How Appealing

Wednesday, October 18, 2006

"Libel suit against News is dismissed; Statute of limitations for Internet starts at posting, judge rules": The Dallas Morning News today contains an article that begins, "A federal judge dismissed a defamation case against The Dallas Morning News this week in a ruling that could have a significant impact on libel actions against online publications. U.S. District Judge David Godbey of Dallas ruled Monday that Texas' one-year statute of limitations on libel actions begins when an article is first posted on the Internet and ends a year later even if the article remains available on the Internet. The one-year statute on libel cases has long been standard in cases involving traditional print media. But Judge Godbey's decision marked one of the first times a judge in Texas has ruled on how the statute should be applied to online articles – an important legal question in an increasingly wired world."

I have posted online at this link Monday's ruling of the U.S. District Court for the Northern District of Texas.
Posted at 10:58 PM by Howard Bashman

Available online from Marcia Coyle reports that "Critics Target Federal Circuit; Reversals cast patent court in harsh light."

And in other news, "2nd Circuit Upholds Verdicts in Multibillion-Dollar World Trade Center Insurance Dispute."
Posted at 10:35 PM by Howard Bashman

"Torture of detainees? No. 'Coercion'? It depends. New detainee law gives the White House and the CIA most -- but not all -- of the authority they wanted for interrogations." Warren Richey will have this article Thursday in The Christian Science Monitor.
Posted at 07:44 PM by Howard Bashman

"Attorney General Alberto Gonzales discussed the Military Commissions Act of 2006 on 'Ask the White House' Wednesday": You can access the written transcript at this link.
Posted at 07:34 PM by Howard Bashman

"Not Your Usual Brown Bag Affair": The U.S. Court of Appeals for the Ninth Circuit has issued a news release that begins, "Associate Justice Anthony M. Kennedy of the Supreme Court of the United States visited the James R. Browning U.S. Courthouse in San Francisco Monday for a 'brown bag' discussion with judges, law clerks and clerk's staff of the U.S. Court of Appeals for the Ninth Circuit."
Posted at 07:10 PM by Howard Bashman

Now that's a convincing dissenting opinion: Today the U.S. Court of Appeals for the Fifth Circuit posted online an opinion by a unanimous three-judge panel bearing yesterday's date that begins:
The panel majority has sua sponte reconsidered arguments made by the dissenting opinion and has concluded that they are well taken. As a result, we now withdraw our original panel majority opinion and the dissenting opinion, replacing them with the following unanimous opinion, which affirms the Order of the district court denying suppression as well as its judgment of conviction by guilty plea and the sentence imposed.
The original three-judge panel opinion, in which the majority voted to reverse notwithstanding a subtly persuasive dissenting opinion, can be accessed here.
Posted at 06:54 PM by Howard Bashman

"Former Supreme Court justice O'Connor hears appeals court cases in S.F." Howard Mintz of The San Jose Mercury News provides this update.
Posted at 06:03 PM by Howard Bashman

"World Trade Center Insurers Get Mixed Appeal Ruling": Bloomberg News provides a report that begins, "Larry Silverstein, leaseholder of the World Trade Center site, should be paid up to twice the limit of some of his insurance policies covering the property destroyed in the Sept. 11, 2001, terror attacks and only once the maximum on other contracts, a U.S. appeals court ruled."

And The Associated Press reports that "Appeals court upholds verdicts in mammoth WTC insurance cases."

Senior Circuit Judge John M. Walker, Jr. issued today's ruling of the U.S. Court of Appeals for the Second Circuit on behalf of a unanimous three-judge panel.
Posted at 05:58 PM by Howard Bashman

"Motorist who struck police officer is a senior federal judge": The New Haven Register provides a news update that begins, "The motorist who struck and critically injured a city police officer working a traffic detail Tuesday is a senior federal judge in New Haven, sources said. John M. Walker, Jr., who is in his mid-60s, had been the chief judge for the Second Circuit U.S. Court of Appeals for six years until Sept. 30, when he assumed senior status with the federal judiciary."
Posted at 05:40 PM by Howard Bashman

Programming note: I have a meeting out of the office this afternoon with co-counsel in a new appeal that I'm working on. Additional posts will appear later today.

Until then, we can await with anticipation the Ninth Circuit's posting online of oral argument audio from today's cases in which retired Justice Sandra Day O'Connor is sitting by designation in San Francisco. I'm sure she's destined to be the crucial swing vote on the three-judge panel in at least some of those cases. When the audio finally does appear online, you'll be able to access it via this link.
Posted at 12:00 PM by Howard Bashman

Seals and cross: The Los Angeles Daily News today contains an article headlined "L.A. County seal has its day in court; Suit challenges removal of religious icon" that begins, "Cast into the heart of a nationwide controversy over the constitutionality of religious symbols in public areas, three members of the 9th Circuit Court of Appeals heard oral arguments Tuesday regarding a lawsuit challenging a decision to remove the cross from Los Angeles County's official seal."

Earlier this week, the newspaper published an article headlined "Fight over the cross revived; Backers of old seal say issue could reach high court."

You can access online the audio of yesterday's oral argument before a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit via this link (Windows Media format).

In other cross-related news, The San Diego Union-Tribune today contains an article headlined "Appeals court revisits Mt. Soledad land transfer" that begins, "A San Diego appeals court panel appeared deeply troubled yesterday over a lower-court ruling that threw out a voter-approved 2005 initiative transferring the land under the Mount Soledad cross to the federal government."

Thanks to the "Religion Clause" blog for the pointer.
Posted at 11:54 AM by Howard Bashman

"This appeal asks whether members of the Arkansas State Police violated a criminal investigator's constitutional right to privacy by investigating an allegation that the investigator had sexual relations with a crime victim during the course of the underlying criminal investigation." A three-judge panel of the U.S. Court of Appeals for the Eighth Circuit, with one judge concurring only in the result, answers "no" in an opinion issued today.
Posted at 11:45 AM by Howard Bashman

"No Encroachments on the First Amendment: The ACLU discusses civil rights history, intelligent design and abortion." Ronald Bailey has this essay online today at Reason.
Posted at 10:55 AM by Howard Bashman

"South Dakota to Vote on Ending Judicial Protections": This audio segment (RealPlayer required) featuring Nina Totenberg appeared on today's broadcast of NPR's "Morning Edition."
Posted at 10:54 AM by Howard Bashman

Sixth Circuit disqualifies appellate counsel after an attorney who once represented a plaintiff-appellee in this very case went to work for the law firm representing the defendants-appellants: Today's order and opinion concludes:
As discussed above, MRPC 1.9(a) prohibits Egan from representing Alticor or the other defendants-appellants against his former client National Union in this same matter. Therefore, MRPC 1.10(a) states without qualification that no lawyer in Egan's new firm may represent Alticor or the other defendants-appellants against National Union in this matter. Under these circumstances, Wilson Young cannot avoid imputed disqualification by "screening" Egan from this matter, no matter how diligently.

Therefore, we GRANT plaintiffs-appellees' motion to disqualify the law firm of Wilson Young PLC from representing defendants-appellants in this matter. Alticor and the other defendants-appellants must secure new counsel if they wish to proceed with this appeal. The court orders that oral argument scheduled for November 1, 2006, is cancelled. New counsel shall be retained within 28 days. New counsel shall file an appearance with the Clerk of this court immediately upon being retained.

You can access today's ruling at this link.
Posted at 10:40 AM by Howard Bashman

"Taking Oral Argument to School": Dave Hoffman has this post at "Concurring Opinions." I very much enjoyed meeting Dave for lunch yesterday before my afternoon oral argument, notwithstanding that our lunch together didn't merit mention on "Above the Law" (cf.).

Yesterday was the first time that I presented a non-moot court appellate oral argument outside of an actual appellate courtroom. From my perspective as an advocate, I did not notice any difference in how I presented my argument or the type of questions that the judges asked. I do not think that holding the session at a law school caused the judges to be more prepared; indeed, a couple of questions from the bench caused me to conclude that at least two judges on the panel were less familiar than I had expected with the procedural background of the case that I was arguing. Opposing counsel did seem to be trying more to put on a show than offer an actual appellate argument, but I don't think that opposing counsel would have proceeded differently had the matter been argued in a traditional appellate courtroom. For the record, I was quite happy with how my oral argument went, but since I know two of the judges on this panel fairly well, the polite reception that I received did not come as any surprise.

The one lesson that I would hope that any law students in attendance at yesterday's Superior Court of Pennsylvania oral arguments at the Duane Morris LLP Moot Courtroom of the Temple University Beasley School of Law is the extent to which appellate courts are forced to ration justice due to the crushing burden of an overwhelming caseload. Yesterday's three-judge panel heard oral arguments in nearly thirty cases, and that very same panel will be hearing oral arguments in nearly sixty more cases today and tomorrow. So, by the end of this week, those three judges will have nearly ninety new cases to decide by means of written opinions. Anyone who thinks that all ninety of those cases will receive the sort of contemplative, individualized consideration by three appellate judges that we would hope for in a perfect world is deluding himself. I discussed this issue in more detail in my recent essay headlined "Quality and Quantity on Appeal."
Posted at 09:00 AM by Howard Bashman

"Corporate Leniency": The New York Sun today contains an editorial that begins, "Later this month, the Supreme Court will decide whether to hear arguments in Stolt-Nielsen, S.A., et al., v. United States, and the court's action could have a major impact on the Department of Justice's increasingly aggressive pursuit of corporate crime."
Posted at 08:40 AM by Howard Bashman

"Appeal Court Backs Parole for Killer, 82; Schwarzenegger abused his authority when he opposed freeing the seriously ill prisoner, judges say; He could object to the ruling": The Los Angeles Times contains this article today.

And today in The San Francisco Chronicle, Bob Egelko reports that "Court says governor wrong to deny parole to killer, 82."

You can access yesterday's ruling of California's Court of Appeal for the Second Appellate District at this link.
Posted at 08:35 AM by Howard Bashman

"Policy fight roils death row cases; Lawyers say they should have been told about a document that details how the state executes": This article appears today in The St. Petersburg Times.

And The Gainesville Sun reports today that "Court rejects challenge to death penalty."
Posted at 08:29 AM by Howard Bashman

"Case Against Justice Resuming": Today in The Hartford Courant, Lynne Tuohy has an article that begins, "Former Chief Justice William J. Sullivan is scheduled to resume his testimony today before the Judicial Review Council, and is expected to discuss the incident that led to his being charged with five ethical violations. The hearing into Sullivan's conduct has been suspended for six weeks to allow him to recover from emergency heart surgery, but controversy over his case continued to simmer behind closed doors."
Posted at 08:25 AM by Howard Bashman

"Yes on All Judges: All of the state Supreme Court and appellate jurists on the ballot deserve to keep their jobs." The Los Angeles Times contains this editorial today.
Posted at 08:20 AM by Howard Bashman

"Bush Signs New Rules to Prosecute Terror Suspects": This article appears today in The New York Times.

The Los Angeles Times reports today that "Bush Signs Tough Rules on Detainees; As the controversial law on terror trials and interrogations takes effect, Justice Dept. asks that prisoners' hearing requests be dismissed." And David G. Savage has an article headlined "Law's Reach Extends to Jails in U.S.; The curbing of habeas corpus protections for 'enemy combatants' can now occur domestically; Many say the measure won't survive court tests."

The Washington Post reports that "Bush Signs Terrorism Measure; New Law Governs Interrogation, Prosecution of Detainees." And at, Andrew Cohen has an essay entitled "Terror and Cause and Effect."

The Boston Globe reports that "Battles brewing on torture, detainees; Bush signs, hails rules; foes vow legal challenge." In addition, Law Professors Gabriella Blum and Martha Minow have an op-ed entitled "The Israeli model for detainee rights."

And The Washington Times reports that "Bush signs rules for terror war."
Posted at 08:14 AM by Howard Bashman

"Hate Is Always in Style At a Gathering of the Klan": Columnist Courtland Milloy has this "Revisiting Washington" essay today in The Washington Post.
Posted at 08:05 AM by Howard Bashman

"Many Ground Zero Workers Gain Chance at Lawsuits": The New York Times today contains an article that begins, "A federal judge has rejected the city's claim that it is protected by law from being sued over the way it handled rescue and recovery operations at ground zero. The ruling opens the way for lawsuits by thousands of workers who say they were made sick by exposure to toxic substances during the 10-month cleanup."

And The New York Sun reports today that "WTC Workers Can Press Forward With Lawsuits, Federal Judge Rules."

You can access yesterday's ruling of the U.S. District Court for the Southern District of New York at this link.
Posted at 07:54 AM by Howard Bashman

"Appeals Court Upholds Terrorist Label for a Jewish Group": Neil A. Lewis has this article today in The New York Times.

And today in The New York Sun, Josh Gerstein reports that "Court Upholds Jewish Group's Terrorist Designation."

My earlier coverage appears at this link.
Posted at 07:50 AM by Howard Bashman

"Judge Throws Out Kenneth Lay's Conviction": This article appears today in The New York Times.

The Los Angeles Times reports today that "Verdict Against Lay Is Erased; A judge cites the fact that the late Enron founder didn't have a chance to appeal his conviction."

The Houston Chronicle reports that "Judge voids convictions against Lay; Ruling prevents U.S. from taking late Enron chief's assets, but civil suit still an option."

And USA Today reports that "Trial judge vacates conviction of late Enron founder Lay; Justice Department still plans to pursue forfeiture."
Posted at 07:45 AM by Howard Bashman

"Amid debate over rights, number of gay judges rising; Most report sexual identity not an issue, but conservative groups wary": Joan Biskupic has this article today in USA Today.
Posted at 07:42 AM by Howard Bashman

"Study Shows Biased Policies at University of Michigan": The New York Sun today contains an article that begins, "Discrimination against white and Asian applicants to the University of Michigan's undergraduate, law, and medical schools is more severe than ever, a study released yesterday by the Center for Equal Opportunity says."

And The Detroit Free Press reports today that "Civil rights proposal has voters conflicted; Survey shows many remain split on issue," while yesterday's newspaper contained an article headlined "Affirmative action: Battle heats up as election nears; Sides hold events to sway voters."
Posted at 07:34 AM by Howard Bashman

"A Humble Start on the Path to Stardom: Renowned legal scholar uses art to illustrate constitutional law." The Harvard Crimson today contains an article that begins, "Laurence H. Tribe ’62 once wrote that constitutional law’s 'accumulated lines of thought and argument are indeed tantamount--however familiar the metaphor--to the threads of a complex tapestry.' The Harvard Law professor is now taking constitution-as-art one step further with a book that uses his own artwork to explain the nation’s founding charter."
Posted at 07:32 AM by Howard Bashman

"Gonzales v. Carhart: The Supreme Court Once Again Considers 'Partial-Birth Abortion.'" Sherry F. Colb has this essay today at FindLaw.
Posted at 06:48 AM by Howard Bashman

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