How Appealing



Tuesday, October 31, 2006

“Court Blocks Ruling on Tobacco Industry”: The Associated Press provides a report that begins, “A federal appeals court blocked a landmark judgment against the tobacco industry Tuesday, allowing the companies to continue selling ‘light’ and ‘low tar’ cigarettes until their appeals can be reviewed.”

Posted at 10:10 PM by Howard Bashman



“Editor and justice take the stand; Witnesses defend judge, newspaper”: The Chicago Tribune today contains an article that begins, “An Illinois Supreme Court justice and a managing editor took the stand Monday in a rare defamation case pitting the bench’s chief justice against a Kane County newspaper.”

In earlier coverage, on Saturday the newspaper reported that “Judge unbiased, court told; Gorecki’s testimony downplayed by paper.” And on Friday, the newspaper reported that “Defamation suit testimony begins; State’s chief justice clashes with newspaper.”

In other coverage, The Daily Herald of Arlington Heights, Illinois reports today that “Newspaper’s practices criticized during libel trial; Attorneys for chief justice say paper did not ensure columnist’s information was true.”

The Kane County Chronicle reports today that “Journalism ethics considered during trial.”

And The Associated Press reports that “Ill. Supreme Court Justices Testify.”

Posted at 10:07 PM by Howard Bashman



Available online from law.com: Tony Mauro reports that “Justices May Return Punitive Damages Case to Oregon High Court.”

In other news, Shannon P. Duffy reports that “3rd Circuit Revives Case Against Asbestos Class Action Lawyers.” You can access at this link today’s ruling by a divided three-judge panel of the U.S. Court of Appeals for the Third Circuit.

And Philip L. Gordon and Katherine Cooper Franklin have an essay entitled “Can Law Firms Keep the Blogosphere at Bay?

Posted at 9:55 PM by Howard Bashman



“Philip Morris Asks Court for Relief; Cigarette Maker Challenges $79.5 Million Damage Award”: Charles Lane will have this article Wednesday in The Washington Post.

Posted at 8:55 PM by Howard Bashman



“Sixth Circuit Issues Three Opinions on Ohio Voter ID Appeal”: Law Professor Rick Hasen has this post linking to the opinions at his “Election Law” blog.

Posted at 5:50 PM by Howard Bashman



“Is a trial unfair if accused can’t confront accuser? The Supreme Court looks at the conviction in a 1988 child-abuse trial. One possible outcome is a flood of appeals.” Warren Richey will have this article Wednesday in The Christian Science Monitor.

And at “SCOTUSblog,” Lyle Denniston has a post titled “Major test on Crawford, habeas.”

Posted at 5:40 PM by Howard Bashman



“Punitive Damages Case Could Return to Oregon Supreme Court; Justices more troubled over technical matters than debating the constitutionality of high punitive damages”: law.com’s Tony Mauro provides this report.

Posted at 4:50 PM by Howard Bashman



Punitive damages — punishing the defendant for its conduct toward the plaintiff or punishing the defendant for conduct that injured not only the plaintiff but also many others? One of the interesting issues lurking in Philip Morris USA v. Williams — the tobacco liability punitive damages case argued today (access the oral argument transcript here) in the U.S. Supreme Court — is the extent to which a jury may properly consider the harm the defendant caused to others in deciding how great of a punitive damages award to impose.

In BMW v. Gore, the U.S. Supreme Court held that Alabama could not punish the automaker for having engaged in a fraudulent car repainting scheme throughout the entire United States because in some States BMW’s actions did not constitute fraud. In the Williams case argued today, the Oregon jury was allowed to consider how Philip Morris’s conduct harmed other Oregon smokers in deciding how much punitive damages to award to the plaintiff. A key question before the U.S. Supreme Court in today’s case is the extent to which, if any, a jury may rely on the fact that the defendant’s conduct harmed other Oregonians in addition to the plaintiff in deciding the amount of punitive damages to award.

From my read of today’s oral argument transcript, it appears that Philip Morris is arguing that if its course of conduct injured 100 different Oregonians and if the maximum amount of punitive damages that Philip Morris could be required to pay as a result of that course of conduct was $100 million, then the most in punitive damages that any single plaintiff could receive was $1 million. Not surprisingly, that argument in practice would greatly benefit Philip Morris, because some of the 100 plaintiffs may never file suit, or may file suit too late and thus lose due to expiration of the statute of limitations, or may settle instead of going to trial and thus fail to receive the greatest possible value on their claims. Thus, under the approach that Philip Morris advocates, the likelihood that the company will ever be required to pay the full amount of punitive damages that due process would allow is remote at best.

On the other hand, assume a system in which the first plaintiff to get to court receives a judgment awarding compensatory damages plus all $100 million in punitive damages that due process would allow. Assume further that the remaining 99 plaintiffs would not be entitled to recover any punitive damages on their claim, given that the punitive award in favor of the first plaintiff was the most that due process would allow as punishment for the conduct of the defendant. Under this scenario, what legitimate objection does Philip Morris have to being punished to the greatest extent that due process would allow? In my view, Philip Morris would have no valid due process objection whatsoever.

Posted at 4:45 PM by Howard Bashman



“$79M tobacco award stumps Supreme Court; Justices split on issue of imposing large fines in product liability cases”: Bill Mears of CNN.com provides this report.

Posted at 3:37 PM by Howard Bashman



What is the holding of the U.S. Supreme Court‘s recent ruling in Rapanos v. United States? Today the U.S. Court of Appeals for the First Circuit becomes the most recent federal appellate court to try to decipher the holding of Rapanos, and what results is a majority opinion and an opinion dissenting in part. You can access today’s First Circuit ruling at this link. Today’s majority opinion notes that “we do not share the reservations of the D.C. Circuit about combining a dissent with a concurrence to find the ground of decision embraced by a majority of the Justices.”

Today’s ruling comes on panel rehearing. My coverage of the original ruling by this same three-judge panel, a pre-Rapanos decision in which each of the three judges issued a separate opinion, can be accessed here.

Posted at 3:05 PM by Howard Bashman



“Did a Supreme Court judge throw away the briefs?” The Toronto Globe and Mail today contains an article that begins, “Some Supreme Court judges seek relief from work stress in the comfort of their families. Others love nothing more than to curl up with a good book. And could it be, for at least one of them, a nude romp on the high seas was just the ticket? The anonymous judge’s alleged unconventional vacation choice — a nude cruise — came to light in a San Francisco Chronicle travel article in the spring.”

The travel article, which appeared in the April 2, 2006 issue of The San Francisco Chronicle, appeared under the headline “Finally, the naked truth about nude cruises” (using that link, the article’s reference to “Canadian Supreme Court justice” appears in bold type).

If Jon Stewart’s “America (The Book)” had instead depicted naked Canadian Supreme Court Justices, he would have been to some extent prescient.

Thanks to “Althouse” for the pointer.

Posted at 2:34 PM by Howard Bashman



“Justices urged to review Salt Lake case”: The Deseret Morning News today contains an article that begins, “Four former U.S. attorneys general and 141 other top former justice officials from across the United States are urging the U.S. Supreme Court to review the case of a Salt Lake man sentenced to 55 years for selling marijuana. The case of Weldon Angelos has become a rallying point by legal experts who say the high court is overdue in reviewing the constitutionality of minimum mandatory sentences in the federal system.”

If anyone sends me an electronic copy of the amicus brief that is the subject of this newspaper article, I’ll be sure to post the brief online.

Posted at 11:35 AM by Howard Bashman



“Padilla: Dismiss charges because I was tortured; The suspect in a terror case said charges against him should be dropped because, he said, he was tortured in U.S. custody while being detained as an ‘enemy combatant.'” This article appears today in The Miami Herald.

Posted at 11:30 AM by Howard Bashman



“The Supreme Court’s Gatekeepers: The Role of Law Clerks in the Certiorari Process.” Law Professor David R. Stras has this essay (abstract with link for download) online at SSRN. According to the essay’s abstract, the essay “reports the results from the first empirical examination of every pool memo from four Terms of the Supreme Court: October Terms 1984, 1985, 1991 and 1992.”

Posted at 8:57 AM by Howard Bashman



“Money trails lead to Bush judges: A four-month investigation reveals that dozens of federal judges gave contributions to President Bush and top Republicans who helped place them on the bench.” Will Evans has this article today at Salon.com.

The complete 66-page report from the Center for Investigative Reporting can be accessed at this link.

Posted at 8:55 AM by Howard Bashman



“Abortion in Latin America illegal, risky–but not rare; Brazil, other nations fiercely debate laws”: This article appears today in The Chicago Tribune.

Posted at 8:40 AM by Howard Bashman