How Appealing

Tuesday, August 22, 2006

"U.S. District Judge Who Presided Over Government Wiretapping Case May Have Had Conflict of Interest": The organization Judicial Watch issued this press release yesterday.
Posted at 09:08 PM by Howard Bashman

"Court orders New Trial for Doctor": The Associated Press provides a report that begins, "A doctor convicted of drug trafficking for prescribing massive doses of OxyContin and other painkillers to his patients will get a new trial."

You can access today's ruling of the U.S. Court of Appeals for the Fourth Circuit at this link.
Posted at 06:07 PM by Howard Bashman

"Limits of Executive Power": Today's broadcast of the public radio program "On Point" contained this lengthy segment (listen in either RealPlayer or Windows Media format) featuring Law Professors Laurence H. Tribe and Douglas W. Kmiec.
Posted at 05:10 PM by Howard Bashman

"Stock Conflict Cited in 9th Circuit Judge's Trademark Rulings": Last month, posted online an article that begins, "After losing two trademark cases, an attorney for a software company is trying to get the rulings thrown out because one of the 9th Circuit judges hearing the case apparently had a financial conflict. Judge Harry Pregerson wrote opinions favoring Time Warner in two cases in which M2 Software fought the multimedia giant over the trademark to the name 'M2.' Mark Pettinari, representing M2 of Los Angeles, says Pregerson owned stock in Time Warner at the time he heard the cases and issued the rulings."

Today, the U.S. Court of Appeals for the Ninth Circuit posted online two separate opinions (available here and here) from Circuit Judge Harry Pregerson in which he explains why he was not required to recuse in either case.
Posted at 05:05 PM by Howard Bashman

"Why Should We be 'Boxed In' by the Constitution and Laws of the United States?" At the "Balkinization" blog, Marty Lederman has a post that begins, "In today's Wall Street Journal, Judge Richard Posner laments the fact that the federal courts are available to adjudicate whether the President's chosen methods of fighting the war on terror are consistent with the Constitution and laws of the United States."
Posted at 04:45 PM by Howard Bashman

First Circuit holds that federal Visual Artists Rights Act of 1990 does not protect site-specific art: You can access today's ruling of the U.S. Court of Appeals for the First Circuit at this link.
Posted at 04:00 PM by Howard Bashman

"Graham showed courage": This past Sunday's issue of The Herald of Rock Hill, South Carolina contained an editorial that begins, "Sen. Lindsey Graham, R-S.C., is taking heat from some critics for his role in the rejection of William J. 'Jim' Haynes as a candidate for a seat on the 4th Circuit Court of Appeals."
Posted at 04:00 PM by Howard Bashman

"The Constitution vs. Counterterrorism": Today in The Wall Street Journal, Seventh Circuit Judge Richard A. Posner has an op-ed (pass-through link) that begins, "Last week a federal district judge in Detroit ruled that the National Security Agency's conduct of electronic surveillance outside the boundaries of the Foreign Intelligence Surveillance Act is illegal. As a judge I cannot comment on the correctness of her decision. But I can remark on the strangeness of confiding so momentous an issue of national security to a randomly selected member of the federal judiciary's corps of almost 700 district judges, subject to review by appellate and Supreme Court judges also not chosen for their knowledge of national security."
Posted at 01:44 PM by Howard Bashman

"Appeals court refuses to reinstate 'top-two' primary in Washington": The Associated Press provides a report that begins, "A three-judge panel of the 9th Circuit U.S. Court of Appeals on Tuesday refused to reinstate Washington's 'top-two' primary system, saying it infringes on the rights of political parties to choose their own nominees."

You can access today's ruling of the U.S. Court of Appeals for the Ninth Circuit at this link.

Update: Law Professor Rick Hasen offers his initial thoughts on the ruling at his "Election Law" blog.
Posted at 01:34 PM by Howard Bashman

"Is a Federal Tax on Damages for Emotional Distress Unconstitutional?" Marty Lederman has this post at the "Balkinization" blog questioning the soundness of today's D.C. Circuit ruling.

And "TaxProf Blog" offers these thoughts on the ruling.
Posted at 01:30 PM by Howard Bashman

"Government suffers setback as Padilla terror count tossed; The U.S. government's terrorism case against former 'enemy combatant' Jose Padilla and two other Muslim codefendants suffered a major setback in federal court in Miami": This article appears today in The Miami Herald.
Posted at 12:15 PM by Howard Bashman

"Constitutional Limits on the Power to Tax": At "The Volokh Conspiracy," Orin Kerr has this post about today's D.C. Circuit ruling, which I blogged about earlier here.

And additional coverage of the ruling can be accessed here from Paul Mollica's "Daily Developments in EEO Law."
Posted at 12:08 PM by Howard Bashman

"If one imagines the federal judiciary as running a vast, multi-topic blog - which is not a bad way to view Anglo-American common-law adjudication - the Nigerian-barge ruling would be the latest posting in a lively thread that's been going on for more than a generation." That sentence comes from an article headlined "Redefining fraud: Judicial opining; Reversals in the 'Nigerian barge case' won't help Jeff Skilling; But they revive a debate about what's fraud and what isn't" published in the September 4, 2006 issue of Fortune magazine.
Posted at 11:55 AM by Howard Bashman

"The record is clear that South Dakota's history of discrimination against Native-Americans has limited their ability to succeed in the state political process. The vestiges of this discrimination remain, dampening Native-American interest in South Dakota politics and affecting the ability of Native-Americans to register, to vote, and to participate in the electoral process." A three-judge panel of the U.S. Court of Appeals for the Eighth Circuit today issued a decision affirming a federal district court's ruling that South Dakota's 2001 legislative redistricting violated Section 2 of the Voting Rights Act by packing District 27 with Native-Americans at the expense of District 26.
Posted at 11:30 AM by Howard Bashman

"Court reinstates former athletic director's discrimination suit": The Associated Press provides this report. My earlier coverage appears here.
Posted at 11:15 AM by Howard Bashman

I'm too sexy for my billboard: The Kansas City Star reports today that "Sex-ad billboards will stay; A court knocks down a Missouri law banning adult-oriented signs near state highways."

The St. Louis Post-Dispatch reports today that "Court rejects billboard law."

And The Associated Press reports that "Court KOs Billboard Law."

My earlier coverage appears at this link.
Posted at 11:12 AM by Howard Bashman

"Two Pep Boys Heirs Booted From Trust": Yesterday evening, The Legal Intelligencer posted online this news update (free access) written by Asher Hawkins. As noted in the final version of the article (subscription required) published in today's issue of that newspaper, I'm serving as appellate co-counsel for those two individuals.
Posted at 11:02 AM by Howard Bashman

"Blogging for Dollars: It's not just a hobby -- some small sites are making big money; Here's how to turn your passion into an online empire." This article appears in the September 2006 issue of Business 2.0 magazine.
Posted at 10:58 AM by Howard Bashman

The D.C. Circuit orders the Federal Bureau of Investigation to use Google to determine whether the speakers on an audiotape whose production an author seeks under the Freedom of Information Act are dead or alive: You can access today's ruling at this link.

On page 17 of today's opinion, Circuit Judge Merrick B. Garland writes for a unanimous three-judge panel:

But if that is so, one has to ask why -- in the age of the Internet -- the FBI restricts itself to a dead-tree source with a considerable time lag between death and publication, with limited utility for the FBI's purpose, and with entries restricted to a small fraction of even the "prominent and noteworthy"? Why, in short, doesn't the FBI just Google the two names? Surely, in the Internet age, a "reasonable alternative" for finding out whether a prominent person is dead is to use Google (or any other search engine) to find a report of that person’s death. Moreover, while finding a death notice for the second speaker -- the informant -- may be harder (assuming that he was not prominent), Googling also provides ready access to hundreds of websites collecting obituaries from all over the country, any one of which might resolve that speaker's status as well. See, e.g., (hosting the obituary sites of more than 275 newspapers, including three Louisiana papers); (containing a directory of links to online obituaries and death notices in every state).
Notably, however, today's opinion does not require the FBI to use Wikipedia to determine whether the speakers on the tape are dead or alive.
Posted at 10:23 AM by Howard Bashman

D.C. Circuit declares a provision of the federal tax code unconstitutional as applied: Today's ruling, by a unanimous three-judge panel, holds that "insofar as §104(a)(2) permits the taxation of compensation for a personal injury, which compensation is unrelated to lost wages or earnings, that provision is unconstitutional." You can access the complete ruling at this link.

According to today's opinion, written by Chief Judge Douglas H. Ginsburg, "The Sixteenth Amendment simply does not authorize the Congress to tax as 'incomes' every sort of revenue a taxpayer may receive." The opinion goes on to explain:

As we have seen, it is clear from the record that the damages were awarded to make Murphy emotionally and reputationally "whole" and not to compensate her for lost wages or taxable earnings of any kind. The emotional well-being and good reputation she enjoyed before they were diminished by her former employer were not taxable as income. Under this analysis, therefore, the compensation she received in lieu of what she lost cannot be considered income and, hence, it would appear the Sixteenth Amendment does not empower the Congress to tax her award.
And the opinion concludes
In sum, every indication is that damages received solely in compensation for a personal injury are not income within the meaning of that term in the Sixteenth Amendment. First, as compensation for the loss of a personal attribute, such as well-being or a good reputation, the damages are not received in lieu of income. Second, the framers of the Sixteenth Amendment would not have understood compensation for a personal injury -- including a nonphysical injury -- to be income. Therefore, we hold §104(a)(2) unconstitutional insofar as it permits the taxation of an award of damages for mental distress and loss of reputation.
This appears to be a significant loss for the federal government, and it will be interesting to see the extent to which other circuits will follow today's ruling.

Finally, while today's ruling contains a substantial discussion of the history of what constitutes income for purposes of federal tax law, the opinion will also be of interest to those who study the history of the footnote, as all footnotes contained in the opinion are designated using a single asterisk (*).
Posted at 10:05 AM by Howard Bashman

"State Supreme Court Rejects Appeal of Caregivers Seeking $450,000 Inheritance; Justices rule that helpers may not benefit from changes in wills made by dependent elderly in their final days": This article appears today in The Los Angeles Times.

You can access yesterday's ruling of the Supreme Court of California at this link.
Posted at 07:35 AM by Howard Bashman

"DEA's Khat Sting Stirs Up Somali 'Cultural Clash'; The stimulant is widely used in some countries; But in America, it has resulted in 44 arrests": Sam Howe Verhovek has this article today in The Los Angeles Times.
Posted at 07:28 AM by Howard Bashman

"No Skid Row Accord for City, ACLU; More talks are slated in an effort to resolve a suit over arrests of homeless who camp on sidewalks": This article appears today in The Los Angeles Times.
Posted at 07:25 AM by Howard Bashman

"A Law Unto Herself: The criminal defense attorney is star-struck, young and unorthodox; But don't be fooled; She's also Ivy League, savvy and successful." Today in The Los Angeles Times, Maura Dolan has this profile of attorney Allison Margolin. Allison's blog can be accessed here. [Update: Because that blog includes an image of a partially naked female, a reader emails to suggest that I note that the blog's link is potentially not safe for work.]
Posted at 07:24 AM by Howard Bashman

"Teams woo female fans with freebies, but a lawyer cries foul; Dispute's outcome could have ramifications for Major League Baseball": The Boston Globe contains this article today.
Posted at 07:20 AM by Howard Bashman

"Concern Mounts as Bacteria Resistant to Antibiotics Disperse Widely": This article appears today in The New York Times.
Posted at 07:10 AM by Howard Bashman

"Prosecutor Wins Right To Damages": The New York Sun today contains an article that begins, "A federal appeals court has ruled in favor of a former Brooklyn prosecutor who was demoted after he said his borough was the best place for a prosecutor to work because 'we've got more dead bodies per square inch than anybody else.'"

My earlier coverage appears at this link.
Posted at 07:02 AM by Howard Bashman

"A Victory for Cleaner Air": This editorial appears today in The New York Times.
Posted at 06:58 AM by Howard Bashman

"Judge Orders Justice Department Investigation of Leak to CBS Report": Josh Gerstein has this article today in The New York Sun.
Posted at 06:48 AM by Howard Bashman

"Misconceiving Reproductive Rights: The Crucial Difference Between 'Pro-Choice' and 'Pro-Abortion.'" Sherry F. Colb has this essay online today at FindLaw.
Posted at 06:45 AM by Howard Bashman

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