How Appealing

Wednesday, November 22, 2006

Circuit Judge Richard A. Posner and Law Professor Brian Leiter debate pragmatic adjudication: "The Faculty Blog" of the University of Chicago Law School provides a post titled "What Do and What Should Judges Do?" You can download an mp3 podcast of the debate between Judge Posner and Professor Leiter via this link.

At 15 minutes and 40 seconds into the mp3 audio recording, Professor Leiter finally allows Judge Posner to speak.
Posted at 05:10 PM by Howard Bashman

"Courts - Linking to 7th Circuit opinions can be tricky." Marcia Oddi of "The Indiana Law Blog" -- a blog that frequently links to Seventh Circuit opinions -- provides this post following-up on my related post from yesterday.
Posted at 04:25 PM by Howard Bashman

"Scalia the Civil Libertarian? As it conducts the war on terror, the Bush administration may find the conservative justice a bigger obstacle than the Democratic Party." Scott Turow will have this Idea Lab essay (TimesSelect temporary pass-through link) in this upcoming Sunday's issue of The New York Times Magazine.
Posted at 03:22 PM by Howard Bashman

"Same-sex couple seeks divorce in R.I.; The case - involving a Providence couple who got married in Fall River in 2004 - could set a legal precedent in Rhode Island": This article appears today in The Providence Journal, which has also posted online a PDF image of the couple's Massachusetts marriage certificate.

And The Associated Press reports that "Gay R.I. Couple Files for Divorce."
Posted at 03:15 PM by Howard Bashman

"Kentucky Supreme Court says lethal injection legal": The Courier-Journal of Louisville provides a news update that begins, "The Kentucky Supreme Court on Wednesday rejected two Death Row inmates' argument that execution by lethal injection violates the constitutional protection against cruel and unusual punishment."

The Lexington Herald-Leader provides a news update headlined "State's high court upholds lethal injection for executions."

And The Associated Press reports that "Ky. Court Upholds Lethal Injection."

You can access today's ruling of the Supreme Court of Kentucky at this link.
Posted at 03:12 PM by Howard Bashman

Divided three-judge Ninth Circuit panel reinstates challenge to the USDA's decision not to adopt a Draft Policy providing guidance to zoos and research facilities on how to ensure the psychological well-being of nonhuman primates in order to comply with the federal Animal Welfare Act: Here's a ruling that is sure to merit mention at the "Animal Law Blog."

Today a divided three-judge panel of the U.S. Court of Appeals for the Ninth Circuit issued an opinion that begins:

Plaintiffs, who include the Animal Legal Defense Fund ("ALDF"), the Animal Welfare Institute ("AWI"), and three individuals, challenge the United States Department of Agriculture's ("USDA") decision not to adopt a Draft Policy that would have provided guidance to zoos, research facilities, and other regulated entities in how to ensure the psychological well-being of nonhuman primates in order to comply with the federal Animal Welfare Act ("AWA"). Plaintiffs challenge the decision not to adopt the Draft Policy under the Administrative Procedure Act ("APA") as arbitrary and capricious. The district court did not reach the merits of plaintiffs' suit because it determined that the USDA's decision did not constitute reviewable final agency action. We disagree. We hold that at least one of the plaintiffs has standing under Article III of the Constitution, and we conclude that the district court has authority under the APA to review the USDA's decision not to adopt the Draft Policy.
Circuit Judge William A. Fletcher wrote the majority opinion, in which Senior U.S. District Judge H. Russel Holland of the District of Alaska joined.

Circuit Judge Alex Kozinski issued a dissenting opinion. His dissent concludes:

The majority expands the law of standing beyond recognition. It unmoors administrative law from sound principles of judicial review, and insinuates the federal courts into sensitive policy judgments that are the exclusive province of the Executive Branch. It ignores the teachings of the Supreme Court and misapplies the precedents it relies on. It will cause no end of mischief. Count me out.
At first glance, this case appears to be a strong candidate for rehearing en banc.
Posted at 02:40 PM by Howard Bashman

"I do not believe that every error by a panel is enbancable. A panel is entitled to err without the full court descending upon it." So writes Circuit Judge Alan D. Lourie, in an opinion issued today concurring in the U.S. Court of Appeals for the Federal Circuit's decision to deny rehearing en banc in Amgen Inc. v. Hoechst Marion Roussel, Inc. Six separate opinions accompany the denial of rehearing en banc, including a dissent from that court's newest judge, Kimberly Ann Moore.
Posted at 12:00 PM by Howard Bashman

In praise of those few U.S. Courts of Appeals that routinely treat as published opinions their orders granting rehearing en banc: Following-up on my lengthy post from yesterday that criticized the manner in which the U.S. Court of Appeals for the Seventh Circuit provides online access to its published opinions, this post offers a suggestion that would improve the quality of information freely available online from nearly all of the federal appellate courts.

At present, it appears that only the U.S. Courts of Appeals for the Fifth and Ninth Circuits routinely post online as published opinions their orders granting rehearing en banc. Two recent examples can be accessed here and here.

The Ninth Circuit is especially deserving of praise, as it offers on its web site a compilation of the questions presented in the cases in which rehearings en banc have been granted along with access to the briefs filed in seeking en banc rehearing.

The Eleventh Circuit also deserves honorable mention, because its web site offers a listing of en banc issues. And the Fourth Circuit also deserves some praise because after rehearing is granted, that court notes the grant of rehearing on the face of the original decision in which rehearing had been granted (see here for an example).

Unfortunately, the vast majority of federal appellate courts fails to post online as published opinions those courts' orders granting rehearing en banc in a case. Instead, what one more commonly sees are orders denying rehearing en banc, accompanied by for-publication dissenting statements, which are posted online as published opinions.

Yesterday in the D.C. Circuit's Abigail Alliance case, the absurdity of the approach that most of the federal appellate courts follow was made apparent for all to see. The D.C. Circuit posted online as a published opinion the panel's explanation of its reasons for denying panel rehearing. But the D.C. Circuit did not post online as a published opinion the court's order granting rehearing en banc in the case. Indeed, it was not until this morning (see my post immediately below) that the D.C. Circuit's order granting rehearing en banc became available over that court's password-required PACER system. And, in the post immediately below, I have provided public access to yesterday's order granting rehearing en banc.

My original post about yesterday's decision denying panel rehearing noted the absence of any explanation of the disposition of the federal government's alternate request for rehearing en banc. Another law blogger depicted yesterday's D.C. Circuit developments as a loss for the federal government, which was correct based on available information but absolutely incorrect once the previously unknown grant of the federal government's petition for rehearing en banc became public.

In sum, all federal appellate courts should begin to follow the approach of the Fifth and Ninth Circuits in posting online as published opinions those courts' orders granting rehearing en banc. A federal appellate court's decision to grant rehearing en banc in a case is a significant development that should not remain hidden from the public inside a password-required PACER docket.

Update: I'm pleased to report that the Eleventh Circuit deserves the same amount of praise as the Fifth and Ninth Circuits for routinely posting online its orders granting rehearing en banc in the same manner that the Eleventh Circuit posts online its published opinions.
Posted at 10:55 AM by Howard Bashman

Access online the D.C. Circuit's order granting rehearing en banc in the substantive due process access to experimental potentially life-saving drugs case: I obtained a copy of the D.C. Circuit's order entered yesterday granting rehearing en banc in the case from that court's PACER system, and I have uploaded a copy of the order to this link.
Posted at 10:25 AM by Howard Bashman

Sixth Circuit reinstates First Amendment retaliation claim asserted by former elected school superintendent for Morgan County, Tennessee, who lost his job after a newspaper reported that he would be speaking at a convention sponsored by a church with a predominantly homosexual congregation: You can access today's ruling of the U.S. Court of Appeals for the Sixth Circuit at this link.
Posted at 10:18 AM by Howard Bashman

"Pataki Rebuked on Confining Sex Offenders": This article appears today in The New York Times.

The Times Union of Albany, New York today contains an article headlined "Court: Pataki violated rights of sex offenders; Governor promises to call Legislature back to change law after hearings ordered."

And Joseph Goldstein of The New York Sun reports that "Governor To Push For New Law On Sex Offenders."

You can access yesterday's ruling of the Court of Appeals of New York, that State's highest court, at this link.
Posted at 08:35 AM by Howard Bashman

"Journalist denied holiday furlough from prison; Reprieve might ease pressure on activist to give in, judge says": Today in The San Francisco Chronicle, Bob Egelko has an article that begins, "A federal judge has denied a Thanksgiving furlough to Josh Wolf, the activist and freelance journalist who has been in prison more than three months for refusing to surrender a videotape of a San Francisco political protest."
Posted at 08:27 AM by Howard Bashman

"Court says Israel must register same-sex marriages; The ruling, which affects those wed abroad, reignites a debate over gay rights": This article appears today in The Los Angeles Times.

And The Jerusalem Post reports that "Gay marriages can now be registered."
Posted at 08:20 AM by Howard Bashman

"Whites-Only Rule At B.U. Is Booed; In protest against affirmative action, GOP club offers aid for Caucasians": The Harvard Crimson today contains an article that begins, "Criticizing scholarships reserved for minority students, the Boston University College Republicans announced Monday that the group will be awarding a $250 scholarship that requires applicants to be at least 25 percent Caucasian."

And The Daily Free Press of Boston University reported yesterday that "BU group offers white scholarship; Award meant to protest race-based scholarships."
Posted at 08:10 AM by Howard Bashman

"Gay Couples Demand Marriage; Take Their Appeal To State High Court": Today in The Hartford Courant, Lynne Tuohy has an article that begins, "Lawyers for eight same-sex couples seeking the right to marry will file their brief in the state Supreme Court today, setting the stage for an epochal legal battle on whether Connecticut permits gay marriage."
Posted at 08:07 AM by Howard Bashman

"Many fume over hot ad in lawyers newspaper": The Boston Globe today contains this article, which features a large image of the ad in question.
Posted at 08:05 AM by Howard Bashman

"Reno Joins Criticism of Anti-Terror Strategy; Former Prosecutors Urge Court to Act Against Indefinite Detention of Suspects": This article appears today in The Washington Post.
Posted at 07:58 AM by Howard Bashman

"Police interview injured Chappaqua man whose wife was shot by road assailant": The Journal News of Westchester, New York today contains an article that begins, "A disbarred lawyer whose wife was killed when they were shot under mysterious circumstances has been released from the hospital and underwent further questioning by detectives yesterday at his Chappaqua home."

And The New York Times reports today that "Police Question Husband in Westchester Shooting."
Posted at 07:55 AM by Howard Bashman

"Man's Deportation to Somalia Sets Off a Wave of Concern Over Safety": The New York Times contains this article today.
Posted at 07:45 AM by Howard Bashman

"Court says blogs not liable for 3rd parties; Calif. ruling also covers site owners": This article appears today in USA Today.
Posted at 07:35 AM by Howard Bashman

"What's new? Justices may help define standard in patent case." Joan Biskupic has this article today in USA Today.
Posted at 07:33 AM by Howard Bashman

"Listening in on Detainee Hearings": This audio segment (RealPlayer required) appeared on yesterday evening's broadcast of NPR's "All Things Considered."
Posted at 07:30 AM by Howard Bashman

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