How Appealing

Wednesday, July 2, 2008

"11th Circuit Sides With National Geographic in Copyright Case; Judges vote 7-5 that freelancers cannot collect royalties from magazine's CD-ROM of its archives": provides this report.

My earlier coverage of Monday's Eleventh Circuit en banc ruling appears at this link.
Posted at 11:55 PM by Howard Bashman

"Bush to Close Guantanamo?" ABC News correspondent Jan Crawford Greenburg has this post at her "Legalities" blog.
Posted at 11:50 PM by Howard Bashman

How should a federal appellate court predict state law -- in the absence of guidance from the State's highest court -- in a State that utilizes regional intermediate appellate courts? When it comes to predicting Florida law in the absence of any definitive ruling from Florida's highest court, the Eleventh Circuit uses an interesting approach, as this decision issued today illustrates.

I would think that it would be better practice for a federal appellate court, when faced with no on-point ruling from a State's highest court and conflicting rulings on the issue from regional state intermediate appellate courts, to predict how the highest state court would rule instead of merely applying the holding of the regional intermediate appellate court that would have decided the appeal had the case been filed in state court.
Posted at 10:40 PM by Howard Bashman

En banc Eleventh Circuit finds itself evenly divided over disposition of Section 2 vote dilution claim from Glades County, Florida: You can access today's order of the en banc U.S. Court of Appeals for the Eleventh Circuit at this link.

The majoriity on a divided three-judge Eleventh Circuit panel, in July 2007, issued this decision reversing the entry of judgment against the plaintiffs. My earlier coverage of that ruling appears here. At that time, Law Professor Rick Hasen, at his "Election Law" blog, predicted that this case could end up before the U.S. Supreme Court. If today's evenly divided en banc result is any indication, Rick's prediction may indeed prove accurate.
Posted at 09:05 PM by Howard Bashman

Exactly what sort of footwear are Teva Sports Sandals? A three-judge panel of the U.S. Court of Appeals for the Federal Circuit considered that question in a ruling issued today.
Posted at 08:30 PM by Howard Bashman

Available from National Review Online: Jonathan H. Adler has an essay entitled "What Happened to the 'Conservative Court'? Lessons learned from another year of the Roberts Court."

Andrew C. McCarthy has an essay entitled "Some Evolution: The fraudulent 'consensus' behind the Supreme Court's child-rape ruling."

Anthony Dick has an essay entitled "Constitutional Torture: Standard judicial malpractice."

Rich Lowry has an essay entitled "America's Worst Justice: Kennedy fashions himself an instructor to the nation; And he is -- in the arbitrary ways of judicial lawlessness."

And Thomas Sowell has an essay entitled "Courting the Future: High stakes."
Posted at 08:24 PM by Howard Bashman

"Young Lawyer Takes Victory Lap After Supreme Court Gun Case Win": Joe Palazzolo has this article online at
Posted at 08:10 PM by Howard Bashman

"Book Ponders How To End Detainees' Legal Limbo": This audio segment (RealPlayer required) featuring Benjamin Wittes appeared on yesterday's broadcast of NPR's "Morning Edition."

Sunday in The Los Angeles Times, Pulitzer Prize-winning historian David J. Garrow had this review of the book, "Law and the Long War: The Future of Justice in the Age of Terror," by Benjamin Wittes.

And last Saturday in The Wall Street Journal, Gabriel Schoenfeld had this review of the book.
Posted at 08:05 PM by Howard Bashman

"'Thurgood' Plays To Standing Ovations On Broadway": This audio segment (RealPlayer required) featuring Nina Totenberg appeared on this evening's broadcast of NPR's "All Things Considered."
Posted at 07:50 PM by Howard Bashman

"Not Your Father's Court": Today's installment of CBS News legal analyst Andrew Cohen's "CourtWatch" column begins, "The Supreme Court's decisions this past term speak for themselves."
Posted at 03:12 PM by Howard Bashman

"Greenhouse and Fidell's last laugh": Mark Obbie has this post at his "LawBeat" blog.
Posted at 02:10 PM by Howard Bashman

Available online from The Weekly Standard: In the July 7, 2008 issue of that publication, Matthew Continetti has an essay entitled "An Indecent Decision: Justice Kennedy's atrocious child rape ruling."

Erin Sheley has an essay entitled "Dead Men Walking: Why Kennedy v. Louisiana could spell the beginning of the end of the death penalty."

And Hans A. von Spakovsky has an essay entitled "A Priceless Opinion: The Supreme Court strikes down the Millionaire's Amendment."
Posted at 02:02 PM by Howard Bashman

"Minot derailment victims win 8th Circuit case": The Associated Press provides a report that begins, "The 8th U.S. Circuit Court of Appeals has ruled that a federal law change approved in response to a deadly train derailment and chemical spill on the edge of Minot is constitutional. Legislation signed by President Bush last August says people can bring personal-injury lawsuits against railroads in state court under certain circumstances. A federal judge had ruled earlier that the Federal Railroad Safety Act protected Canadian Pacific Railway from such claims stemming from the January 2002 Minot derailment. Congress later changed the law. Canadian Pacific argued the change was unconstitutional."

In January 2008, The Minneapolis Star Tribune published an article about the case headlined "When justice knows no timetable: Nearly six years to the day after a train derailed in Minot, N.D., injuring hundreds in a cloud of anhydrous ammonia, the latest round of a court battle opens for those seeking compensation."

And in July 2007, The Associated Press published an article headlined "Open door for Minot train derailment victims."

You can access today's ruling, by a divided three-judge panel of the U.S. Court of Appeals for the Eighth Circuit, at this link.

The case presents an interesting separation of powers issue: may the U.S. Congress retroactively "clarify" federal law to specify an absence of preemptive intent after the question of preemption has already been decided on appeal, U.S. Supreme Court review of the preemption question has been denied, and the underlying claims have been dismissed by a federal district judge on remand from the Eighth Circuit's earlier ruling, which found federal preemption under the Federal Railroad Safety Act. The majority in today's ruling answers "yes." The result is to revive the plaintiffs' claims, the merits of which will now be addressed in state court.
Posted at 01:57 PM by Howard Bashman

"Plaintiffs drove a truck that displayed enlarged, graphic photographs of early-term aborted fetuses around the perimeter of a public middle school in Rancho Palos Verdes, California." So begins an opinion that the U.S. Court of Appeals for the Ninth Circuit issued today.
Posted at 01:37 PM by Howard Bashman

Available online from Pamela A. MacLean of The National Law Journal has an article headlined "A Tricky Bid for More Federal Judges; Long-shot bill, with caveat, adds 50 to U.S. bench."

Shannon P. Duffy of The Legal Intelligencer has an article headlined "Sources: Senators Agree on New Federal Judges Package." According to this article, the White House plans to withdraw the nomination of U.S. District Judge Gene E.K. Pratter to the U.S. Court of Appeals for the Third Circuit and instead nominate U.S. District Judge Paul S. Diamond to that federal appellate court.
Posted at 10:15 AM by Howard Bashman

In commentary available online from FindLaw: Anthony J. Sebok has an essay entitled "The Lessons of the Supreme Court's Recent Decision Granting a Huge Victory to Exxon in the Exxon Valdez Oil Spill Case."

And Joanne Mariner has an essay entitled "Uighurs at Guantanamo."
Posted at 09:45 AM by Howard Bashman

"In Court Ruling on Executions, a Factual Flaw": Linda Greenhouse has this article today in The New York Times. The article is based on this blog post at "CAAFlog."
Posted at 09:35 AM by Howard Bashman

"The Annotated Bobblehead: Justice Louis D. Brandeis." With thanks to The Green Bag, you can view the Justice Brandeis bobblehead in living color by clicking here.
Posted at 07:45 AM by Howard Bashman

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