How Appealing

Tuesday, October 31, 2006

"Justices Weigh Limits on Punitive Damages": Linda Greenhouse will have this article Wednesday in The New York Times.
Posted at 11:52 PM by Howard Bashman

"Court: Woman Can't Say No After Start Of Sex." The Associated Press provides this report on a ruling that Maryland's intermediate appellate court, the Court of Special Appeals, issued yesterday.
Posted at 11:50 PM by Howard Bashman

In Wednesday's issue of The New York Times: Tomorrow's newspaper will contain articles headlined "Battle Over Abortion Focuses on South Dakota Vote" and "China Acts to Reduce High Rate of Executions."
Posted at 11:48 PM by Howard Bashman

"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 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 09:55 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 08:55 PM by Howard Bashman

"[I]t seems a basic principle of fairness and good judgment that no party should lose a case solely because his lawyer listed the name and address of a law firm above, rather than below, the lawyer's signature." So writes Circuit Judge Jerry E. Smith in an opinion issued today on behalf of a unanimous three-judge panel of the U.S. Court of Appeals for the Fifth Circuit.
Posted at 08:25 PM by Howard Bashman

Yu Kikumura is on the verge of being released from the federal Supermax prison in Florence, Colorado: A 262-month sentence may have sounded like a long time in prison when it was imposed in 1988, but according to this opinion that the U.S. Court of Appeals for the Tenth Circuit issued today, Kikumura's release is scheduled to occur on April 18, 2007.

You can access this blog's recent earlier Yu Kikumura coverage at this link.
Posted at 08:20 PM by Howard Bashman

"Up in Smoke: The Supreme Court makes one of the year's biggest cases disappear." Dahlia Lithwick has this Supreme Court dispatch online at Slate.
Posted at 07:15 PM by Howard Bashman

"High Court Reviews High-Dollar Cigarette Judgment": This audio segment (RealPlayer required) featuring Nina Totenberg appeared on this evening's broadcast of NPR's "All Things Considered."
Posted at 06:18 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 05:50 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 05:40 PM by Howard Bashman

"Court Considers Florida Death Row Case": The Associated Press provides this report. You can access the transcript of today's U.S. Supreme Court oral argument in Lawrence v. Florida at this link.
Posted at 05:05 PM by Howard Bashman

"U.S. Supreme Court hears argument in Oregon Case": The Oregonian provides this news update.
Posted at 05:00 PM by Howard Bashman

"High Court Reviews Big Award in Tobacco Case": This audio segment (RealPlayer required) featuring Dahlia Lithwick appeared on today's broadcast of NPR's "Day to Day."
Posted at 04:58 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":'s Tony Mauro provides this report.
Posted at 04:50 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 04:45 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 provides this report.
Posted at 03:37 PM by Howard Bashman

"Not cool" is not a legal argument, Wisconsin appellate court holds: See footnote four of this not-for-publication ruling that the Wisconsin Court of Appeals issued today. Yet to be decided are whether "Cool!" and "Cool [appropriate dramatic pause] NOT!" qualify as legal arguments.
Posted at 03:35 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 03:05 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 02:34 PM by Howard Bashman

Access online the transcript from today's U.S. Supreme Court oral argument in Philip Morris USA v. Williams, the tobacco liability punitive damages case: The transcript is available at this link.
Posted at 02:27 PM by Howard Bashman

"Philip Morris challenges smoker award in top court": James Vicini of Reuters provides this report.
Posted at 02:24 PM by Howard Bashman

"Court Hears Cigarette Co. Penalty Case": The Associated Press provides this updated report.
Posted at 12:10 PM by Howard Bashman

"Analysis: Tobacco case going back?" Lyle Denniston has this post at "SCOTUSblog."
Posted at 12:00 PM by Howard Bashman

"O'Connor speaks to women in Salt Lake City": This article appears today in The Deseret Morning News.

And The Salt Lake Tribune reports today that "Retired justice shares memories in SLC."
Posted at 11:40 AM 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

"Supreme Court Considers Punitive Damage Limits": This audio segment (RealPlayer required) featuring Nina Totenberg appeared on today's broadcast of NPR's "Morning Edition."
Posted at 09:20 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 08:57 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

The complete 66-page report from the Center for Investigative Reporting can be accessed at this link.
Posted at 08:55 AM by Howard Bashman

"Ex-air marshal fired over leak sues TSA": This article appears today in The Los Angeles Times.
Posted at 08:44 AM by Howard Bashman

"Judge Is Asked To Block Libby Defense From Discussing Lack of Stronger Charges": Josh Gerstein has this article today in The New York Sun.

And The Associated Press reports that "Prosecutor Argues Issues for Leak Trial."
Posted at 08:42 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 08:40 AM by Howard Bashman

"Free speech test for judicial reform; Nevada fundraising ban constitutional, advocate says": The Los Angeles Times today contains an article that begins, "Banning judges from personally soliciting or accepting campaign contributions would not represent an improper restriction on their constitutional rights and would help restore the integrity of Nevada's troubled judiciary, an advocate for reform has argued. The Nevada Supreme Court is expected to decide in coming months whether to implement the ban. The measure would put Nevada in line with much of the rest of the nation, and advocates believe it would mark a significant step in judicial reform."
Posted at 08:35 AM by Howard Bashman

"Civil unions on track for legalization; Trenton sees consensus opposing gay marriage": This article appears today in The Newark (N.J.) Star-Ledger.
Posted at 08:33 AM by Howard Bashman

"Ban on abortions trails in new poll": The Washington Times today contains an article that begins, "A South Dakota ballot measure to ban almost all abortions in the state is likely to fail by a wide margin, a new poll says."

And The Argus Leader of Sioux Falls, South Dakota reports today that "Tribes might sway abortion vote; Traditional views would tend to support ban."
Posted at 08:30 AM by Howard Bashman

"Campaign to End Race Preferences Splits Michigan": This article appears today in The New York Times.
Posted at 08:20 AM by Howard Bashman

"Appeals Court Blocks South Dakota Law on Doctors' Statement to Seekers of Abortion": Adam Liptak has this article today in The New York Times.

The Minneapolis Star Tribune reports today that "Changes won last year in South Dakota abortion law put on hold."

And The Associated Press reports that "Abortion law still not to be enforced; Court upholds ban on enforcement of warning statute in South Dakota."

My earlier coverage appears at this link.
Posted at 08:15 AM by Howard Bashman

"China Changes Death Penalty Law": The Associated Press provides this report.

And Xinhua reports that "China changes law to limit death sentence."
Posted at 08:11 AM by Howard Bashman

"Assessing the Damages": The New York Times today contains an editorial that begins, "The Supreme Court has been struggling to address the thorny question of when, if ever, punitive damages become so large that they violate the Constitution."
Posted at 08:05 AM by Howard Bashman

"Attention, Voters: Have Your ID Ready; In Many States, New Rules On Identification at the Polls Spark Confusion, Controversy." The Wall Street Journal contains this article (free access) today.
Posted at 08:00 AM by Howard Bashman

"Evidence in Williams case draws high court's attention; Prosecutor calls post-shooting acts fair game for retrial": This article appears today in The Newark (N.J.) Star-Ledger.

And The New York Times today contains an article headlined "Debate Over What Evidence to Allow in Ex-Net's Retrial."
Posted at 07:54 AM by Howard Bashman

"Tobacco Comes To The Supreme Court: Philip Morris seeks to torpedo punitive damage awards in lung cancer case." Jessica Holzer provides this report at
Posted at 07:50 AM by Howard Bashman

On this date in 2005: One year ago today, President Bush announced that he was nominating Third Circuit Judge Samuel A. Alito, Jr. to serve on the Supreme Court of the United States. You can access a transcript and video of the announcement via this link. And my coverage from one year ago today can be accessed at this link.
Posted at 07:40 AM by Howard Bashman

"The New Jersey Supreme Court's Same-Sex Marriage Decision: Couples Get the Benefits of Marriage, but Will They Also Get the Name?" Joanna Grossman and Linda McClain have this essay online at FindLaw.
Posted at 06:47 AM by Howard Bashman

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