antonin Scalia announced the judgment of the Court and delivered an opinion in which the Chief Justice and Justices Clarence Thomas and Samuel A. Alito, Jr. joined. The Chief Justice also issued a concurring opinion. Justice Anthony M. Kennedy issued an opinion concurring in the judgment. Justice John Paul Stevens issued a dissenting opinion, in which Justices David H. Souter, Ruth Bader Ginsburg, and Stephen G. Breyer joined. And Justice Breyer also issued a separate dissenting opinion. You can access the oral argument transcript here. Additional background on the case is available at this link.

2. The Court issued its rulings in Davis v. Washington, No. 05-5224, consolidated with Hammon v. Indiana, No. 05-5705. You can access the syllabus here. Justice Scalia delivered the opinion of the Court, in which the Chief Justice and Justices Stevens, Kennedy, Souter, Ginsburg, Breyer, and Alito joined. Justice Thomas issued an opinion concurring in the judgment in part and dissenting in part. You can access the oral argument transcripts here and here. Additional background on these consolidated cases is available at this link.

3. The Court issued its ruling in Samson v. California, No. 04–9728, holding by a vote of 6-3 that the Fourth Amendment does not prohibit a police officer from conducting a suspicionless search of a parolee. Justice Thomas delivered the opinion of the Court, in which the Chief Justice and Justices Scalia, Kennedy, Ginsburg, and Alito joined. Justice Stevens issued a dissenting opinion, in which Justices Souter and Breyer joined. You can access the syllabus here; Justice Thomas's opinion here; Justice Stevens' dissenting opinion here; and the oral argument transcript here. Additional background on the case is available at this link.

The Court also issued a per curiam opinion in Youngblood v. West Virginia, No. 05-6997. You can access the per curiam opinion here; Justice Scalia's dissenting opinion, in which Justice Thomas joined, here; and Justice Kennedy's dissenting opinion here.

You can access today's Order List at this link. The Court today granted review in three cases and called for the views of the Solicitor General in an additional case.

One of the cases in which review was granted today is Gonzales v. Planned Parenthood Fed'n of Am., Inc., No. 05-1382, which presents the question "Whether, notwithstanding Congress's determination that a health exception was unnecessary to preserve the health of the mother, the Partial-Birth Abortion Ban Act of 2003 is invalid because it lacks a health exception or is otherwise unconstitutional on its face." You can access online both the federal government's cert. petition and its reply brief in support thereof. It is interesting to note that the federal government, even though it is the petitioner, in fact opposed as duplicative the granting of review in this case.

At "SCOTUSblog," Lyle Denniston has posts titled "Decisions: Clean Water Act reach limited" and "Orders: Court expands abortion review."

And in early news coverage, Gina Holland of The Associated Press reports that "Top Court Split Over Wetlands Protections" and "Top Court Won't Block Part of Drug Program." The AP also provides reports headlined "Top Court: Victims' Statements Admissible"; "Top Court Adds 2nd Abortion Case to Docket"; and "High Court Reaffirms Parolees' Searches."
Posted at 10:35 AM by Howard Bashman

On the agenda: At 10 a.m. eastern time today, the Supreme Court of the United States will issue additional opinions in argued cases and an Order List.

Shortly after 10 a.m., Lyle Denniston will begin providing real-time coverage at "SCOTUSblog" of today's developments from the Court. The Associated Press will also provide prompt news coverage here and here. The Legal Information Institute at Cornell Law School is typically the first place where you will find online the Supreme Court's newest opinions and Order List. At the Court's own site, you can currently access all of this Term's oral argument transcripts, and you will eventually be able to find the opinions and Order List issued today.

Also today, at 4 p.m. eastern time, the U.S. Senate will conduct one hour of debate on the nomination of Sandra Segal Ikuta to the U.S. Court of Appeals for the Ninth Circuit. An up-or-down vote on that nomination is then scheduled to occur at 5 p.m. eastern time today, and that nominee's confirmation by an overwhelming (perhaps unanimous) vote is expected to occur at that time.

Stay tuned throughout the day for continuing coverage, although my initial coverage of today's U.S. Supreme Court opinions and orders may be slightly delayed.
Posted at 09:45 AM by Howard Bashman

"Call a search a search": In today's issue of The National Law Journal, Law Professor Michael Goldsmith has an essay that begins, "We will never know whether the National Security Agency telephone data-retrieval program meets constitutional norms because the U.S. Supreme Court has defined the issue out of existence."
Posted at 09:23 AM by Howard Bashman

"Law firms learn how to compete; Rivalry forces attorneys to act like a business, seeking data on other firms and their clients": This article appears today in The Boston Globe.
Posted at 09:20 AM by Howard Bashman

"How Racial Preferences Backfire": Stuart Taylor Jr. has this essay in today's issue of National Journal.
Posted at 09:08 AM by Howard Bashman

"A warranted decision: Court gets the 4th Amendment right." This editorial appears today in The Manchester (N.H.) Union Leader.

The Las Vegas Review-Journal today contains an editorial entitled "Police no longer need to knock: Supreme Court majority flushes the Fourth Amendment."

The Baltimore Sun contains an editorial entitled "Failure to knock."

And The New York Sun contains an editorial entitled "Who's There?"
Posted at 07:00 AM by Howard Bashman

Available online from An article reports that "9th Circuit Rebukes Bankruptcy Court for Dismissing Sex Bias Claims."

In other news, "In Likely First, 2nd Circuit Overturns Departure From Sentencing Guidelines."

And the newest installment of my weekly "On Appeal" column is headlined "8th Circuit's Bush Appointees Confound the Prognosticators."
Posted at 06:55 AM by Howard Bashman

"Judges to Rule on Use of English-Only Initiative Petitions; Federal appeals court to decide if initiative forms must be translated for non-English speakers": The Los Angeles Times contains this article today.
Posted at 06:54 AM by Howard Bashman

"Wisconsin puts death to a vote; Referendum may help end 150-year ban on executions": This article appears today in The Chicago Tribune.
Posted at 06:50 AM by Howard Bashman

"A Death Sentence Courts Can't Seem to Live With": Today's edition of The Los Angeles Times contains an article that begins, "Ellen May was 9 years old when Johnny Paul Penry was sentenced to death for the rape and murder of her beloved aunt, Pamela Moseley Carpenter. With the punishment decided, May waited for the day that would be Penry's last. Twenty-six years later, she's still waiting."
Posted at 06:45 AM by Howard Bashman

"The Detention Dilemma: What is to be done with captured terrorists who are neither prisoners of war nor charged with a crime?" This editorial appears today in The Washington Post.
Posted at 06:40 AM by Howard Bashman

"Appeal Focuses on Protecting Ancient Sites": The Associated Press provides this report about the Ninth Circuit's theft of petroglyphs ruling from earlier this year. My previous coverage appears at this link.
Posted at 06:35 AM by Howard Bashman

"Why won't Chief Justice Roberts call us 'gays'?" Columnist Deb Price has this op-ed today in The Detroit News.
Posted at 06:28 AM by Howard Bashman

The Philadelphia Inquirer is reporting: Today's newspaper contains articles headlined "Specter: A wedge for Republicans" and "Legal fees in pay-raise suits pile up; Outside firms are charging to defend top officials; So far the tally has topped $1 million."
Posted at 06:24 AM by Howard Bashman

"Blawg Review #62": Available here, at "New World Man."
Posted at 06:15 AM by Howard Bashman

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